21 CFR 1305.03 Distributions requiring order forms.
An order form (DEA Form 222) is required for each distribution of a
controlled substance listed in Schedule I or II, except for the
following:
(a) The exportation of such substances from the United States in
conformity with the Act;
(b) The delivery of such substances to or by a common or contract
carrier for carriage in the lawful and usual course of its business, or
to or by a warehouseman for storage in the lawful and usual course of
its business (but excluding such carriage or storage by the owner of the
substance in connection with the distribution to a third person);
(c) The procurement of a sample of such substances by an exempt law
enforcement official pursuant to 1301.26(b) of this chapter, provided
that the receipt required by that section is used and is preserved in
the manner prescribed in this part for order forms;
(d) The procurement of such substances by a civil defense or disaster
relief organization, pursuant to 1301.27 of this chapter, provided that
the Civil Defense Emergency Order Form required by that section is used
and is preserved with other records of the registrant; and
(e) The purchase of such sustances by the master or first officer of
a vessel pursuant to 1301.28 of this chapter: Provided, That copies of
the record of sale are generated, distributed and preserved by the
vendor according to that section.
(f) The delivery of such substances to a registered analytical
laboratory, or its agent approved by DEA, from an anonymous source for
the analysis of the drug sample, provided the laboratory has obtained a
written waiver of the order form requirement from the Special Agent in
Charge of the Area in which the laboratory is located, which waiver may
be granted upon agreement of the laboratory to conduct its activities in
accordance with Administration guidelines.
(36 FR 7796, Apr. 24, 1971, as amended at 37 FR 15920, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 39 FR 15031,
Apr. 30, 1974; 47 FR 41735, Sept. 22, 1982; 50 FR 31590, Aug. 5, 1985;
51 FR 5320, Feb. 13, 1986; 53 FR 4963, Feb. 19, 1988)
21 CFR 1305.04 Persons entitled to obtain and execute order forms.
(a) Order forms may be obtained only by persons who are registered
under section 303 of the Act (21 U.S.C. 823) to handle controlled
substances listed in Schedules I and II, and by persons who are
registered under section 1008 of the Act (21 U.S.C. 958) to export such
substances. Persons not registered to handle controlled substances
listed in Schedule I or II and persons registered only to import
controlled substances listed in any schedule are not entitled to obtain
order forms.
(b) An order form may be executed only on behalf of the registrant
named thereon and only if his registration as to the substances being
purchased has not expired or been revoked or suspended.
21 CFR 1305.05 Procedure for obtaining order forms.
(a) Order Forms are issued in mailing envelopes containing either
seven or fourteen forms, each form containing an original duplicate and
triplicate copy (respectively, Copy 1, Copy 2, and Copy 3). A limit,
which is based on the business activity of the registrant, will be
imposed on the number of order forms which will be furnished on any
requisition unless additional forms are specifically requested and a
reasonable need for such additional forms is shown.
(b) Any person applying for a registration which would entitle him to
obtain order forms may requisition such forms by so indicating on the
application form; order forms will be supplied upon the registration of
the applicant. Any person holding a registration entitling him to
obtain order forms may requisition such forms for the first time by
contacting any Division Office or the Registration Unit of the
Administration. Any person already holding order forms may requisition
additional forms on DEA Form 222a which is mailed to a registrant
approximately 30 days after each shipment of order forms to that
registrant or by contacting any Division Office or the Registration Unit
of the Administration. All requisition forms (DEA Form 222a) shall be
submitted to the Registration Unit, Drug Enforcement Administration,
Department of Justice, Post Office Box 28083, Central Station,
Washington, DC 20005.
(c) Each requisition shall show the name, address, and registration
number of the registrant and the number of books of order forms desired.
Each requisition shall be signed and dated by the same person who
signed the most recent application for registration or for
reregistration, or by any person authorized to obtain and execute order
forms by a power of attorney pursuant to 1305.07.
(d) Order forms will be serially numbered and issued with the name,
address and registration number of the registrant, the authorized
activity and schedules of the registrant. This information cannot be
altered or changed by the registrant; any errors must be corrected by
the Registration Unit of the Administration by returning the forms with
notification of the error.
(36 FR 7796, Apr. 24, 1971, as amended at 36 FR 18732, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 51 FR
5319, Feb. 13, 1986; 53 FR 4963, Feb. 19, 1988)
21 CFR 1305.06 Procedure for executing order forms.
(a) Order forms shall be prepared and executed by the purchaser
simultaneously in triplicate by means of interleaved carbon sheets which
are part of the DEA Form 222. Order forms shall be prepared by use of a
typewriter, pen, or indelible pencil.
(b) Only one item shall be entered on each numbered line. There are
ten lines on each order form. If one order form is not sufficient to
include all items in an order, additional forms shall be used. Order
forms for carfentanil etorphine hydrochloride and diprenorphine shall
contain only these substances. The total number of items ordered shall
be noted on that form in the space provided.
(c) An item shall consist of one or more commercial or bulk
containers of the same finished or bulk form and quantity of the same
substance; a separate item shall be made for each commercial or bulk
container of different finished or bulk form, quantity or substance.
For each item the form shall show the name of the article ordered, the
finished or bulk form of the article (e.g., 10-milligram tablet,
10-milligram concentration per fluid ounce or milliliter, or U.S.P.),
the number of units or volume in each commercial or bulk container
(e.g., 100-tablet bottle or 3-milliliter vial) or the quantity or volume
of each bulk container (e.g., 10 kilograms), the number of commercial or
bulk containers ordered, and the name and quantity per unit of the
controlled substance or substances contained in the article if not in
pure form. The catalogue number of the article may be included at the
discretion of the purchaser.
(d) The name and address of the supplier from whom the controlled
substances are being ordered shall be entered on the form. Only one
supplier may be listed on any one form.
(e) Each order form shall be signed and dated by a person authorized
to sign a requisition for order forms on behalf of the purchaser
pursuant to 1305.05(c). The name of the purchaser, if different from
the individual signing the order form, shall also be inserted in the
signature space. Unexecuted order forms may be kept and may be executed
at a location other than the registered location printed on the form,
provided that all unexecuted forms are delivered promptly to the
registered location upon an inspection of such location by any officer
authorized to make inspections, or to enforce, any Federal, State, or
local law regarding controlled substances.
(36 FR 7796, Apr. 24, 1971, as amended at 36 FR 13386, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 39 FR 17838,
May 21, 1974; 53 FR 4963, Feb. 19, 1988; 54 FR 33674, Aug. 16, 1989)
21 CFR 1305.07 Power of attorney.
Any purchaser may authorize one or more individuals, whether or not
located at the registered location of the purchaser, to obtain and
execute order forms on his behalf by executing a power of attorney for
each such individual. The power of attorney shall be signed by the same
person who signed (or was authorized to sign, pursuant to 1301.32(f) of
this chapter or 1311.32(f) of this chapter) the most recent application
for registration or reregistration and by the individual being
authorized to obtain and execute order forms. The power of attorney
shall be filed with the executed order forms of the purchaser, and shall
be retained for the same period as any order form bearing the signature
of the attorney. The power of attorney shall be available for
inspection together with other order form records. Any power of
attorney may be revoked at any time by executing a notice of revocation,
signed by the person who signed (or was authorized to sign) the power of
attorney or by a successor, whoever signed the most recent application
for registration or reregistration, and filing it with the power of
attorney being revoked. The form for the power of attorney and notice
of revocation shall be similar to the following:
-------------------- (Name of registrant) --------------------
(Address of registrant) -------------------- (DEA registration number)
I, ------------------------ (name of person granting power), the
undersigned, who is authorized to sign the current application for
registration of the above-named registrant under the Controlled
Substances Act or Controlled Substances Import and Export Act, have
made, constituted, and appointed, and by these presents, do make,
constitute, and appoint ------------------------ (name of
attorney-in-fact), my true and lawful attorney for me in my name, place,
and stead, to execute applications for books of official order forms and
to sign such order forms in requisition for Schedule I and II controlled
substances, in accordance with section 308 of the Controlled Substances
Act (21 U.S.C. 828) and part 305 of Title 21 of the Code of Federal
Regulations. I hereby ratify and confirm all that said attorney shall
lawfully do or cause to be done by virtue hereof.
(Signature of person granting power)
I, ---------------------- (name of attorney-in-fact), hereby affirm
that I am the person named herein as attorney-in-fact and that the
signature affixed hereto is my signature.
(Signature of attorney-in-fact)
Witnesses:
1. ------------------------ .
2. ------------------------ .
Signed and dated on the ------ day of ---------------- , 19 ---- , at
---------------- .
The foregoing power of attorney is hereby revoked by the undersigned,
who is authorized to sign the current application for registration of
the above-named registrant under the Controlled Substances Act of the
Controlled Substances Import and Export Act. Written notice of this
revocation has been given to the attorney-in-fact ---------------- this
same day.
(Signature of person revoking power)
Witnesses:
1. ------------------------ .
2. ------------------------ .
Signed and dated on the ------ day of ---------------- , 19 ---- , at
---------------- .
(37 FR 15921, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973)
21 CFR 1305.08 Persons entitled to fill order forms.
An order form may be filled only by a person registered as a
manufacturer or distributor of controlled substances listed in Schedule
I or II under section 303 of the Act (21 U.S.C. 823) or as an importer
of such substances under section 1008 of the Act (21 U.S.C. 958),
except for the following:
(a) A person registered to dispense such substances under section 303
of the Act, or to export such substances under section 1008 of the Act,
if he is discontinuing business or if his registration is expiring
without reregistration, may dispose of any controlled substances listed
in Schedule I or II in his possession pursuant to order forms in
accordance with 1307.14 of this chapter;
(b) A person who has obtained any controlled substance in Schedule I
or II by order form may return such substance, or portion thereof, to
the person from whom he obtained the substance or the manufacturer of
the substance pursuant to the order form of the latter person;
(c) A person registered to dispense such substances may distribute
such substances to another dispenser pursuant to, and only in the
circumstances described in, 1307.11 of this chapter; and
(d) A person registered or authorized to conduct chemical analysis or
research with controlled substances may distribute a controlled
substance listed in Schedule I or II to another person registered or
authorized to conduct chemical analysis, instructional activities, or
research with such substances pursuant to the order form of the latter
person, if such distribution is for the purpose of furthering such
chemical analysis, instructional activities, or research.
(e) A person registered as a compounder of narcotic substances for
use at off-site locations in conjunction with a narcotic treatment
program at the compounding location, who is authorized to handle
Schedule II narcotics, is authorized to fill order forms for
distribution of narcotic drugs to off-site narcotic treatment programs
only.
(36 FR 7796, Apr. 24, 1971, as amended at 36 FR 13386, July 21, 1971;
36 FR 18732, Sept. 21, 1971; 37 FR 15921, Aug. 8, 1972. Redesignated
at 38 FR 26609, Sept. 24, 1973)
Editorial Note: For FR citations affecting 1305.08, see the List of
CFR Sections Affected in the Finding Aids section of this volume.
21 CFR 1305.09 Procedure for filling order forms.
(a) The purchaser shall submit Copy 1 and Copy 2 of the order form to
the supplier, and retain Copy 3 in his own files.
(b) The supplier shall fill the order, if possible and if he desires
to do so, and record on Copies 1 and 2 the number of commercial or bulk
containers furnished on each item and the date on which such containers
are shipped to the purchaser. If an order cannot be filled in its
entirety, it may be filled in part and the balance supplied by
additional shipments within 60 days following the date of the order
form. No order form shall be valid more than 60 days after its
execution by the purchaser, except as specified in paragraph (f) of this
section.
(c) The controlled substances shall only be shipped to the purchaser
and at the location printed by the Administration on the order form,
except as specified in paragraph (f) of this section.
(d) The supplier shall retain Copy 1 of the order form for his own
files and forward Copy 2 to the Special Agent in Charge of the Drug
Enforcement Administration in the area in which the supplier is located.
Copy 2 shall be forwarded at the close of the month during which the
order is filled; if an order is filled by partial shipments, Copy 2
shall be forwarded at the close of the month during which the final
shipment is made or during which the 60-day validity period expires.
(e) The purchaser shall record on Copy 3 of the order form the number
of commercial or bulk containers furnished on each item and the dates on
which such containers are received by the purchaser.
(f) Order forms submitted by registered procurement officers of the
Defense Personnel Support Center of Defense Supply Agency for delivery
to armed services establishments within the United States may be shipped
to locations other than the location printed on the order form, and in
partial shipments at different times not to exceed six months from the
date of the order, as designated by the procurement officer when
submitting the order.
(36 FR 7796, Apr. 24, 1971, as amended at 36 FR 18732, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 47 FR
41735, Sept. 22, 1982)
21 CFR 1305.10 Procedure for endorsing order forms.
(a) An order form made out to any supplier who cannot fill all or a
part of the order within the time limitation set forth in 1305.09 may
be endorsed to another supplier for filling. The endorsement hall be
made only by the supplier to whom the order form was first made, shall
state (in the spaces provided on the reverse sides of Copies 1 and 2 of
the order form) the name and address of the second supplier, and shall
be signed by a person authorized to obtain and execute order forms on
behalf of the first supplier. The first supplier may not fill any part
of an order on an endorsed form. The second supplier shall fill the
order, if possible and if he desires to do so, in accordance with
1305.09 (b), (c), and (d), including shipping all substances directly to
the purchaser.
(b) Distributions made on endorsed order forms shall be reported by
the second supplier in the same manner as all other distributions except
that where the name of the supplier is requested on the reporting form,
the second supplier shall record the name, address and registration
number of the first supplier.
21 CFR 1305.11 Unaccepted and defective order forms.
(a) No order form shall be filled if it:
(1) Is not complete, legible, or properly prepared, executed, or
endorsed; or
(2) Shows any alteration, erasure, or change of any description.
(b) If an order form cannot be filled for any reason under this
section, the supplier shall return Copies 1 and 2 to the purchaser with
a statement as to the reason (e.g., illegible or altered). A supplier
may for any reason refuse to accept any order and if a supplier refuses
to accept the order, a statement that the order is not accepted shall be
sufficient for purposes of this paragraph.
(c) When received by the purchaser, Copies 1 and 2 of the order form
and the statement shall be attached to Copy 3 and retained in the files
of the purchaser in accordance with 1305.13. A defective order form may
not be corrected; it must be replaced by a new order form in order for
the order to be filled.
21 CFR 1305.12 Lost and stolen order forms.
(a) If a purchaser ascertains that an unfilled order form has been
lost, he shall execute another in triplicate and a statement containing
the serial number and date of the lost form, and stating that the goods
covered by the first order form were not received through loss of that
order form. Copy 3 of the second form and a copy of the statement shall
be retained with Copy 3 of the order form first executed. A copy of the
statement shall be attached to Copies 1 and 2 of the second order form
sent to the supplier. If the first order form is subsequently received
by the supplier to whom it was directed, the supplier shall mark upon
the face thereof ''Not accepted'' and return Copies 1 and 2 to the
purchaser, who shall attach it to Copy 3 and the statement.
(b) Whenever any used or unused order forms are stolen from or lost
(otherwise than in the course of transmission) by any purchaser or
supplier, he shall immediately upon discovery of such theft or loss,
report the same to the Registration Unit, Drug Enforcement
Administration, Department of Justice, Post Office Box 28083, Central
Station, Washington, DC 20005, stating the serial number of each form
stolen or lost. If the theft or loss includes any original order forms
received from purchasers and the supplier is unable to state the serial
numbers of such order forms, he shall report the date or approximate
date of receipt thereof and the names and addresses of the purchasers.
If an entire book of order forms is lost or stolen, and the purchaser is
unable to state the serial numbers of the order forms contained therein,
he shall report, in lieu of the numbers of the forms contained in such
book, the date or approximate date of issuance thereof. If any unused
order form reported stolen or lost is subsequently recovered or found,
the Registration Branch of the Administration shall immediately be
notified.
(36 FR 7796, Apr. 24, 1971, as amended at 36 FR 13386, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 51 FR 5319,
Feb. 13, 1986)
21 CFR 1305.13 Preservation of order forms.
(a) The purchaser shall retain Copy 3 of each order form which has
been filled. He shall also retain in his files all copies of each
unaccepted or defective order form and each statement attached thereto.
(b) The supplier shall retain Copy 1 of each order form which he has
filled.
(c) Order forms must be maintained separately from all other records
of the registrant. Order forms are required to be kept available for
inspection for a period of 2 years. If a purchaser has several
registered locations, he must retain Copy 3 of the executed order forms
and any attached statements or other related documents (not including
unexecuted order forms which may be kept elsewhere pursuant to
1305.06(e)) at the registered location printed on the order form.
(d) The supplier of carfentanil etorphine hydrochloride and
diprenorphine shall maintain order forms for these substances separately
from all other order forms and records required to be maintained by the
registrant.
(36 FR 7796, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 39 FR 17839, May 21, 1974; 54 FR 33674, Aug. 16,
1989)
21 CFR 1305.14 Return of unused order forms.
If the registration of any purchaser terminates (because the
purchaser dies, ceases legal existence, discontinues business or
professional practice, or changes his name or address as shown on his
registration) or is suspended or revoked pursuant to 1301.45 or
1301.46 of this chapter as to all controlled substances listed in
Schedules I and II for which he is registered, he shall return all
unused order forms for such substance to the nearest office of the
Administration.
(36 FR 7796, Apr. 24, 1971, as amended at 36 FR 18732, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1305.15 Cancellation and voiding of order forms.
(a) A purchaser may cancel part or all of an order on an order form
by notifying the supplier in writing of such cancellation. The supplier
shall indicate the cancellation on Copies 1 and 2 of the order form by
drawing a line through the canceled items and printing ''canceled'' in
the space provided for number of items shipped.
(b) A supplier may void part or all of an order on an order form by
notifying the purchaser in writing of such voiding. The supplier shall
indicate the voiding in the manner prescribed for cancellation in
paragraph (a) of this section.
(c) No cancellation or voiding permitted by this section shall affect
in any way contract rights of either the purchaser or the supplier.
(36 FR 7796, Apr. 24, 1971, as amended at 36 FR 13386, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1305.16 Special procedure for filling certain order forms.
(a) The purchaser of carfentanil etorphine hydrochloride or
diprenorphine shall submit copy 1 and 2 of the order form to the
supplier and retain copy 3 in his own files.
(b) The supplier, if he determines that the purchaser is a
veterinarian engaged in zoo and exotic animal practice, wildlife
management programs and/or research and authorized by the Administrator
to handle these substances shall fill the order in accordance with the
procedures set forth in 1305.09 except that:
(1) Order forms for carfentanil etorphine hydrochloride and
diprenorphine shall only contain these substances in reasonable
quantities and (2) the substances shall only be shipped to the purchaser
at the location printed by the Administration upon the order form under
secure conditions using substantial packaging material with no markings
on the outside which would indicate the content.
(39 FR 17839, May 21, 1974, as amended at 54 FR 33674, Aug. 16, 1989)
21 CFR 1305.16 PART 1306 -- PRESCRIPTIONS
Sec.
1306.01 Scope of Part 1306.
1306.02 Definitions.
1306.03 Persons entitled to issue prescriptions.
1306.04 Purpose of issue of prescription.
1306.05 Manner of issuance of prescriptions.
1306.06 Persons entitled to fill prescriptions.
1306.07 Administering or dispensing of narcotic drugs.
1306.11 Requirement of prescription.
1306.12 Refilling prescriptions.
1306.13 Partial filling of prescriptions.
1306.14 Labeling of substances.
1306.15 Filing of prescriptions.
1306.21 Requirement of prescription.
1306.22 Refilling of prescriptions.
1306.23 Partial filling of prescriptions.
1306.24 Labeling of substances.
1306.25 Filing prescriptions.
1306.26 Transfer between pharmacies of presription information for
Schedules III, IV, and V controlled substances for refill purposes.
1306.31 Requirement of prescription.
1306.32 Dispensing without prescription.
Authority: 21 U.S.C. 821, 829, 871(b), unless otherwise noted.
Source: 36 FR 7799, Apr. 24, 1971; 36 FR 13386, July 21, 1971,
unless otherwise noted. Redesignated at 38 FR 26609, Sept. 24, 1973.
21 CFR 1305.16 General Information
21 CFR 1306.01 Scope of Part 1306.
Rules governing the issuance, filling and filing of prescriptions
pursuant to section 309 of the Act (21 U.S.C. 829) are set forth
generally in that section and specifically by the sections of this part.
21 CFR 1306.02 Definitions.
As used in this part, the following terms shall have the meanings
specified:
(a) The term Act means the Controlled Substances Act (84 Stat. 1242;
21 U.S.C. 801).
(b) The term individual practitioner means a physician, dentist,
veterinarian, or other individual licensed, registered, or otherwise
permitted, by the United States or the jurisdiction in which he
practices, to dispense a controlled substance in the course of
professional practice, but does not include a pharmacist, a pharmacy, or
an institutional practitioner.
(c) The term institutional practitioner means a hospital or other
person (other than an individual) licensed, registered, or otherwise
permitted, by the United States or the jurisdiction in which it
practices, to dispense a controlled substance in the course of
professional practice, but does not include a pharmacy.
(d) The term pharmacist means any pharmacist licensed by a State to
dispense controlled substances, and shall include any other person
(e.g., a pharmacist intern) authorized by a State to dispense controlled
substances under the supervision of a pharmacist licensed by such State.
(e) A Long Term Care Facility (LTCF) means a nursing home, retirement
care, mental care or other facility or institution which provides
extended health care to resident patients.
(f) The term prescription means an order for medication which is
dispensed to or for an ultimate user but does not include an order for
medication which is dispensed for immediate administration to the
ultimate used. (e.g., an order to dispense a drug to a bed patient for
immediate administration in a hospital is not a prescription.)
(g) The terms register and registered refer to registration required
and permitted by section 303 of the Act (21 U.S.C. 823).
(h) Any term not defined in this section shall have the definition
set forth in section 102 of the Act (21 U.S.C. 802) or 1301.02 of this
chapter.
(21 U.S.C. 801, et seq.)
(36 FR 7799, Apr. 24, 1971, as amended at 36 FR 18732, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973, and further amended
at 45 FR 54330, July 15, 1980)
21 CFR 1306.03 Persons entitled to issue prescriptions.
(a) A prescription for a controlled substance may be issued only by
an individual practitioner who is:
(1) authorized to prescribe controlled substances by the jurisdiction
in which he is licensed to practice his profession and
(2) either registered or exempted from registration pursuant to
1301.24(c) and 1301.25 of this chapter.
(b) A prescription issued by an individual practitioner may be
communicated to a pharmacist by an employee or agent of the individual
practitioner.
(36 FR 7799, Apr. 24, 1971, as amended at 36 FR 18732, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1306.04 Purpose of issue of prescription.
(a) A prescription for a controlled substance to be effective must be
issued for a legitimate medical purpose by an individual practitioner
acting in the usual course of his professional practice. The
responsibility for the proper prescribing and dispensing of controlled
substances is upon the prescribing practitioner, but a corresponding
responsibility rests with the pharmacist who fills the prescription. An
order purporting to be a prescription issued not in the usual course of
professional treatment or in legitimate and authorized research is not a
prescription within the meaning and intent of section 309 of the Act (21
U.S.C. 829) and the person knowingly filling such a purported
prescription, as well as the person issuing it, shall be subject to the
penalties provided for violations of the provisions of law relating to
controlled substances.
(b) A prescription may not be issued in order for an individual
practitioner to obtain controlled substances for supplying the
individual practitioner for the purpose of general dispensing to
patients.
(c) A prescription may not be issued for the dispensing of narcotic
drugs listed in any schedule for ''detoxification treatment'' or
''maintenance treatment'' as defined in Section 102 of the Act (21
U.S.C. 802).
(36 FR 7799, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 39 FR 37986, Oct. 25, 1974)
21 CFR 1306.05 Manner of issuance of prescriptions.
(a) All prescriptions for controlled substances shall be dated as of,
and signed on, the day when issued and shall bear the full name and
address of the patient, the drug name, strength, dosage form, quantity
prescribed, directions for use and the name, address and registration
number of the practitioner. A practitioner may sign a prescription in
the same manner as he would sign a check or legal document (e.g., J.H.
Smith or John H. Smith). Where an oral order is not permitted,
prescriptions shall be written with ink or indelible pencil or
typewriter and shall be manually signed by the practitioner. The
prescriptions may be prepared by the secretary or agent for the
signature of a practitioner, but the prescribing practitioner is
responsible in case the prescription does not conform in all essential
respects to the law and regulations. A corresponding liability rests
upon the pharmacist who fills a prescription not prepared in the form
prescribed by these regulations.
(b) An intern, resident, or foreign-trained physician, or physician
on the staff of a Veterans Administration facility, exempted from
registration under 1301.24(c) shall include on all prescriptions issued
by him the registration number of the hospital or other institution and
the special internal code number assigned to him by the hospital or
other institution as provided in 1301.24 (c), in lieu of the
registration number of the practitioner required by this section. Each
written prescription shall have the name of the physician stamped,
typed, or handprinted on it, as well as the signature of the physician.
(c) An official exempted from registration under 1301.25 shall
include on all prescriptions issued by him his branch of service or
agency (e.g., ''U.S. Army'' or ''Public Health Service'') and his
service identification number, in lieu of the registration number of the
practitioner required by this section. The service identification
number for a Public Health Service employee is his Social Security
identification number. Each prescription shall have the name of the
officer stamped, typed, or handprinted on it, as well as the signature
of the officer.
(36 FR 7799, Apr. 24, 1971, as amended at 36 FR 18733, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 56 FR
25026, June 3, 1991)
21 CFR 1306.06 Persons entitled to fill prescriptions.
A prescription for controlled substances may only be filled by a
pharmacist acting in the usual course of his professional practice and
either registered individually or employed in a registered pharmacy or
registered institutional practitioner.
21 CFR 1306.07 Administering or dispensing of narcotic drugs.
(a) The administering or dispensing directly (but not prescribing) of
narcotic drugs listed in any schedule to a narcotic drug dependent
person for ''detoxification treatment'' or ''maintenance treatment'' as
defined in section 102 of the Act (21 U.S.C. 802) shall be deemed to be
within the meaning of the term ''in the course of his professional
practice or research'' in section 308(e) and section 102(20) of the Act
(21 U.S.C. 828 (e)): Provided, That the practitioner is separately
registered with the Attorney General as required by section 303(g) of
the Act (21 U.S.C. 823(g)) and then thereafter complies with the
regulatory standards imposed relative to treatment qualification,
security, records and unsupervised use of drugs pursuant to such Act.
(b) Nothing in this section shall prohibit a physician who is not
specifically registered to conduct a narcotic treatment program from
administering (but not prescribing) narcotic drugs to a person for the
purpose of relieving acute withdrawal symptoms when necessary while
arrangements are being made for referral for treatment. Not more than
one day's medication may be administered to the person or for the
person's use at one time. Such emergency treatment may be carried out
for not more than three days and may not be renewed or extended.
(c) This section is not intended to impose any limitations on a
physician or authorized hospital staff to administer or dispense
narcotic drugs in a hospital to maintain or detoxify a person as an
incidental adjunct to medical or surgical treatment of conditions other
than addiction, or to administer or dispense narcotic drugs to persons
with intractable pain in which no relief or cure is possible or none has
been found after reasonable efforts.
(39 FR 37986, Oct. 25, 1974)
21 CFR 1306.07 Controlled Substances Listed in Schedule II
21 CFR 1306.11 Requirement of prescription.
(a) A pharmacist may dispense directly a controlled substance listed
in Schedule II, which is a prescription drug as determined under the
Federal Food, Drug, and Cosmetic Act, only pursuant to a written
prescription signed by the prescribing individual practitioner, except
as provided in paragraph (d) of this section.
(b) An individual practitioner may administer or dispense directly a
controlled substance listed in Schedule II in the course of his
professional practice without a prescription, subject to 1306.07.
(c) An institutional practitioner may administer or dispense directly
(but not prescribe) a controlled substance listed in Schedule II only
pursuant to a written prescription signed by the prescribing individual
practitioner or to an order for medication made by an individual
practitioner which is dispensed for immediate administration to the
ultimate user.
(d) In the case of an emergency situation, as defined by the
Secretary in 290.10 of this title, a pharmacist may dispense a
controlled substance listed in Schedule II upon receiving oral
authorization of a prescribing individual practitioner, provided that:
(1) The quantity prescribed and dispensed is limited to the amount
adequate to treat the patient during the emergency period (dispensing
beyond the emergency period must be pursuant to a written prescription
signed by the prescribing individual practitioner);
(2) The prescription shall be immediately reduced to writing by the
pharmacist and shall contain all information required in 1306.05,
except for the signature of the prescribing individual practitioner;
(3) If the prescribing individual practitioner is not known to the
pharmacist, he must make a reasonable effort to determine that the oral
authorization came from a registered individual practitioner, which may
include a callback to the prescribing individual practitioner using his
phone number as listed in the telephone directory and/or other good
faith efforts to insure his identity; and
(4) Within 72 hours after authorizing an emergency oral prescription,
the prescribing individual practitioner shall cause a written
prescription for the emergency quantity prescribed to be delivered to
the dispensing pharmacist. In addition to conforming to the
requirements of 1306.05, the prescription shall have written on its
face ''Authorization for Emergency Dispensing,'' and the date of the
oral order. The written prescription may be delivered to the pharmacist
in person or by mail, but if delivered by mail it must be postmarked
within the 72-hour period. Upon receipt, the dispensing pharmacist
shall attach this prescription to the oral emergency prescription which
had earlier been reduced to writing. The pharmacist shall notify the
nearest office of the Administration if the prescribing individual
practitioner fails to deliver a written prescription to him; failure of
the pharmacist to do so shall void the authority conferred by this
paragraph to dispense without a written prescription of a prescribing
individual practitioner.
(36 FR 7799, Apr. 24, 1971, as amended at 36 FR 18733, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973 and amended at 53 FR
4964, Feb. 19, 1988)
21 CFR 1306.12 Refilling prescriptions.
The refilling of a prescription for a controlled substance listed in
Schedule II is prohibited.
21 CFR 1306.13 Partial filling of prescriptions.
(a) The partial filling of a prescription for a controlled substance
listed in Schedule II is permissible, if the pharmacist is unable to
supply the full quantity called for in a written or emergency oral
prescription and he makes a notation of the quantity supplied on the
face of the written prescription (or written record of the emergency
oral prescription). The remaining portion of the prescription may be
filled within 72 hours of the first partial filling; however, if the
remaining portion is not or cannot be filled within the 72-hour period,
the pharmacist shall so notify the prescribing individual practitioner.
No further quantity may be supplied beyond 72 hours without a new
prescription.
(b) A prescription for a Schedule II controlled substance written for
a patient in a Long Term Care Facility (LTCF) or for a patient with a
medical diagnosis documenting a terminal illness may be filled in
partial quantities to include individual dosage units. If there is any
question whether a patient may be classified as having a terminal
illness, the pharmacist must contract the practitioner prior to
partially filling the prescription. Both the pharmacist and the
prescribing practitioner have a corresponding responsibility to assure
that the controlled substance is for a terminally ill patient. The
pharmacist must record on the prescription whether the patient is
''terminally ill'' or an ''LTCF patient.'' A prescription that is
partially filled and does not contain the notation ''terminally ill'' or
''LTCF patient'' shall be deemed to have been filled in violation of the
Act. For each partial filling, the dispensing pharmacist shall record
on the back of the prescription (or on another appropriate record,
uniformly maintained, and readily retrievable) the date of the partial
filling, quantity dispensed, remaining quantity authorized to be
dispensed, and the identification of the dispensing pharmacist. Prior
to any subsequent partial filling the pharmacist is to determine that
the additional partial filling is necessary. The total quantity of
Schedule II controlled substances dispensed in all partial fillings must
not exceed the total quantity prescribed. Schedule II prescriptions for
patients in a LTCF or patients with a medical diagnosis documenting a
terminal illness shall be valid for a period not to exceed 60 days from
the issue date unless sooner terminated by the discontinuance of
medication.
(c) Information pertaining to current Schedule II prescriptions for
patients in a LTCF or for patients with a medical diagnosis documenting
a terminal illness may be maintained in a computerized system if this
system has the capability to permit:
(1) Output (display or printout) of the original prescription number,
date of issue, identification of prescribing individual practitioner,
identification of patient, address of the LTCF or address of the
hospital or residence of the patient, identification of medication
authorized (to include dosage, form, strength and quantity), listing of
the partial fillings that have been dispensed under each prescription
and the information required in 1306.13(b).
(2) Immediate (real time) updating of the prescription record each
time a partial filling of the prescription is conducted.
(3) Retrieval of partially filled Schedule II prescription
information is the same as required by 1306.22(b) (4) and (5) for
Schedule III and IV prescription refill information.
(21 U.S.C. 801, et seq.)
(36 FR 7799, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 45 FR 54330, July 15, 1980; 56 FR 25027, June 3,
1991)
21 CFR 1306.14 Labeling of substances.
(a) The pharmacist filling a written or emergency oral prescription
for a controlled substance listed in Schedule II shall affix to the
package a label showing date of filling, the pharmacy name and address,
the serial number of the prescription, the name of the patient, the name
of the prescribing practitioner, and directions for use and cautionary
statements, if any, contained in such prescription or required by law.
(b) The requirements of paragraph (a) of this section do not apply
when a controlled substance listed in Schedule II is prescribed for
administration to an ultimate user who is institutionalized: Provided,
That:
(1) Not more than 7-day supply of the controlled substance listed in
Schedule II is dispensed at one time;
(2) The controlled substance listed in Schedule II is not in the
possession of the ultimate user prior to the administration;
(3) The institution maintains appropriate safeguards and records
regarding the proper administration, control, dispensing, and storage of
the controlled substance listed in Schedule II; and
(4) The system employed by the pharmacist in filling a prescription
is adequate to identify the supplier, the product, and the patient, and
to set forth the directions for use and cautionary statements, if any,
contained in the prescription or required by law.
(36 FR 13368, July 21, 1971, as amended at 37 FR 15921, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1306.15 Filing of prescriptions.
All written prescriptions and written records of emergency oral
prescriptions shall be kept in accordance with requirements of
1304.04(h) of this chapter.
(36 FR 7799, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 51 FR 5320, Feb. 13, 1986)
21 CFR 1306.15 Controlled Substances Listed in Schedules III and IV
21 CFR 1306.21 Requirement of prescription.
(a) A pharmacist may dispense directly a controlled substance listed
in Schedule III or IV, which is a prescription drug as determined under
the Federal Food, Drug, and Cosmetic Act, only pursuant to either a
written prescription signed by a prescribing individual practitioner or
an oral prescription made by a prescribing individual practitioner and
promptly reduced to writing by the pharmacist containing all information
required in 1306.05, except for the signature of the prescribing
individual practitioner.
(b) An individual practitioner may administer or dispense directly a
controlled substance listed in Schedule III or IV in the course of his
professional practice without a prescription, subject to 1306.07.
(c) An institutional practitioner may administer or dispense directly
(but not prescribe) a controlled substance listed in Schedule III or IV
pursuant to a written prescription signed by a prescribing individual
practitioner, or pursuant to an oral prescription made by a prescribing
individual practitioner and promptly reduced to writing by the
pharmacist (containing all information required in 1306.05 except for
the signature of the prescribing individual practitioner), or pursuant
to an order for medication made by an individual practitioner which is
dispensed for immediate administration to the ultimate user, subject to
1306.07.
(36 FR 7799, Apr. 24, 1971, as amended at 36 FR 18733, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1306.22 Refilling of prescriptions.
(a) No prescription for a controlled substance listed in Schedule III
or IV shall be filled or refilled more than six months after the date on
which such prescription was issued and no such prescription authorized
to be refilled may be refilled more than five times. Each refilling of
a prescription shall be entered on the back of the prescription or on
another appropriate document. If entered on another document, such as a
medication record, the document must be uniformly maintained and readily
retrievable. The following information must be retrievable by the
prescription number consisting of the name and dosage form of the
controlled substance, the date filled or refilled, the quantity
dispensed, initials of the dispensing pharmacist for each refill, and
the total number of refills for that prescription. If the pharmacist
merely initials and dates the back of the prescription it shall be
deemed that the full face amount of the prescription has been dispensed.
The prescribing practitioner may authorize additional refills of
Schedule III or IV controlled substances on the original prescription
through an oral refill authorization transmitted to the pharmacist
provided the following conditions are met:
(1) The total quantity authorized, including the amount of the
original prescription, does not exceed five refills nor extend beyond
six months from the date of issue of the original prescription.
(2) The pharmacist obtaining the oral authorization records on the
reverse of the original prescription the date, quantity of refill,
number of additional refills authorized, and initials the prescription
showing who received the authorization from the prescribing practioner
who issued the original prescription.
(3) The quantity of each additional refill authorized is equal to or
less than the quantity authorized for the initial filling of the
original prescription.
(4) The prescribing practitioner must execute a new and separate
prescription for any additional quantities beyond the five refill,
six-month limitation.
(b) As an alternative to the procedures provided by subsection (a),
an automated data processing system may be used for the storage and
retrival of refill information for prescription orders for controlled
substances in Schedule III and IV, subject to the following conditions:
(1) Any such proposed computerized system must provide on-line
retrieval (via CRT display or hard-copy printout) of original
prescription order information for those prescription orders which are
currently authorized for refilling. This shall include, but is not
limited to, data such as the original prescription number, date of
issuance of the original prescription order by the practitioner, full
name and address of the patient, name, address, and DEA registration
number of the practitioner, and the name, strength, dosage form,
quantity of the controlled substance prescribed (and quantity dispensed
if different from the quantity prescribed), and the total number of
refills authorized by the prescribing practitioner.
(2) Any such proposed computerized system must also provide on-line
retrieval (via CRT display or hard-copy printout) of the current refill
history for Schedule III or IV controlled substance prescription orders
(those authorized for refill duing the past six months.) This refill
history shall include, but is not limited to, the name of the controlled
substance, the date of refill, the quantity dispensed, the
identification code, or name or initials of the dispensing pharmacist
for each refill and the total number of refills dispensed to date for
that prescription order.
(3) Documentation of the fact that the refill information entered
into the computer each time a pharmacist refills an original
prescription order for a Schedule III or IV controlled substance is
correct must be provided by the individual pharmacist who makes use of
such a system. If such a system provides a hard-copy printout of each
day's controlled substance prescription order refill data, that printout
shall be verified, dated, and signed by the individual pharmacist who
refilled such a prescription order. The individual pharmacist must
verify that the data indicated is correct and then sign this document in
the same manner as he would sign a check or legal document (e.g., J. H.
Smith, or John H. Smith). This document shall be maintained in a
separate file at that pharmacy for a period of two years from the
dispensing date. This printout of the day's controlled substance
prescription order refill data must be provided to each pharmacy using
such a computerized system within 72 hours of the date on which the
refill was dispensed. It must be verified and signed by each pharmacist
who is involved with such dispensing. In lieu of such a printout, the
pharmacy shall maintain a bound log book, or separate file, in which
each individual pharmacist involved in such dispensing shall sign a
statement (in the manner previously described) each day, attesting to
the fact that the refill information entered into the computer that day
has been reviewed by him and is correct as shown. Such a book or file
must be maintained at the pharmacy employing such a system for a period
of two years after the date of dispensing the appropriately authorized
refill.
(4) Any such computerized system shall have the capability of
producing a printout of any refill data which the user pharmacy is
responsible for maintaining under the Act and its implementing
regulations. For example, this would include a refill-by-refill audit
trail for any specified strength and dosage form of any controlled
substance (by either brand or generic name or both). Such a printout
must include name of the prescribing practitioner, name and address of
the patient, quantity dispensed on each refill, date of dispensing for
each refill, name or identification code of the dispensing pharmacist,
and the number of the original prescription order. In any computerized
system employed by a user pharmacy the central recordkeeping location
must be capable of sending the printout to the pharmacy within 48 hours,
and if a DEA Special Agent or Compliance Investigator requests a copy of
such printout from the user pharmacy, it must, if requested to do so by
the Agent or Investigator, verify the printout transmittal capability of
its system by documentation (e.g., postmark).
(5) In the event that a pharmacy which employs such a computerized
system experiences system down-time, the pharmacy must have an auxiliary
procedure which will be used for documentation of refills os Schedule
III and IV controlled substance prescription orders. This auxiliary
procedure must insure that refills are authorized by the original
prescription order, that the maximum number of refills has not been
exceeded, and that all of the appropriate data is retained for on-line
data entry as soon as the computer system is available for use again.
(c) When filing refill information for original prescription orders
for Schedule III or IV controlled substances, a pharmacy may use only
one of the two systems described in paragraphs (a) or (b) of this
section.
(36 FR 7799, Apr. 24, 1971; 36 FR 13386, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 42 FR 28878,
June 6, 1977; 45 FR 44266, July 1, 1980; 52 FR 3605, Feb. 5, 1987)
21 CFR 1306.23 Partial filling of prescriptions.
The partial filling of a prescription for a controlled substance
listed in Schedule III or IV is permissible, provided that:
(a) Each partial filling is recorded in the same manner as a
refilling,
(b) The total quantity dispensed in all partial fillings does not
exceed the total quantity prescribed, and
(c) No dispensing occurs after 6 months after the date on which the
prescription was issued.
(36 FR 18733, Sept. 21, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 51 FR 5320, Feb. 13, 1986)
21 CFR 1306.24 Labeling of substances.
(a) The pharmacist filling a prescription for a controlled substance
listed in Schedule III or IV shall affix to the package a label showing
the pharmacy name and address, the serial number and date of initial
filling, the name of the patient, the name of the practitioner issuing
the prescription, and directions for use and cautionary statements, if
any, contained in such prescription as required by law.
(b) The requirements of paragraph (a) of this section do not apply
when a controlled substance listed in Schedule III or IV is prescribed
for administration to an ultimate user who is institutionalized:
Provided, That:
(1) Not more than a 34-day supply or 100 dosage units, whichever is
less, of the controlled substance listed in Schedule III or IV is
dispensed at one time;
(2) The controlled substance listed in Schedule III or IV is not in
the possession of the ultimate user prior to administration;
(3) The institution maintains appropriate safeguards and records the
proper administration, control, dispensing, and storage of the
controlled substance listed in Schedule III or IV; and
(4) The system employed by the pharmacist in filling a prescription
is adequate to identify the supplier, the product and the patient, and
to set forth the directions for use and cautionary statements, if any,
contained in the prescription or required by law.
(36 FR 7799, Apr. 24, 1971. Redesignated at 36 FR 18733, Sept. 21,
1971, and amended at 37 FR 15921, Aug. 8, 1972)
21 CFR 1306.25 Filing prescriptions.
All prescriptions for controlled substances listed in Schedules III
and IV shall be kept in accordance with 1304.04(h) of this chapter.
(36 FR 7799, Apr. 24, 1971. Redesignated at 36 FR 18733, Sept. 21,
1971, and amended at 51 FR 5320, Feb. 13, 1986)
21 CFR 1306.26 Transfer between pharmacies of prescription information
for Schedules III, IV, and V controlled substances for refill purposes.
(a) The transfer of original prescription information for a
controlled substance listed in Schedules III, IV or V for the purpose of
refill dispensing is permissible between pharmacies on a one time basis
subject to the following requirements:
(1) The transfer is communicated directly between two licensed
pharmacists and the transferring pharmacist records the following
information:
(i) Write the word ''VOID'' on the face of the invalidated
prescription.
(ii) Record on the reverse of the invalidated prescription the name,
address and DEA registration number of the pharmacy to which it was
transferred and the name of the pharmacist receiving the prescription
information.
(iii) Record the date of the transfer and the name of the pharmacist
transferring the information.
(b) The pharmacist receiving the transferred prescription information
shall reduce to writing the following:
(1) Write the word ''transfer'' on the face of the transferred
prescription.
(2) Provide all information required to be on a prescription pursuant
to 21 CFR 1306.05 and include:
(i) Date of issuance of original prescription;
(ii) Original number of refills authorized on original prescription;
(iii) Date of original dispensing;
(iv) Number of valid refills remaining and date of last refill;
(v) Pharmacy's name, address, DEA registration number and original
prescription number from which the prescription information was
transferred;
(vi) Name of transferor pharmacist.
(3) Both the original and transferred prescription must be maintained
for a period of two years from the date of last refill.
(c) Pharmacies electronically accessing the same prescription record
must satisfy all information requirements of a manual mode for
prescription transferral.
(d) The procedure allowing the transfer of prescription information
for refill purposes is permissible only if allowable under existing
state or other applicable law.
(46 FR 48919, Oct. 5, 1981)
21 CFR 1306.26 Controlled Substances Listed in Schedule V
21 CFR 1306.31 Requirement of prescription.
(a) A pharmacist may dispense directly a controlled substance listed
in Schedule V pursuant to a prescription as required for controlled
substances listed in Schedules III and IV in 1306.21. A prescription
for a controlled substance listed in Schedule V may be refilled only as
expressly authorized by the prescribing individual practitioner on the
prescription; if no such authorization is given, the prescription may
not be refilled. A pharmacist dispensing such substance pursuant to a
prescription shall label the substance in accordance with 1306.24 and
file the prescription in accordance with 1306.25.
(b) An individual practitioner may administer or dispense directly a
controlled substance listed in Schedule V in the course of his
professional practice without a prescription, subject to 1306.07.
(c) An institutional practitioner may administer or dispense directly
(but not prescribe) a controlled substance listed in Schedule V only
pursuant to a written prescription signed by the prescribing individual
practitioner, or pursuant to an oral prescription made by a prescribing
individual practitioner and promptly reduced to writing by the
pharmacist (containing all information required in 1306.05 except for
the signature of the prescribing individual practitioner), or pursuant
to an order for medication made by an individual practitioner which is
dispensed for immediate administration to the ultimate user, subject to
1306.07.
(36 FR 7799, Apr. 24, 1971, as amended at 36 FR 18733, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 51 FR
5320, Feb. 13, 1986)
21 CFR 1306.32 Dispensing without prescription.
A controlled substance listed in Schedule V, and a controlled
substance listed in Schedule II, III, or IV which is not a prescription
drug as determined under the Federal Food, Drug, and Cosmetic Act, may
be dispensed by a pharmacist without a prescription to a purchaser at
retail, provided that:
(a) Such dispensing is made only by a pharmacist (as defined in
1306.02(d)), and not by a nonpharmacist employee even if under the
supervision of a pharmacist (although after the pharmacist has fulfilled
his professional and legal responsibilities set forth in this section,
the actual cash, credit transaction, or delivery, may be completed by a
nonpharmacist);
(b) Not more than 240 cc. (8 ounces) of any such controlled
substance containing opium, nor more than 120 cc. (4 ounces) of any
other such controlled substance nor more than 48 dosage units of any
such controlled substance containing opium, nor more than 24 dosage
units of any other such controlled substance may be dispensed at retail
to the same purchaser in any given 48-hour period;
(c) The purchaser is at least 18 years of age;
(d) The pharmacist requires every purchaser of a controlled substance
under this section not known to him to furnish suitable identification
(including proof of age where appropriate);
(e) A bound record book for dispensing of controlled substances under
this section is maintained by the pharmacist, which book shall contain
the name and address of the purchaser, the name and quantity of
controlled substance purchased, the date of each purchase, and the name
or initials of the pharmacist who dispensed the substance to the
purchaser (the book shall be maintained in accordance with the
recordkeeping requirement of 1304.04 of this chapter); and
(f) A prescription is not required for distribution or dispensing of
the substance pursuant to any other Federal, State or local law.
(36 FR 7799, Apr. 24, 1971, as amended at 36 FR 18733, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1306.32 PART 1307 -- MISCELLANEOUS
Sec.
1307.01 Definitions.
1307.02 Application of State law and other Federal law.
1307.03 Exceptions to regulations.
1307.11 Distribution by dispenser to another practitioner.
1307.12 Manufacture and distribution of narcotic solutions and
compounds by a pharmacist.
1307.13 Distribution to supplier.
1307.14 Distribution upon discontinuance or transfer of business.
1307.15 Incidental manufacture of controlled substances.
1307.21 Procedure for disposing of controlled substances.
1307.22 Disposal of controlled substances by the Administration.
1307.31 Native American Church.
Authority: 21 U.S.C. 821, 822(d), 871(b), unless otherwise noted.
Source: 36 FR 7801, Apr. 24, 1971, unless otherwise noted.
Redesignated at 38 FR 26609, Sept. 24, 1973.
21 CFR 1306.32 General Information
21 CFR 1307.01 Definitions.
As used in this part, the following terms shall have the meanings
specified:
(a) The term Act means the Controlled Substances Act (84 Stat. 1242;
21 U.S.C. 801) and/or the Controlled Substances Import and Export Act
(84 Stat. 1285; 21 U.S.C. 951).
(b) Any term not defined in this section shall have the definition
set forth in section 102 and 1001 of the Act (21 U.S.C. 802 and 951) and
in 1301.02 of this chapter.
21 CFR 1307.02 Application of State law and other Federal law.
Nothing in parts 1301-1308, 1311, 1312, or 1316 of this chapter shall
be construed as authorizing or permitting any person to do any act which
such person is not authorized or permitted to do under other Federal
laws or obligations under international treaties, conventions or
protocols, or under the law of the State in which he desires to do such
act nor shall compliance with such parts be construed as compliance with
other Federal or State laws unless expressly provided in such other
laws.
21 CFR 1307.03 Exceptions to regulations.
Any person may apply for an exception to the application of any
provision of parts 1301-1308, 1311, 1312, or 1316 of this chapter by
filing a written request stating the reasons for such exception.
Requests shall be filed with the Administrator, Drug Enforcement
Administration, Department of Justice, Washington, DC 20537. The
Administrator may grant an exception in his discretion, but in no case
shall he be required to grant an exception to any person which is not
otherwise required by law or the regulations cited in this section.
21 CFR 1307.03 Special Exceptions for Manufacture and Distribution of Controlled Substances
21 CFR 1307.11 Distribution by dispenser to another practitioner.
(a) A practitioner who is registered to dispense a controlled
substance may distribute (without being registered to distribute) a
quantity of such substance to another practitioner for the purpose of
general dispensing by the practitioner to his or its patients:
Provided, That:
(1) The practitioner to whom the controlled substance is to be
distributed is registered under the Act to dispense that controlled
substance;
(2) The distribution is recorded by the distributing practitioner in
accordance with 1304.24(e) of this chapter and by the receiving
practitioner in accordance with 1304.24(c) of this chapter;
(3) If the substance is listed in Schedule I or II, an order form is
used as required in part 1305 of this chapter;
(4) The total number of dosage units of all controlled substances
distributed by the practitioner pursuant to this section and 1301.28 of
this chapter during each calendar year in which the practitioner is
registered to dispense does not exceed 5 percent of the total number of
dosage units of all controlled substances distributed and dispensed by
the practitioner during the same calendar year.
(b) If, during any calendar year in which the practitioner is
registered to dispense, the practitioner has reason to believe that the
total number of dosage units of all controlled substances which will be
distributed by him pursuant to this section and 1301.28 of this chapter
will exceed 5 percent of the total number of dosage units of all
controlled substances distributed and dispensed by him during that
calendar year, the practitioner shall obtain a registration to
distribute controlled substances.
(36 FR 18733, Sept. 21, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 50 FR 31590, Aug. 5, 1985)
21 CFR 1307.12 Manufacture and distribution of narcotic solutions and
compounds by a pharmacist.
As an incident to a distribution under 1307.11, a pharmacist may
manufacture (without being registered to manufacture) an aqueous or
oleaginous solution or solid dosage form containing a narcotic
controlled substance in a proportion not exceeding 20 percent of the
complete solution, compound, or mixture.
(36 FR 18733, Sept. 21, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973)
21 CFR 1307.13 Distribution to supplier.
Any person lawfully in possession of a controlled substance listed in
any schedule may distribute (without being registered to distribute)
that substance to the person from whom he obtained it or to the
manufacturer of the substance, provided that a written record is
maintained which indicates the date of the transaction, the name, form
and quantity of the substance, the name, address, and registration
number, if any, of the person making the distribution, and the name,
address, and registration number, if known, of the supplier or
manufacturer. In the case of returning a controlled substance listed in
Schedule I or II, an order form shall be used in the manner prescribed
in part 1305 of this chapter and be maintained as the written record of
the transaction. Any person not required to register pursuant to
sections 302(c) or 1007(b)(1) of the Act (21 U.S.C. 823(c) or 957(b)(1))
shall be exempt from maintaining the records required by this section.
(36 FR 7801, Apr. 24, 1971, as amended at 36 FR 18733, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1307.14 Distribution upon discontinuance or transfer of
business.
(a) Any registrant desiring to discontinue business activities
altogether or with respect to controlled substances (without
transferring such business activities to another person) shall return
for cancellation his certificate of registration, and any unexecuted
order forms in his possession, to the Registration Unit, Drug
Enforcement Administration, Department of Justice, Post Office Box
28083, Central Station, Washington, DC 20005. Any controlled substances
in his possession may be disposed of in accordance with 1307.21.
(b) Any registrant desiring to discontinue business activities
altogether or with respect to controlled substance (by transferring such
business activities to another person) shall submit in person or by
registered or certified mail, return receipt requested, to the Special
Agent in Charge in his area, at least 14 days in advance of the date of
the proposed transfer (unless the Special Agent in Charge waives this
time limitation in individual instances), the following information:
(1) The name, address, registration number, and authorized business
activity of the registrant discontinuing the business
(registrant-transferor);
(2) The name, address, registration number, and authorized business
activity of the person acquiring the business (registrant-transferee);
(3) Whether the business activities will be continued at the location
registered by the person discontinuing business, or moved to another
location (if the latter, the address of the new location should be
listed);
(4) Whether the registrant-transferor has a quota to manufacture or
procure any controlled substance listed in Schedule I or II (if so, the
basic class or class of the substance should be indicated); and
(5) The date on which the transfer of controlled substances will
occur.
(c) Unless the registrant-transferor is informed by the Regional
Administrator, before the date on which the transfer was stated to
occur, that the transfer may not occur, the registrant-transferor may
distribute (without being registered to distribute) controlled
substances in his possession to the registrant-transferee in accordance
with the following:
(1) On the date of transfer of the controlled substances, a complete
inventory of all controlled substances being transferred shall be taken
in accordance with 1304.11-1304.19 of this chapter. This inventory
shall serve as the final inventory of the registrant-transferor and the
initial inventory of the registrant-transferee, and a copy of the
inventory shall be included in the records of each person. It shall not
be necessary to file a copy of the inventory with the Administration
unless requested by the Regional Administrator. Transfers of any
substances listed in Schedule I or II shall require the use of order
forms in accordance with part 1305 of this chapter.
(2) On the date of transfer of the controlled substances, all records
required to be kept by the registrant-transferor with reference to the
controlled substances being transferred, under part 1304 of this
chapter, shall be transferred to the registrant-transferee.
Responsibility for the accuracy of records prior to the date of transfer
remains with the transferor, but responsibility for custody and
maintenance shall be upon the transferee.
(3) In the case of registrants required to make reports pursuant to
part 1304 of this chapter, a report marked ''Final'' will be prepared
and submitted by the registrant-transferor showing the disposition of
all the controlled substances for which a report is required; no
additional report will be required from him, if no further transactions
involving controlled substances are consummated by him. The initial
report of the registrant-transferee shall account for transactions
beginning with the day next succeeding the date of discontinuance or
transfer of business by the transferor-registrant and the substances
transferred to him shall be reported as receipts in his initial report.
(37 FR 15921, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 47 FR 41735, Sept. 22, 1982; 51 FR 5319, Feb. 13,
1986)
21 CFR 1307.15 Incidental manufacture of controlled substances.
Any registered manufacturer who, incidentally but necessarily,
manufactures a controlled substance as a result of the manufacture of a
controlled substance or basic class of controlled substance for which he
is registered and has been issued an individual manufacturing quota
pursuant to part 1303 of this chapter (if such substance or class is
listed in Schedule I or II) shall be exempt from the requirement of
registration pursuant to part 1301 of this chapter and, if such
incidentally manufactured substance is listed in Schedule I or II, shall
be exempt from the requirement of an individual manufacturing quota
pursuant to part 1303 of this chapter, if such substances are disposed
of in accordance with 1307.21.
21 CFR 1307.15 Disposal of Controlled Substances
21 CFR 1307.21 Procedure for disposing of controlled substances.
(a) Any person in possession of any controlled substance and desiring
or required to dispose of such substance may request the Special Agent
in Charge of the Administration in the area in which the person is
located for authority and instructions to dispose of such substance.
The request should be made as follows:
(1) If the person is a registrant required to make reports pursuant
to part 1304 of this chapter, he shall list the controlled substance or
substances which he desires to dispose of on the ''b'' subpart of the
report normally filed by him, and submit three copies of that subpart to
the Special Agent in Charge of the Administration in his area.
(2) If the person is a registrant not required to make reports
pursuant to part 1304 of this chapter, he shall list the controlled
substance or substances which he desires to dispose of on DEA Form 41,
and submit three copies of that form to the Special Agent in Charge in
his area; and
(3) If the person is not a registrant, he shall submit to the Special
Agent in Charge a letter stating:
(i) The name and address of the person;
(ii) The name and quantity of each controlled substance to be
disposed of;
(iii) How the applicant obtained the substance, if known; and
(iv) The name, address, and registration number, if known, of the
person who possessed the controlled substances prior to the applicant,
if known.
(b) The Special Agent in Charge shall authorize and instruct the
applicant to dispose of the controlled substance in one of the following
manners:
(1) By transfer to person registered under the Act and authorized to
possess the substance;
(2) By delivery to an agent of the Administration or to the nearest
office of the Administration;
(3) By destruction in the presence of an agent of the Administration
or other authorized person; or
(4) By such other means as the Special Agent in Charge may determine
to assure that the substance does not become available to unauthorized
persons.
(c) In the event that a registrant is required regularly to dispose
of controlled substances, the Special Agent in Charge may authorize the
registrant to dispose of such substances, in accordance with paragraph
(b) of this section, without prior approval of the Administration in
each instance, on the condition that the registrant keep records of such
disposals and file periodic reports with the Special Agent in Charge
summarizing the disposals made by the registrant. In granting such
authority, the Special Agent in Charge may place such conditions as he
deems proper on the disposal of controlled substances, including the
method of disposal and the frequency and detail of reports.
(d) This section shall not be construed as affecting or altering in
any way the disposal of controlled substances through procedures
provided in laws and regulations adopted by any State.
(36 FR 7801, Apr. 24, 1971, as amended at 37 FR 15922, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 47 FR 41735,
Sept. 22, 1982)
21 CFR 1307.22 Disposal of controlled substances by the Administration.
Any controlled substance delivered to the Administration under
1307.21 or forfeited pursuant to section 511 of the Act (21 U.S.C. 881)
may be delivered to any department, bureau, or other agency of the
United States or of any State upon proper application addressed to the
Administrator, Drug Enforcement Administration, Department of Justice,
Washington, DC 28083. The application shall show the name, address, and
official title of the person or agency to whom the controlled drugs are
to be delivered, including the name and quantity of the substances
desired and the purpose for which intended. The delivery of such
controlled drugs shall be ordered by the Administrator, if, in his
opinion, there exists a medical or scientific need therefor.
21 CFR 1307.22 Special Exempt Persons
21 CFR 1307.31 Native American Church.
The listing of peyote as a controlled substance in Schedule I does
not apply to the nondrug use of peyote in bona fide religious ceremonies
of the Native American Church, and members of the Native American Church
so using peyote are exempt from registration. Any person who
manufactures peyote for or distributes peyote to the Native American
Church, however, is required to obtain registration annually and to
comply with all other requirements of law.
21 CFR 1307.31 PART 1308 -- SCHEDULES OF CONTROLLED SUBSTANCES
Sec.
1308.01 Scope of Part 1308.
1308.02 Definitions.
1308.03 Administration Controlled Substances Code Number.
1308.04 Submission of information by manufacturers.
1308.11 Schedule I.
1308.12 Schedule II.
1308.13 Schedule III.
1308.14 Schedule IV.
1308.15 Schedule V.
1308.21 Application for exclusion of a nonnarcotic substance.
1308.22 Excluded substances.
1308.23 Exemption of certain chemical preparations; application.
1308.24 Exemption chemical preparations.
1308.25 Exclusion of a veterinary anabolic steroid implant product;
application.
1308.26 Excluded veterinary anabolic steroid implant products.
1308.31 Application for exemption of a nonnarcotic prescription
product.
1308.32 Exempted prescription products.
1308.33 Exemption of certain anabolic steroid products; application.
1308.34 Exempt anabolic steroid products.
1308.41 Hearings generally.
1308.42 Purpose of hearing.
1308.43 Waiver or modification of Rules.
1308.44 Initiation of proceedings for rule-making.
1308.45 Request for hearing or appearance; waiver.
1308.46 Burden of proof.
1308.47 Time and place of hearing.
1308.48 Final order.
1308.49 Control required under international treaty.
1308.50 Control of immediate precursors.
1308.51 Pending proceedings.
1308.52 Emergency sheduling.
Authority: 21 U.S.C. 811, 812, 871(b), unless otherwise noted.
Source: 38 FR 8254, Mar. 30, 1973, unless otherwise noted.
Redesignated at 38 FR 26609, Sept. 24, 1973.
21 CFR 1307.31 General Information
21 CFR 1308.01 Scope of Part 1308.
Schedules of controlled substances established by section 202 of the
Act (21 U.S.C. 812), as they are changed, updated, and republished from
time to time, are set forth in this part.
21 CFR 1308.02 Definitions.
As used in this part, the following terms shall have the meanings
specified:
(a) The term Act means the Controlled Substance Act (84 Stat. 1242;
21 U.S.C. 801) and/or the Controlled Substances Import and Export Act
(84 Stat. 1285; 21 U.S.C. 951).
(b) The term anabolic steroid means any drug or hormonal substance,
chemically and pharmacologically related to testosterone (other than
estrogens, progestins, and corticosteroids) that promotes muscle growth,
and includes:
(1) Boldenone;
(2) Chlorotestosterone (4-chlortestosterone);
(3) Clostebol;
(4) Dehydrochlormethyltestosterone;
(5) Dihydrotestosterone (4-dihydrotestosterone);
(6) Drostanolone;
(7) Ethylestrenol;
(8) Fluoxymesterone;
(9) Formebulone (formebolone);
(10) Mesterolone;
(11) Methandienone;
(12) Methandranone;
(13) Methandriol;
(14) Methandrostenolone;
(15) Methenolone;
(16) Methyltestosterone;
(17) Mibolerone;
(18) Nandrolone;
(19) Norethandrolone;
(20) Oxandrolone;
(21) Oxymesterone;
(22) Oxymetholone;
(23) Stanolone;
(24) Stanozolol;
(25) Testolactone;
(26) Testosterone;
(27) Trenbolone; and
(28) Any salt, ester, or isomer of a drug or substance described or
listed in this paragraph, if that salt, ester, or isomer promotes muscle
growth. Except such term does not include an anabolic steroid which is
expressly intended for administration through implants to cattle or
other nonhuman species and which has been approved by the Secretary of
Health and Human Services for such administration. If any person
prescribes, dispenses, or distributes such steroid for human use, such
person shall be considered to have prescribed, dispensed, or distributed
an anabolic steroid within the meaning of this paragraph.
(c) The term hearing means any hearing held pursuant to this part for
the issuance, amendment, or repeal of any rule issuable pursuant to
section 201 of the Act.
(d) The term isomer means the optical isomer, except as used in
1308.11(d) and 1308.12(b)(4). As used in 1308.11(d), the term isomer
means the optical, positional, or geometric isomer. As used in
1308.12(b)(4), the term isomer means the optical or geometric isomer.
(e) The term interested person means any person adversely affected or
aggrieved by any rule or proposed rule issuable pursuant to section 201
of the Act.
(f) The term narcotic drug means any of the following whether
produced directly or indirectly by extraction from substances of
vegetable origin or independently by means of chemical synthesis or by a
combination of extraction and chemical synthesis:
(1) Opium, opiates, derivatives of opium and opiates, including their
isomers, esters, ethers, salts, and salts of isomers, esters, and ethers
whenever the existence of such isomers, esters, ethers and salts is
possible within the specific chemical designation. Such term does not
include the isoquinoline alkaloids of opium.
(2) Poppy straw and concentrate of poppy straw.
(3) Coca leaves, except coco leaves and extracts of coca leaves from
which cocaine, ecgonine and derivatives of ecgonine or their salts have
been removed.
(4) Cocaine, its salts, optical and geometric isomers, and salts of
isomers.
(5) Ecgonine, its derivatives, their salts, isomers and salts of
isomers.
(6) Any compound, mixture, or preparation which contains any quantity
of any of the substances referred to in subparagraphs (1) through (5).
(g) The term proceeding means all actions taken for the issuance,
amendment, or repeal of any rule issued pursuant to section 201 of the
Act, commencing with the publication by the Administrator of the
proposed rule, amended rule, or repeal in the Federal Register.
(h) Any term not defined in this section shall have the definition
set forth in section 102 and 1001 of the Act (21 U.S.C. 802 and 951) and
1301.02 of this chapter.
(38 FR 8254, Mar. 30, 1973. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 51 FR 15317, Apr. 23, 1986; 56 FR 5754, Feb. 13,
1991)
21 CFR 1308.03 Administration Controlled Substances Code Number.
(a) Each controlled substance, or basic class thereof, has been
assigned an ''Administration Controlled Substances Code Number'' for
purposes of identification of the substances or class on certain
Certificates of Registration issued by the Administration pursuant to
1301.44 and 1311.43 of this chapter and on certain order forms issued by
the Administration pursuant to 1305.05(d) of this chapter. Applicants
for procurement and/or individual manufacturing quotas must include the
appropriate code number on the application as required in 1303.12(b)
and 1303.22(a) of this chapter. Applicants for import and export
permits must include the appropriate code number on the application as
required in 1312.12(a) and 1312.22(a) of this chapter. Authorized
registrants who desire to import or export a controlled substance for
which an import or export permit is not required must include the
appropriate Administration Controlled Substances Code Number beneath or
beside the name of each controlled substance listed on the DEA Form 236
(Controlled Substance Import/Export Declaration) which is executed for
such importation or exportation as required in 1312.18(c) and
1312.27(b) of this chapter.
(b) Except as stated in paragraph (a) of this section, no applicant
or registrant is required to use the Administration Controlled
Substances Code Number for any purpose.
(38 FR 8254, Mar. 30, 1973. Redesignated at 38 FR 26609, Sept. 24,
1973 and amended at 51 FR 15318, Apr. 23, 1986)
21 CFR 1308.04 Submission of information by manufacturers.
(a) Each person who manufactures, packages, repackages, labels,
relabels, or distributes under his own label any product (including any
compound, mixture, or preparation, diagnostic, reagent, buffer, or
biological) containing any quantity of any controlled substance (whether
such product is itself controlled or is excepted, exempted, or excluded
from some or all controls pursuant to 1308.21-24 or 1308.31-32) shall
submit information required in paragraph (b) of this section for each
such product being manufactured or sold on July 1, 1972. The
information should be submitted by registered mail, return receipt
requested, to the Regulatory Support Section, Attention: Project Label,
Drug Enforcement Administration, Department of Justice, Washington, DC
20537, by August 31, 1972. In the case of new products manufactured
after July 1, 1972, or new dosage forms or other unit forms manufactured
after July 1, 1972, or changes in information submitted by August 31,
1972, the registrant shall submit the information regarding such item
within 30 days after the date on which the manufacture commences or
information change occurs. In the case of products, the manufacture of
which is discontinued after July 1, 1972, the registrant shall submit
notice of such discontinuance within 30 days after the date on which
manufacture ceases. In the case of products the manufacture of which
was discontinued before July 1, 1972, which are still being sold, the
registrant shall submit a notice of such discontinuance with his initial
submission.
(b) Two labels or other documents reflecting the following
information shall be submitted with reference to each dosage form or
other unit form of each item containing any quantity of any controlled
substance:
(1) The trade name, brand name, or other commercial name of the
product;
(2) The generic or chemical name and quantity of each active
ingredient, including both controlled and noncontrolled substances (if
any of this information is a proprietary trade secret, please indicate
those portions);
(3) The National Drug Code Number assigned to the product, if any;
and
(4) The weight (in metric measure) of each dosage unit or the weight
(in metric measure) of the controlled substance per 100 grams of
finished product for all items containing any quantity of any narcotic
controlled substance in solid dosage forms.
(21 U.S.C. 821 and 871(b))
(38 FR 8254, Mar. 30, 1973. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 46 FR 28841, May 29, 1981)
21 CFR 1308.04 Schedules
21 CFR 1308.11 Schedule I.
(a) Schedule I shall consist of the drugs and other substances, by
whatever official name, common or usual name, chemical name, or brand
name designated, listed in this section. Each drug or substance has
been assigned the DEA Controlled Substances Code Number set forth
opposite it.
(b) Opiates. Unless specifically excepted or unless listed in
another schedule, any of the following opiates, including their isomers,
esters, ethers, salts, and salts of isomers, esters and ethers, whenever
the existence of such isomers, esters, ethers and salts is possible
within the specific chemical designation (for purposes of paragraph
(b)(34) only, the term isomer includes the optical and geometric
isomers):
(c) Opium derivatives. Unless specifically excepted or unless listed
in another schedule, any of the following opium derivatives, its salts,
isomers, and salts of isomers whenever the existence of such salts,
isomers, and salts of isomers is possible within the specific chemical
designation:
(d) Hallucinogenic substances. Unless specifically excepted or
unless listed in another schedule, any material, compound, mixture, or
preparation, which contains any quantity of the following hallucinogenic
substances, or which contains any of its salts, isomers, and salts of
isomers whenever the existence of such salts, isomers, and salts of
isomers is possible within the specific chemical designation (for
purposes of this paragraph only, the term ''isomer'' includes the
optical, position and geometric isomers):
(e) Depressants. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances having a depressant
effect on the central nervous system, including its salts, isomers, and
salts of isomers whenever the existence of such salts, isomers, and
salts of isomers is possible within the specific chemical designation:
(f) Stimulants. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances having a stimulant
effect on the central nervous system, including its salts, isomers, and
salts of isomers:
(g) Temporary listing of substances subject to emergency scheduling.
Any material, compound, mixture or preparation which contains any
quantity of the following substances:
(39 FR 22141, June 20, 1974)
Editorial Note: For Federal Register citations affecting 1308.11,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
21 CFR 1308.12 Schedule II.
(a) Schedule II shall consist of the drugs and other substances, by
whatever official name, common or usual name, chemical name, or brand
name designated, listed in this section. Each drug or substance has
been assigned the Controlled Substances Code Number set forth opposite
it.
(b) Substances, vegetable origin or chemical synthesis. Unless
specifically excepted or unless listed in another schedule, any of the
following substances whether produced directly or indirectly by
extraction from substances of vegetable origin, or independently by
means of chemical synthesis, or by a combination of extraction and
chemical synthesis:
(1) Opium and opiate, and any salt, compound, derivative, or
preparation of opium or opiate excluding apomorphine, dextrorphan,
nalbuphine, nalmefene, naloxone, and naltrexone, and their respective
salts, but including the following:
(2) Any salt, compound, derivative, or preparation thereof which is
chemically equivalent or identical with any of the substances referred
to in paragraph (b) (1) of this section, except that these substances
shall not include the isoquinoline alkaloids of opium.
(3) Opium poppy and poppy straw.
(4) Coca leaves (9040) and any salt, compound, derivative or
preparation of coca leaves (including cocaine (9041) and ecgonine (9180)
and their salts, isomers, derivatives and salts of isomers and
derivatives), and any salt, compound, derivative, or preparation thereof
which is chemically equivalent or identical with any of these
substances, except that the substances shall not include decocainized
coca leaves or extraction of coca leaves, which extractions do not
contain cocaine or ecgonine.
(5) Concentrate of poppy straw (the crude extract of poppy straw in
either liquid, solid or powder form which contains the phenanthrene
alkaloids of the opium poppy), 9670.
(c) Opiates. Unless specifically excepted or unless in another
schedule any of the following opiates, including its isomers, esters,
ethers, salts and salts of isomers, esters and ethers whenever the
existence of such isomers, esters, ethers, and salts is possible within
the specific chemical designation, dextrorphan and levopropoxyphene
excepted:
(d) Stimulants. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances having a stimulant
effect on the central nervous system:
(e) Depressants. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances having a depressant
effect on the central nervous system, including its salts, isomers, and
salts of isomers whenever the existence of such salts, isomers, and
salts of isomers is possible within the specific chemical designation:
(f) Hallucinogenic substances.
(g) Immediate precursors. Unless specifically excepted or unless
listed in another schedule, any material, compound, mixture, or
preparation which contains any quantity of the following substances:
(1) Immediate precursor to amphetamine and methamphetamine:
(2) Immediate precursors to phencyclidine (PCP):
(39 FR 22142, June 20, 1974)
Editorial Note: For Federal Register citations affecting 1308.12,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
21 CFR 1308.13 Schedule III.
(a) Schedule III shall consist of the drugs and other substances, by
whatever official name, common or usual name, chemical name, or brand
name designated, listed in this section. Each drug or substance has
been assigned the DEA Controlled Substances Code Number set forth
opposite it.
(b) Stimulants. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances having a stimulant
effect on the central nervous system, including its salts, isomers
(whether optical, position, or geometric), and salts of such isomers
whenever the existence of such salts, isomers, and salts of isomers is
possible within the specific chemical designation:
(c) Depressants. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances having a depressant
effect on the central nervous system:
(d) Nalorphine 9400.
(e) Narcotic Drugs. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation
containing any of the following narcotic drugs, or their salts
calculated as the free anhydrous base or alkaloid, in limited quantities
as set forth below:
(f) Anabolic steroids. Unless specifically excepted or unless listed
in another schedule, any material, compound, mixture, or preparation
containing any quantity of the following substances, including its
salts, isomers, and salts of isomers whenever the existence of such
salts of isomers is possible within the specific chemical designation:
(1) Anabolic Steroids 4000
(39 FR 22142, June 20, 1974, as amended at 41 FR 43401, Oct. 1, 1976;
43 FR 3359, Jan. 25, 1978; 44 FR 40888, July 13, l979; 46 FR 52334,
Oct. 27, 1981; 51 FR 5320, Feb. 13, 1986; 52 FR 2222, Jan. 21, 1987;
52 FR 5952, Feb. 27, 1987; 56 FR 5754, Feb. 13, 1991; 56 FR 11932,
Mar. 21, 1991)
21 CFR 1308.14 Schedule IV.
(a) Schedule IV shall consist of the drugs and other substances, by
whatever official name, common or usual name, chemical name, or brand
name designated, listed in this section. Each drug or substance has
been assigned the DEA Controlled Substances Code Number set forth
opposite it.
(b) Narcotic drugs. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation
containing any of the following narcotic drugs, or their salts
calculated as the free anhydrous base or alkaloid, in limited quantities
as set forth below:
(c) Depressants. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances, including its salts,
isomers, and salts of isomers whenever the existence of such salts,
isomers, and salts of isomers is possible within the specific chemical
designation:
(d) Fenfluramine. Any material, compound, mixture, or preparation
which contains any quantity of the following substances, including its
salts, isomers (whether optical, position, or geometric), and salts of
such isomers, whenever the existence of such salts, isomers, and salts
of isomers is possible:
(e) Stimulants. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances having a stimulant
effect on the central nervous system, including its salts, isomers and
salts of isomers:
(f) Other substances. Unless specifically excepted or unless listed
in another schedule, any material, compound, mixture or preparation
which contains any quantity of the following substances, including its
salts:
(39 FR 22143, June 20, 1974)
Editorial Note: For Federal Register citations affecting 1308.14,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
21 CFR 1308.15 Schedule V.
(a) Schedule V shall consist of the drugs and other substances, by
whatever official name, common or usual name, chemical name, or brand
name designated, listed in this section.
(b) Narcotic drugs. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation
containing any of the following narcotic drugs and their salts, as set
forth below:
(c) Narcotic drugs containing non-narcotic active medicinal
ingredients. Any compound, mixture, or preparation containing any of
the following narcotic drugs, or their salts calculated as the free
anhydrous base or alkaloid, in limited quantities as set forth below,
which shall include one or more non-narcotic active medicinal
ingredients in sufficient proportion to confer upon the compound,
mixture, or preparation valuable medicinal qualities other than those
possessed by narcotic drugs alone:
(1) Not more than 200 milligrams of codeine per 100 milliliters or
per 100 grams.
(2) Not more than 100 milligrams of dihydrocodeine per 100
milliliters or per 100 grams.
(3) Not more than 100 milligrams of ethylmorphine per 100 milliliters
or per 100 grams.
(4) Not more than 2.5 milligrams of diphenoxylate and not less than
25 micrograms of atropine sulfate per dosage unit.
(5) Not more than 100 milligrams of opium per 100 milliliters or per
100 grams.
(6) Not more than 0.5 milligram of difenoxin and not less than 25
micrograms of atropine sulfate per dosage unit.
(d) Stimulants. Unless specifically exempted or excluded or unless
listed in another schedule, any material, compound, mixture, or
preparation which contains any quantity of the following substances
having a stimulant effect on the central nervous system, including its
salts, isomers and salts of isomers:
(1) Pyrovalerone 1485.
(Reserved)
(39 FR 22143, June 20, 1974, as amended at 43 FR 38383, Aug. 28,
1978; 44 FR 40888, July 13, 1979; 47 FR 49841, Nov. 3, 1982; 50 FR
8108, Feb. 28, 1985; 52 FR 5952, Feb. 27, 1987; 53 FR 10870, Apr. 4,
1988; 56 FR 61372, Dec. 3, 1991)
21 CFR 1308.15 Excluded Nonnarcotic Substances
21 CFR 1308.21 Application for exclusion of a nonnarcotic substance.
(a) Any person seeking to have any nonnarcotic substance which may,
under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301), be
lawfully sold over the counter without a prescription, excluded from any
schedule, pursuant to section 201(g) (1) of the Act (21 U.S.C. 811 (g)
(1)), may apply to the Administrator, Drug Enforcement Administration,
Department of Justice, Washington, DC 20537.
(b) An application for an exclusion under this section shall contain
the following information:
(1) The name and address of the applicant;
(2) The name of the substance for which exclusion is sought; and
(3) The complete quantitative composition of the substance.
(c) Within a reasonable period of time after the receipt of an
application for an exclusion under this section, the Administrator shall
notify the applicant of his acceptance or nonacceptance of his
application, and if not accepted, the reason therefore. The
Administrator need not accept an application for filing if any of the
requirements prescribed in paragraph (b) of this section is lacking or
is not set forth as to be readily understood. If the applicant desires,
he may amend the application to meet the requirements of paragraph (b)
of this section. If the application is accepted for filing, the
Administrator shall issue and publish in the Federal Register his order
on the application, which shall include a reference to the legal
authority under which the order is issued and the findings of fact and
conclusions of law upon which the order is based. This order shall
specify the date on which it shall take effect. The Administrator shall
permit any interested person to file written comments on or objections
to the order within 60 days of the date of publication of his order in
the Federal Register. If any such comments or objections raise
significant issues regarding any finding of fact or conclusion of law
upon which the order is based, the Administrator shall immediately
suspend the effectiveness of the order until he may reconsider the
application in light of the comments and objections filed. Thereafter,
the Administrator shall reinstate, revoke, or amend his original order
as he determines appropriate.
(d) The Administrator may at any time revoke any exclusion granted
pursuant to section 201(g) of the Act (21 U.S.C. 811(g)) by following
the procedures set forth in paragraph (c) of this section for handling
an application for an exclusion which has been accepted for filing.
21 CFR 1308.22 Excluded substances.
The following nonnarcotic substances which may, under the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 301), be lawfully sold over the
counter without a prescription, are excluded from all schedules pursuant
to section 201(g) (1) of the Act (21 U.S.C. 811(g) (1)):
(38 FR 8255, Mar. 30, 1973. Redesignated at 38 FR 26609, Sept. 24,
l973, and amended at 41 FR 16553, Apr. 20, 1976; 41 FR 53477, Dec. 7,
1976; 46 FR 51603, Oct. 21, 1981; 47 FR 45867, Oct. 14, 1982; 54 FR
2100, Jan. 19, 1989; 55 FR 12162, Mar. 30, 1990)
21 CFR 1308.22 Exempt Chemical Preparations
21 CFR 1308.23 Exemption of certain chemical preparations;
application.
(a) The Administrator may, by regulation, exempt from the application
of all or any part of the Act any chemical preparation or mixture
containing one or more controlled substances listed in any schedule,
which preparation or mixture is intended for laboratory, industrial,
educational, or special research purposes and not for general
administration to a human being or other animal, if the preparation or
mixture either:
(1) Contains no narcotic controlled substance and is packaged in such
a form or concentration that the packaged quantity does not present any
significant potential for abuse (the type of packaging and the history
of abuse of the same or similar preparations may be considered in
determining the potential for abuse of the preparation or mixture); or
(2) Contains either a narcotic or nonnarcotic controlled substance
and one or more adulterating or denaturing agents in such a manner,
combination, quantity, proportion, or concentration, that the
preparation or mixture does not present any potential for abuse. If the
preparation or mixture contains a narcotic controlled substance, the
preparation or mixture must be formulated in such a manner that it
incorporates methods of denaturing or other means so that the
preparation or mixture is not liable to be abused or have ill effects,
if abused, and so that the narcotic substance cannot in practice be
removed.
(b) Any person seeking to have any preparation or mixture containing
a controlled substance and one or more noncontrolled substances exempted
from the application of all or any part of the Act, pursuant to
paragraph (a) of this section, may apply to the Administrator, Drug
Enforcement Administration, Department of Justice, Washington, DC 20537.
(c) An application for an exemption under this section shall contain
the following information:
(1) The name, address, and registration number, if any, of the
applicant;
(2) The name, address, and registration number, if any, of the
manufacturer or importer of the preparation or mixture, if not the
applicant;
(3) The exact trade name or other designation of the preparation or
mixture;
(4) The complete qualitative and quantitative composition of the
preparation or mixture (including all active and inactive ingredients
and all controlled and noncontrolled substances);
(5) The form of the immediate container in which the preparation or
mixture will be distributed with sufficient descriptive detail to
identify the preparation or mixture (e.g., bottle, packet, vial, soft
plastic pillow, agar gel plate, etc.);
(6) The dimensions or capacity of the immediate container of the
preparation or mixture;
(7) The label and labeling, as defined in 1302.01 of this chapter,
of the immediate container and the commercial containers, if any, of the
preparation or mixture;
(8) A brief statement of the facts which the applicant believes
justify the granting of an exemption under this paragraph, including
information on the use to which the preparation or mixture will be put;
(9) The date of the application; and
(10) Which of the information submitted on the application, if any,
is deemed by the applicant to be a trade secret or otherwise
confidential and entitled to protection under subsection 402(a)(8) of
the Act (21 U.S.C. 842(a) (8)) or any other law restricting public
disclosure of information.
(d) The Administrator may require the applicant to submit such
documents or written statements of fact relevant to the application as
he deems necessary to determine whether the application should be
granted.
(e) Within a reasonable period of time after the receipt of an
application for an exemption under this section, the Administrator shall
notify the applicant of his acceptance or nonacceptance of his
application, and if not accepted, the reason therefor. The
Administrator need not accept an application for filing if any of the
requirements prescribed in paragraph (c) or requested pursuant to
paragraph (d) is lacking or is not set forth as to be readily
understood. If the applicant desires, he may amend the application to
meet the requirements of paragraphs (c) and (d) of this section. If the
application is accepted for filing, the Administrator shall issue and
publish in the Federal Register his order on the application, which
shall include a reference to the legal authority under which the order
is based. This order shall specify the date on which it shall take
effect. The Administrator shall permit any interested person to file
written comments on or objections to the order within 60 days of the
date of publication of his order in the Federal Register. If any such
comments or objections raise significant issues regarding any finding of
fact or conclusion of law upon which the order is based, the
Administrator shall immediately suspend the effectiveness of the order
until he may reconsider the application in light of the comments and
objections filed. Thereafter, the Administrator shall reinstate,
revoke, or amend his original order as he determines appropriate.
(f) The Administrator may at any time revoke or modify any exemption
granted pursuant to this section by following the procedures set forth
in paragraph (e) of this section for handling an application for an
exemption which has been accepted for filing. The Administrator may
also modify or revoke the criteria by which exemptions are granted (and
thereby modify or revoke all preparations and mixtures granted under the
old criteria) and modify the scope of exemptions at any time.
(38 FR 8254, Mar. 30, 1973. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 46 FR 28841, May 29, 1981)
21 CFR 1308.24 Exempt chemical preparations.
(a) The chemical preparations and mixtures set forth in paragraph (i)
of this section have been exempted by the Administrator from application
of sections 302, 303, 305, 306, 307, 308, 309, 1002, 1003 and 1004 of
the Act (21 U.S.C. 822-3, 825-9, 952-4) and 1301.74 of this chapter, to
the extent described in paragraphs (b) to (h) of this section.
Substances set forth in paragraph (j) shall be exempt from the
application of sections 305, 306, 307, 308, 309, 1002, 1003 and 1004 of
the Act (21 U.S.C. 825-9, 952-4) and 1301.71-1301.73 and 1301.74(a),
(b), (d), (e) and (f) of this chapter to the extent as hereinafter may
be provided.
(b) Registration and security: Any person who manufactures an exempt
chemical preparation or mixture must be registered under the Act and
comply with all relevant security requirements regarding controlled
substances being used in the manufacturing process until the preparation
or mixture is in the form described in paragraph (i) of this section.
Any other person who handles an exempt chemical preparation after it is
in the form described in paragraph (i) of this section is not required
to be registered under the Act to handle that preparation, and the
preparation is not required to be stored in accordance with security
requirements regarding controlled substances.
(c) Labeling: In lieu of the requirements set forth in part 1302 of
this chapter, the label and the labeling of an exempt chemical
preparation must be prominently marked with its full trade name or other
description and the name of the manufacturer or supplier as set forth in
paragraph (i) of this section, in such a way that the product can be
readily identified as an exempt chemical preparation. The label and
labeling must also include in a prominent manner the statement ''For
industrial use only'' or ''For chemical use only'' or ''For in vitro use
only -- not for human or animal use'' or ''Diagnostic reagent -- for
professional use only'' or a comparable statement warning the person
reading it that human or animal use is not intended. The symbol
designating the schedule of the controlled substance is not required on
either the label or the labeling of the exempt chemical preparation, nor
is it necessary to list all ingredients of the preparation.
(d) Records and reports: Any person who manufactures an exempt
chemical preparation or mixture must keep complete and accurate records
and file all reports required under part 1304 of this chapter regarding
all controlled substances being used in the manufacturing process until
the preparation or mixture is in the form described in paragraph (i) of
this section. In lieu of records and reports required under part 1304
of this chapter regarding exempt chemical preparations, the manufacturer
need only record the name, address, and registration number, if any, of
each person to whom the manufacturer distributes any exempt chemical
preparation. Each importer or exporter of an exempt narcotic chemical
preparation must submit a semiannual report of the total quantity of
each substance imported or exported in each calendar half-year within 30
days of the close of the period to the Drug Control Section, Drug
Enforcement Administration, Department of Justice, Washington, DC 20537.
Any other person who handles an exempt chemical preparation after it is
in the form described in paragraph (i) of this section is not required
to maintain records or file reports.
(e) Quotas, order forms, prescriptions, import, export, and
transshipment requirements: Once an exempt chemical preparation is in
the form described in paragraph (i) of this section, the requirements
regarding quotas, order forms, prescriptions, import permits and
declarations, export permit and declarations, and transshipment and
intransit permits and declarations do not apply. These requirements do
apply, however, to any controlled substances used in manufacturing the
exempt chemical preparation before it is in the form described in
paragraph (i) of this section.
(f) Criminal penalties: No exemption granted pursuant to 1308.23
affects the criminal liability for illegal manufacture, distribution, or
possession of controlled substances contained in the exempt chemical
preparation. Distribution, possession, and use of an exempt chemical
preparation are lawful for registrants and nonregistrants only as long
as such distribution, possession, or use is intended for laboratory,
industrial, or educational purposes and not for immediate or subsequent
administration to a human being or other animal.
(g) Bulk materials: For materials exempted in bulk quantities, the
Administrator may prescribe requirements other than those set forth in
paragraphs (b) through (e) of this section on a case-by-case basis.
(h) Changes in chemical preparations: Any change in the quantitative
or qualitative composition of the preparation or mixture after the date
of application, or change in the trade name or other designation of the
preparation or mixture, set forth in paragraph (i)( of this section,
requires a new application for exemption.
(i) The following preparations and mixtures, in the form and quantity
listed in the application submitted (indicated as the ''date of
application'') are designated as exempt chemical preparations for the
purposes set forth in this section:
(j) The following substances are designated as exempt chemical
preparations for the purposes set forth in this section.
(1) Chloral. When packaged in a sealed, oxygen-free environment,
under nitrogen pressure, safeguarded against exposure to the air.(2)
EmitR Phenobarbital Enzyme Reagent B. In one liter quantities each with
a 5 ml. retention sample for repackaging as an exempt chemical
preparation only.
(38 FR 8255, Mar. 30, 1973)
Editorial Note: For Federal Register citations affecting 1308.24,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
21 CFR Excluded Veterinary Anabolic Steroid Implant Products
21 CFR 1308.25 Exclusion of a veterinary anabolic steroid implant
product; application.
(a) Any person seeking to have any anabolic steroid product, which is
expressly intended for administration through implants to cattle or
other nonhuman species and which has been approved by the Secretary of
Health and Human Services for such administration, identified as being
excluded from any schedule, pursuant to section 102(41)(B)(i) of the Act
(21 U.S.C. 802(41)(B)(i)), may apply to the Administrator, Drug
Enforcement Administration, Department of Justice, Washington, DC 20537.
(b) An application for any exclusion under this section shall be
submitted in triplicate and contain the following information:
(1) The name and address of the applicant;
(2) The name of the product;
(3) The chemical structural formula or description for any anabolic
steroid contained in the product;
(4) A complete description of dosage and quantitative composition of
the dosage form;.
(5) The conditions of use including whether or not Federal law
restricts this product to use by or on the order of a licensed
veterinarian;
(6) A description of the delivery system in which the dosage form
will be distributed with sufficient detail to identify the product (e.g.
20 cartridge brown plastic belt);
(7) The label and labeling of the immediate container and the
commercial containers, if any, of the product;.
(8) The name and address of the manufacturer of the dosage form if
different from that of the applicant; and
(9) Evidence that the product has been approved by the Secretary of
Health and Human Services for administration through implant to cattle
or other nonhuman species.
(c) Within a reasonable period of time after the receipt of an
application for an exclusion under this section, the Administrator shall
notify the applicant of his acceptance or nonacceptance of the
application, and if not accepted, the reason therefore. The
Administrator need not accept an application for filing if any of the
requirements prescribed in paragraph (b) of this section is lacking or
is not set forth as to be readily understood. The applicant may amend
the application to meet the requirements of paragraph (b) of this
section. If the application is accepted for filing, the Administrator
shall issue and have published in the Federal Register his order on the
application, which shall include a reference to the legal authority
under which the order is issued and the findings of fact and conclusions
of law upon which the order is based. This order shall specify the date
on which it will take effect. The Administrator shall permit any
interested person to file written comments on or objections to the order
within 60 days of the date of publication in the Federal Register. If
any such comments or objections raise significant issues regarding any
finding of fact or conclusion of law upon which the order is based, the
Administrator shall immediately suspend the effectiveness of the order
until he may reconsider the application in light of the comments and
objections filed. Thereafter, the Administrator shall reinstate,
revoke, or amend his original order as he determines appropriate.
(d) The Administrator may at any time revoke or modify any
designation of excluded status granted pursuant to this section by
following the procedures set forth in paragraph (c) of this section for
handling an application for an exclusion which has been accepted for
filing.
(56 FR 42936, Aug. 30, 1991)
21 CFR 1308.26 Excluded veterinary anabolic steroid implant products.
(a) The following anabolic steroid-containing products which are
expressly intended for administration through implants to cattle or
other nonhuman species and which as been approved by the Secretary of
Health and Human Services for such administration are excluded from all
schedules pursuant to section 102(41)(B)(i) of the Act (21 U.S.C.
802(41)(B)(i):
(b) In accordance with section 102(41)(B)(ii) of the Act (21 U.S.C.
802(41)(B)(ii)) if any person prescribes, dispenses, or distributes a
product listed in paragraph (a) of this section for human use, such
person shall be considered to have prescribed, dispensed, or distributed
an anabolic steroid within the meaning of section 102(41)(A) of the Act
(21 U.S.C. 802(41)(A)).
(56 FR 42936, Aug. 30, 1991)
21 CFR 1308.26 Exempted Prescription Products
21 CFR 1308.31 Application for exemption of a nonnarcotic prescription
product.
(a) Any person seeking to have any compound, mixture, or preparation
containing any nonnarcotic controlled substance listed in 1308.12(e),
or in 1308.13 (b) or (c), or in 1308.14, or in 1308.15, exempted from
application of all or any part of the Act pursuant to section
201(g)(3)(A), of the Act (21 U.S.C. 811(g)(3)(A). may apply to the
Administrator, Drug Enforcement Administration, Washington, DC 20537,
for such exemption.
(b) An application for an exemption under this section shall contain
the following information:
(1) The complete quantitative composition of the dosage form.
(2) Description of the unit dosage form together with complete
labeling.
(3) A summary of the pharmacology of the product including animal
investigations and clinical evaluations and studies, with emphasis on
the psychic and/or physiological dependence liability (this must be done
for each of the active ingredients separately and for the combination
product).
(4) Details of synergisms and antagonisms among ingredients.
(5) Deterrent effects of the noncontrolled ingredients.
(6) Complete copies of all literature in support of claims.
(7) Reported instances of abuse.
(8) Reported and anticipated adverse effects.
(9) Number of dosage units produced for the past 2 years.
(c) Within a reasonable period of time after the receipt of an
application for an exemption under this section, the Administrator shall
notify the applicant of his acceptance or non-acceptance of the
application, and if not accepted, the reason therefor. The
Administrator need not accept an application for filing if any of the
requirements prescribed in paragraph (b) of this section is lacking or
is not set forth so as to be readily understood. If the applicant
desires, he may amend the application to meet the requirements of
paragraph (b) of this section. If accepted for filing, the
Administrator shall publish in the Federal Register general notice of
this proposed rulemaking in granting or denying the application. Such
notice shall include a reference to the legal authority under which the
rule is proposed, a statement of the proposed rule granting or denying
an exemption, and, in the discretion of the Administrator, a summary of
the subjects and issues involved. The Administrator shall permit any
interested person to file written comments on or objections to the
proposal and shall designate in the notice of proposed rule making the
time during which such filings may be made. After consideration of the
application and any comments on or objections to his proposed
rulemaking, the Administrator shall issue and publish in the Federal
Register his final order on the application, which shall set forth the
findings of fact and conclusions of law upon which the order is based.
This order shall specify the date on which it shall take effect, which
shall not be less than 30 days from the date of publication in the
Federal Register unless the Administrator finds that conditions of
public health or safety necessitate an earlier effective date, in which
event the Administrator shall specify in the order his findings as to
such conditions.
(d) The Administrator may revoke any exemption granted pursuant to
section 201(g)(3)(A) of the Act (21 U.S.C. 811(g)(3)(A)) by following
the procedures set forth in paragraph (c) of this section for handling
an application for an exemption which has been accepted for filing.
(38 FR 8254, Mar. 30, 1973. Redesignated at 38 FR 26609, Sept. 24,
1973, as amended at 44 FR 18968, Mar. 30, 1979; 52 FR 9803, Mar. 27,
1987)
21 CFR 1308.32 Exempted prescription products.
The following compounds, mixtures, or preparations which contain a
nonnarcotic controlled substance listed is 1308.12(e), or in 1308.13
(b) or (c), or in 1308.14 or in 1308.15 listed in the Table of
Exempted Prescription Products have been exempted by the Administrator
from the application of sections 302 through 305, 307 through 309, 1002
through 1004 of the Act (21 U.S.C. 822-825, 827-829, and 952-954) and
1301.24, 1301.31, 1301.32, and 1301.71 through 1301.76 of this chapter
for administrative purposes only. Any deviation from the quantitative
composition of any of the listed drugs shall require a petition for
exemption in order for the product to be exempted.
Company/Trade Name. Self explanatory.
NDC Code. Refers to the specific National Drug Code listing for the
particular formulated product.
Form. Refers to the type of dosage formulation:
CA=capsule
DP=drops
EL=elixir
EC=enteric coated capsule
ET=enteric coated tablet
LQ=liquid
SS=suspension
SU=suppository
TB=tablet
WA=wafer
XC=sustained release capsule
XT=sustained release tablet
Controlled Substance (mg or mg/ml). Refers to the type and amount of
controlled substance present in the mixture. If the dosage formulation
is solid (CA, EC, ET, SU, TB, WA, XC, or XT), the amount shown is
milligrams per dosage unit. If the dosage formulation is liquid (DP,
EL, LQ, or SS), the amount shown is milligrams per milliliter.
(52 FR 9803, Mar. 27, 1987, as amended at 53 FR 10861, April 1, 1988;
54 FR 11520, Mar. 21, 1989; 55 FR 9114, Mar. 12, 1990)
21 CFR 1308.32 Exempt Anabolic Steroid Products
21 CFR 1308.33 Exemption of certain anabolic steroid products;
application.
(a) The Administrator, upon the recommendation of the Secretary of
Health and Human Services, may, by regulation, exempt from the
application of all or any part of the Act any compound, mixture, or
preparation containing an anabolic steroid as defined in 1308.02 if,
because of its concentration, preparation, mixture or delivery system,
it has no significant potential for abuse (Pub. L. 101-647 section
1903(a)).
(b) Any person seeking to have any compound, mixture, or preparation
containing an anabolic steroid as defined in 1308.02 exempted from the
application of all or any part of the Act, pursuant to paragraph (a) of
this section, may apply to the Administrator, Drug Enforcement
Administration, Department of Justice, Washington, DC 20537.
(c) An application for an exemption under this section shall be
submitted in triplicate and contain the following information:
(1) The name and address of the applicant;
(2) The name of the product;
(3) The chemical structural formula or description for any anabolic
steroid contained in the product;
(4) The complete description of dosage and quantitative composition
of the dosage form;
(5) A description of the delivery system, if applicable;
(6) The indications and conditions for use in which species,
including whether or not this product is a prescription drug;
(7) Information to facilitate identification of the dosage form, such
as shape, color, coating, and scoring;
(8) The label and labeling of the immediate container and the
commercial containers, if any, of the product;
(9) The units in which the dosage form is ordinarily available; and
(10) The facts which the applicant believes justify:
(i) A determination that the product has no significant potential for
abuse and
(ii) a granting of an exemption under this section.
(d) Within a reasonable period of time after the receipt of the
application for an exemption under this section, the Administrator shall
notify the applicant of his acceptance or nonacceptance of the
application, and if not accepted, the reason therefor. The
Administrator need not accept an application for filing if any of the
requirements prescribed in paragraph (c) of this section is lacking or
is not set forth so as to be readily understood. The applicant may
amend the application to meet the requirements of paragraph (c) of this
section. If accepted for filing, the Administrator will request from
the Secretary for Health and Human Services his recommendation, as to
whether such product which contains an anabolic steroid should be
considered for exemption from certain portions of the Controlled
Substances Act. On receipt of the recommendation of the Secretary, the
Administrator shall make a determination as to whether the evidence
submitted or otherwise available sufficiently establishes that the
product possesses no significant potential for abuse. The Administrator
shall issue and publish in the Federal Register his order on the
application, which shall include a reference to the legal authority
under which the order is issued, and the findings of fact and
conclusions of law upon which the order is based. This order shall
specify the date on which it will take effect. The Administrator shall
permit any interested person to file written comments on or objections
to the order within 60 days of the date of publication of his order in
the Federal Register. If any such comments or objections raise
significant issues regarding any finding of fact or conclusion of law
upon which the order is based, the Administrator shall immediately
suspend the effectiveness of the order until he may reconsider the
application in light of the comments and objections filed. Thereafter,
the Administrator shall reinstate, revoke, or amend his original order
as he determines appropriate.
(e) The Administrator may revoke any exemption granted pursuant to
section 1903(a) of Public Law 101-647 by following the procedures set
forth in paragraph (d) of this section for handling an application for
an exemption which has been accepted for filing.
(56 FR 42936, Aug. 30, 1991; 57 FR 10815, Mar. 31, 1992)
21 CFR 1308.34 Exempt anabolic steroid products
The following anabolic steroid containing compounds, mixtures, or
preparations have been exempted by the Administrator from application of
sections 302 through 309 and 1002 through 1004 of the Act (21 U.S.C.
822-829 and 952-954) and 1301.24, 1301.31, 1301.32, and 1301.71
through 1301.76 of this chapter for administrative purposes only:
(56 FR 42937, Aug. 30, 1991)
21 CFR 1308.34 Hearings
21 CFR 1308.41 Hearings generally.
In any case where the Administrator shall hold a hearing on the
issuance, amendment, or repeal of rules pursuant to section 201 of the
Act, the procedures for such hearing and accompanying proceedings shall
be governed generally by the rulemaking procedures set forth in the
Administrative Procedure Act (5 U.S.C. 551-559) and specifically by
section 201 of the Act (21 U.S.C. 811), by 1308.42-1308.51, and by
1316.41-1316.67 of this chapter.
21 CFR 1308.42 Purpose of hearing.
If requested by any interested person after proceedings are initiated
pursuant to 1308.44, the Administrator shall hold a hearing for the
purpose of receiving factual evidence and expert opinion regarding the
issues involved in the issuance, amendment or repeal of a rule issuable
pursuant to section 201(a) of the Act (21 U.S.C. 811(a)). Extensive
argument should not be offered into evidence but rather presented in
opening or closing statements of counsel or in memoranda or proposed
findings of fact and conclusions of law.
21 CFR 1308.43 Waiver or modification of Rules.
The Administrator or the presiding officer (with respect to matters
pending before him) may modify or waive any rule in this part by notice
in advance of the hearing, if he determines that no party in the hearing
will be unduly prejudiced and the ends of justice will thereby be
served. Such notice of modification or waiver shall be made a part of
the record of the hearing.
21 CFR 1308.44 Initiation of proceedings for rulemaking.
(a) Any interested person may submit a petition to initiate
proceedings for the issuance, amendment, or repeal of any rule or
regulation issuable pursuant to the provisions of section 201 of the
Act.
(b) Petitions shall be submitted in quintuplicate to the
Administrator in the following form:
(Date)
Administrator, Drug Enforcement
Administration
Department of Justice,
Washington, DC 20537.
Dear Sir: The undersigned ---------------- hereby petitions the
Administrator to initiate proceedings for the issuance (amendment or
repeal) of a rule or regulation pursuant to section 201 of the
Controlled Substances Act.
Attached hereto and constituting a part of this petition are the
following:
(A) The proposed rule in the form proposed by the petitioner. (If
the petitioner seeks the amendment or repeal of an existing rule, the
existing rule, together with a reference to the section in the Code of
Federal Regulations where it appears, should be included.)
(B) A statement of the grounds which the petitioner relies for the
issuance (amendment or repeal) of the rule. (Such grounds shall include
a reasonably concise statement of the facts relied upon by the
petitioner, including a summary of any relevant medical or scientific
evidence known to the petitioner.)
All notices to be sent regarding this petition should be addressed
to:
Respectfully yours,
(c) Within a reasonable period of time after the receipt of a
petition, the Administrator shall notify the petitioner of his
acceptance or nonacceptance of the petition, and if not accepted, the
reason therefor. The Administrator need not accept a petition for
filing if any of the requirements prescribed in paragraph (b) of this
section is lacking or is not set forth so as to be readily understood.
If the petitioner desires, he may amend the petition to meet the
requirements of paragraph (b) of this section. If accepted for filing,
a petition may be denied by the Administrator within a reasonable period
of time thereafter if he finds the grounds upon which the petitioner
relies are not sufficient to justify the initiation of proceedings.
(d) The Administrator shall, before initiating proceedings for the
issuance, amendment, or repeal of any rule either to control a drug or
other substance, or to transfer a drug or other substance from one
schedule to another, or to remove a drug or other substance entirely
from the schedules, and after gathering the necessary data, request from
the Secretary a scientific and medical evaluation and the Secretary's
recommendations as to whether such drug or other substance should be so
controlled, transferred, or removed as a controlled substance. The
recommendations of the Secretary to the Administrator shall be binding
on the Administrator as to such scientific and medical matters, and if
the Secretary recommends that a drug or other substance not be
controlled, the Administrator shall not control that drug or other
substance.
(e) If the Administrator determines that the scientific and medical
evaluation and recommendations of the Secretary and all other relevant
data constitute substantial evidence of potential for abuse such as to
warrant control or additional control over the drug or other substance,
or substantial evidence that the drug or other substances should be
subjected to lesser control or removed entirely from the schedules, he
shall initiate proceedings for control, transfer, or removal as the case
may be.
(f) If and when the Administrator determines to initiate proceedings,
he shall publish in the Federal Register general notice of any proposed
rule making to issue, amend, or repeal any rule pursuant to section 201
of the Act. Such published notice shall include a statement of the
time, place, and nature of any hearings on the proposal in the event a
hearing is requested pursuant to 1308.45. Such hearings may not be
commenced until after the expiration of at least 30 days from the date
the general notice is published in the Federal Register. Such published
notice shall also include a reference to the legal authority under which
the rule is proposed, a statement of the proposed rule, and, in the
discretion of the Administrator, a summary of the subjects and issues
involved.
(g) The Administrator may permit any interested persons to file
written comments on or objections to the proposal and shall designate in
the notice of proposed rule making the time during which such filings
may be made.
21 CFR 1308.45 Request for hearing or appearance; waiver.
(a) Any interested person desiring a hearing on a proposed
rulemaking, shall, within 30 days after the date of publication of
notice of the proposed rulemaking in the Federal Register, file with the
Administrator a written request for a hearing in the form prescribed in
1316.47 of this chapter.
(b) Any interested person desiring to participate in a hearing
pursuant to 1308.41 shall, within 30 days after the date of publication
of the notice of hearing in the Federal Register, file with the
Administrator a written notice of his intention to participate in such
hearing in the form prescribed in 1316.48 of this chapter. Any person
filing a request for a hearing need not also file a notice of
appearance; the request for a hearing shall be deemed to be a notice of
appearance.
(c) Any interested person may, within the period permitted for filing
a request for a hearing, file with the Administrator a waiver of an
opportunity for a hearing or to participate in a hearing, together with
a written statement regarding his position on the matters of fact and
law involved in such hearing. Such statement, if admissible, shall be
made a part of the record and shall be considered in light of the lack
of opportunity for cross-examination in determining the weight to be
attached to matters of fact asserted therein.
(d) If any interested person fails to file a request for a hearing;
or if he so files and fails to appear at the hearing, he shall be deemed
to have waived his opportunity for the hearing or to participate in the
hearing, unless he shows good cause for such failure.
(e) If all interested persons waive or are deemed to waive their
opportunity for the hearing or to participate in the hearing, the
Administrator may cancel the hearing, if scheduled, and issue his final
order pursuant to 1308.48 without a hearing.
21 CFR 1308.46 Burden of proof.
At any hearing, the proponent for the issuance, amendment, or repeal
of any rule or regulation shall have the burden of proof.
21 CFR 1308.47 Time and place of hearing.
The hearing will commence at the place and time designated in the
notice of proposed rulemaking published in the Federal Register but
thereafter it may be moved to a different place and may be continued
from day to day or recessed to a later day without notice other than
announcement thereof by the presiding officer at the hearing.
21 CFR 1308.48 Final order.
As soon as practicable after the presiding officer has certified the
record to the Administrator, the Administrator shall cause to be
published in the Federal Register his order in the proceeding, which
shall set forth the final rule and the findings of fact and conclusions
of law upon which the rule is based. This order shall specify the date
on which it shall take effect, which shall not be less than 30 days from
the date of publication in the Federal Register unless the Administrator
finds that conditions of public health or safety necessitate an earlier
effective date, in which event the Administrator shall specify in the
order his findings as to such conditions.
21 CFR 1308.49 Control required under international treaty.
Pursuant to section 201(d) of the Act (21 U.S.C. 811(d)), where
control of a substance is required by U.S. obligations under
international treaties, conventions, or protocols in effect on May 1,
1971, the Administrator shall issue and publish in the Federal Register
an order controlling such substance under the schedule he deems most
appropriate to carry out obligations. Issuance of such an order shall
be without regard to the findings required by subsections 201(a) or
202(b) of the Act (21 U.S.C. 811(a) or 812(b)) and without regard to the
procedures prescribed by 1308.41 or subsections 201 (a) and (b) of the
Act (21 U.S.C. 811 (a) and (b)). An order controlling a substance shall
become effective 30 days from the date of publication in the Federal
Register, unless the Administrator finds that conditions of public
health or safety necessitate an earlier effective date, in which event
the Administrator shall specify in the order his findings as to such
conditions.
21 CFR 1308.50 Control of immediate precursors.
Pursuant to section 201(e) of the Act (21 U.S.C. 811(e)), the
Administrator may, without regard to the findings required by subsection
201(a) or 202 (b) of the Act (21 U.S.C. 811(a) or 812(b)) and without
regard to the procedures prescribed by 1308.41 or subsections 201 (a)
and (b) of the Act (21 U.S.C. 811(a) and (b)), issue and publish in the
Federal Register an order controlling an immediate precursor. The order
shall designate the schedule in which the immediate precursor is to be
placed, which shall be the same schedule in which the controlled
substance of which it is an immediate precursor is placed or any other
schedule with a higher numerical designation. An order controlling an
immediate precursor shall become effective 30 days from the date of
publication in the Federal Register, unless the Administrator finds that
conditions of public health or safety necessitate an earlier effective
date, in which event the Administrator shall specify in the order his
findings as to such conditions.
21 CFR 1308.51 Pending proceedings.
All administrative proceedings pending before the Administration on
the effective date of this part, including the matter of listing
chlordiazepoxide and its salts and diazepam as drugs subject to control
under the Drug Abuse Control Amendments of 1965, shall be continued and
brought to final determination in accord with the laws and regulations
in effect prior to such effective date.
21 CFR 1308.52 Emergency Scheduling.
Pursuant to 21 U.S.C. 811(h) and without regard to the requirements
of 21 U.S.C. 811(b) relating to the scientific and medical evaluation of
the Secretary of Health and Human Services, the Administrator may place
a substance into Schedule I on a temporary basis, if he determines that
such action is necessary to avoid an imminent hazard to the public
safety. An order issued under this section may not be effective before
the expiration of 30 days from:
(a) The date of publication by the Administrator of a notice in the
Federal Register of his intention to issue such order and the grounds
upon which such order is to be issued, and
(b) The date the Administrator has transmitted notification to the
Secretary of Health and Human Services of his intention to issue such
order. An order issued under this section shall be vacated upon the
conclusion of a subsequent rulemaking proceeding initiated under section
201(a) (21 U.S.C. 811(a)) with respect to such substance or at the end
of one year from the effective date of the order scheduling the
substance, except that during the pendency of proceedings under section
201(a) (21 U.S.C. 811(a)) with respect to the substance, the
Administrator may extend the temporary scheduling for up to six months.
(51 FR 15318, Apr. 23, 1986)
21 CFR 1308.52 PART 1309 -- (RESERVED)
21 CFR 1308.52 PART 1310 -- RECORDS AND REPORTS OF LISTED CHEMICALS AND
CERTAIN MACHINES
Sec.
1310.01 Definitions.
1310.02 Substances covered.
1310.03 Persons required to keep records and file reports.
1310.04 Maintenance of records.
1310.05 Reports.
1310.06 Content of records and reports.
1310.07 Proof of identity.
Authority: 21 U.S.C. 802, 830, 871(b).
Source: 54 FR 31665, Aug. 1, 1989, unless otherwise noted.
21 CFR 1310.01 Definitions.
As used in this part, the following terms shall have the meanings
specified:
(a) The term Act means the Controlled Substances Act, as amended (84
Stat. 1242; 21 U.S.C. 801) and/or the Controlled Substances Import and
Export Act, as amended (84 Stat. 1285; 21 U.S.C. 951).
(b) The term listed chemical means any listed precursor chemical or
listed essential chemical.
(c) The term listed precursor chemical means a chemical specifically
designated by the Administrator in 1310.02(a) that, in addition to
legitimate uses, is used in manufacturing a controlled substance in
violation of this title and is critical to the creation of a controlled
substance.
(d) The term listed essential chemical means a chemical specifically
designated by the Administrator in 1310.02(b) that, in addition to
legitimate uses, is used as a solvent, reagent, or catalyst in
manufacturing a controlled substance in violation of this title.
(e) The term regulated person means any individual, corporation,
partnership, association, or other legal entity who manufactures,
distributes, imports, or exports a listed chemical, a tableting machine,
or an encapsulating machine.
(f) The term regulated transaction means:
(1) A distribution, receipt, sale, importation or exportation of a
threshold amount as determined by the Administrator which includes a
cumulative threshold amount for multiple transactions of a listed
chemical, except that such term does not include:
(i) A domestic lawful distribution in the usual course of business
between agents or employees of a single regulated person; in this
context, agents or employees means individuals under the direct
management and control of the regulated person;
(ii) A delivery of a listed chemical to or by a common or contract
carrier for carriage in the lawful and usual course of the business of
the common or contract carrier, or to or by a warehouseman for storage
in the lawful and usual course of the business of the warehouseman,
except that if the carriage or storage is in connection with the
distribution, importation, or exportation of a listed chemical to a
third person, this paragraph does not relieve a distributor, importer,
or exporter from compliance with this part of part 1313 of this chapter;
(iii) Any category of transaction specified by regulation of the
Administration as excluded from this definition as unnecessary for
enforcement of the Act;
(iv) Any transaction in a listed chemical that is contained in a drug
that may be marketed or distributed lawfully in the United States under
the Federal Food, Drug, and Cosmetic Act; or
(v) Any transaction in a chemical mixture.
(2) A distribution, importation, or exportation of a tableting
machine or encapsulating machine except that such term does not include
a domestic lawful distribution in the usual course of business between
agents and employees of a single regulated person; in this context,
agents or employees means individuals under the direct management and
control of the regulated person.
(g) The term chemical mixture means a combination of two or more
chemical substances, at least one of which is not a listed precursor
chemical or listed essential chemical, except that such term does not
include any combination of a listed precursor chemical or a listed
essential chemical with another chemical that is present solely as an
impurity or which has been created to evade the requirements of the Act.
(h) The term retrievable means that records required by this section
are kept by automatic data processing systems or other electronic or
mechanized recordkeeping systems in such a manner that they can be
readily retrieved and separated out from all other records in a
reasonable time and/or records are kept on which the listed chemicals,
tableting machines, and encapsulating machines are asterisked, redlined,
or in some other manner visually identifiable apart from other items
appearing on the records or the maintained separate from all other
records.
(i) The term tableting machine means any manual, semi-automatic, or
fully automatic equipment which may be used for the compaction or
molding of powdered or granular solids, or semi-solid material, to
produce coherent solid tablets.
(j) The term encapsulating machine means any manual, semi-automatic,
or fully automatic equipment which may be used to fill shells or
capsules with any powdered, granular, semi-solid, or liquid material.
(k) Any term not defined in this section shall have the definition
set forth in section 102 and 1001 of the Act (21 U.S.C. 802 and 951) and
1301.02 of this chapter.
21 CFR 1310.02 Substances covered.
The following chemicals have been specifically designated by the
Administrator of the Drug Enforcement Administration as the listed
chemicals subject to the provisions of this part and part 1313 of this
chapter.
(a) Listed Precursor Chemicals:
(1) Anthranilic acid and its salts
(2) Benzyl cyanide
(3) Ephedrine, its salts, optical isomers, and salts of optical
isomers
(4) Ergonovine and its salts
(5) Ergotamine and its salts
(6) N-Acetylanthranilic acid and its salts
(7) Norpseudoephedrine, its salts, optical isomers, and salts of
optical isomers
(8) Phenylacetic acid and its salts
(9) Phenylpropanolamine, its salts, optical isomers, and salts of
optical isomers
(10) Piperidine and its salts
(11) Pseudoephedrine, its salts, optical isomers, and salts of
optical isomers
(12) 3,4-Methylenedioxyphenyl-2-propanone
(13) Methylamine and its salts.
(14) Ethylamine and its salts.
(15) D-lysergic acid, its salts, optical isomers, and salts of
optical isomers.
(16) Propionic anhydride.
(17) Insosafrole (Isosafrole).
(18) Safrole.
(19) Piperonal.
(20) N-Methylepherdrine, its salts, optical isomers, and salts of
optical isomers (N-Methylephedrine).
(21) N-Ethylephedrine, its salts, optical isomers, and salts of
optical isomers.
(22) N-Methylpseudoephedrine, its salts, optical isomers, and salts
of optical isomers.
(23) N-Ethylpseudoephedrine, its salts, optical isomers, and salts of
optical isomers.
(24) Hydriotic acid (Hydriodic Acid).
(b) Listed Essential Chemicals:
(1) Acetic anhydride
(2) Acetone
(3) Benzyl chloride
(4) Ethyl ether
(5) Potassium permanganate
(6) 2-Butanone (or Methyl Ethyl Ketone or MEK)
(7) Toluene
(c) The Administrator may add or delete a substance as a listed
chemical by publishing a final rule in the Federal Register following a
proposal which shall be published at least 30 days prior to the final
rule.
(d) Any person may petition the Administrator to have any substance
added or deleted from paragraphs (a) or (b) of this section.
(e) Any petition under this section shall contain the following
information:
(1) The name and address of the petitioner;
(2) The name of the chemical to which the petition pertains;
(3) The name and address of the manufacturer(s) of the chemical (if
known);
(4) A complete statement of the facts which the petitioner believes
justifies the addition or deletion of the substance from paragraphs (a)
or (b) of this section;
(5) The date of the petition.
(f) The Administrator may require the petitioner to submit such
documents or written statements of fact relevant to the petition as he
deems necessary in making a determination.
(g) Within a reasonable period of time after the receipt of the
petition, the Administrator shall notify the petitioner of his decision
and the reason therefor. The Administrator need not accept a petition
if any of the requirements prescribed in paragraph (e) of this section
or requested pursuant to paragraph (f) of this section are lacking or
are not clearly set forth as to be readily understood. If the
petitioner desires, he may amend and resubmit the petition to meet the
requirements of paragraphs (e) and (f) of this section.
(h) If a petition is granted or the Administrator, upon his own
motion, proposes to add or delete substances as listed chemicals as set
forth in paragraph (c) of this section, he shall issue and publish in
the Federal Register a proposal to add or delete a substance as a listed
chemical. The Administrator shall permit any interested person to file
written comments regarding the proposal within 30 days of the date of
publication of his order in the Federal Register. The Administrator
will consider any comments filed by interested persons and publish a
final rule in accordance with his decision in the matter.
(54 FR 31665, Aug. 1, 1989, as amended at 56 FR 48733, Sept. 26,
1991)
21 CFR 1310.03 Persons required to keep records and file reports.
Each regulated person who engages in a regulated transaction
involving a listed chemical, a tableting machine, or an encapsulating
machine shall keep a record of the transaction as specified by 1310.04
and file reports as specified by 1310.05. However, a non-regulated
person who acquires listed chemicals for internal consumption or ''end
use'' and becomes a regulated person by virtue of infrequent or rare
distribution of a listed chemical from inventory, shall not be required
to maintain receipt records of listed chemicals under this section.
(54 FR 31665, Aug. 1, 1989, as amended at 56 FR 8277, Feb. 28, 1991)
21 CFR 1310.04 Maintenance of records.
(a) Every record required to be kept subject to 1310.03 for a listed
precursor chemical, a tableting machine, or an encapsulating machine
shall be kept by the regulated person for four years after the date of
the transaction.
(b) Every record required to be kept subject to 1310.03 for a listed
essential chemical shall be kept by the regulated person for two years
after the date of the transaction.
(c) A record under this section shall be kept at the regulated
person's place of business where the transaction occurred, except that
records may be kept at a single, central location of the regulated
person if the regulated person has notified the Administration of the
intention to do so. Written notification must be submitted by
registered or certified mail, return receipt requested, to the Special
Agent in Charge of the DEA Divisional Office for the area in which the
records are required to be kept.
(d) The records required to be kept under this section shall be
readily retrievable and available for inspection and copying by
authorized employees of the Administration under the provisions of 21
U.S.C. 880.
(e) The regulated person with more than one place of business where
records are required to be kept shall devise a system to detect any
party purchasing from several individual locations of the regulated
person thereby seeking to avoid the application of the cumulative
threshold or evading the requirements of the Act.
(f) The quantitative threshold or the cumulative amount for multiple
transactions within a calendar month to be utilized in determining
whether a receipt, sale, importation or exportation is a regulated
transaction is as follows:
(1) Listed Precursor Chemicals:
(2) Listed Essential Chemicals:
(i) Imports and Exports
(ii) Domestic Sales
(iii) The cumulative threshold is not applicable to domestic sales of
Acetone, 2-Butanone (MEK), and Toluene.
(54 FR 31665, Aug. 1, 1989, as amended at 56 FR 48733, Sept. 26,
1991)
21 CFR 1310.05 Reports.
(a) Each regulated person shall report to the Special Agent in Charge
of the DEA Divisional Office for the area in which the regulated person
making the report is located, as follows:
(1) Any regulated transaction involving an extraordinary quantity of
a listed chemical, an uncommon method of payment or delivery, or any
other circumstance that the regulated person believes may indicate that
the listed chemical will be used in violation of this part.
(2) Any proposed regulated transaction with a person whose
description or other identifying characteristic the Administration has
previously furnished to the regulated person.
(3) Any unusual or excessive loss or disappearance of a listed
chemical under the control of the regulated person. The regulated
person responsible for reporting a loss in-transit is the supplier.
(4) Any domestic regulated transaction in a tableting machine or an
encapsulating machine.
(b) Each report submitted pursuant to paragraph (a) of this section
shall, whenever possible, be made orally to the DEA Divisional Office
for the area in which the regulated person making the report is located
at the earliest practicable opportunity after the regulated person
becomes aware of the circumstances involved and as much in advance of
the conclusion of the transaction as possible. Written reports of
transactions listed in paragraphs (a)(1), (a)(3) and (a)(4) of this
section will subsequently be filed as set forth in 1310.06 within 15
days after the regulated person becomes aware of the circumstances of
the event. A transaction may not be completed with a person whose
description or identifying characteristic has previously been furnished
to the regulated person by the Administration unless the transaction is
approved by the Administration.
(c) Each regulated person who imports or exports a tableting machine,
as defined in 1310.01(i), or encapsulation machine, as defined in
1310.01(j), shall file a report (not a 486) of such importation or
exportation with the Administration at the following address on or
before the date of importation or exportation: Drug Enforcement
Administration, P.O. Box 28346, Washington, DC 20038. In order to
facilitate the importation or exportation of any tableting machine or
encapsulating machine and implement the purpose of the Act, regulated
persons may wish to report to the Administration as far in advance as
possible. A copy of the report may be transmitted directly to the Drug
Enforcement Administration through electronic facsimile media. Any
tableting machine or encapsulating machine may be imported or exported
if that machine is needed for medical, commercial, scientific, or other
legitimate uses. However, an importation or exportation of a tableting
machine or encapsulating machine may not be completed with a person
whose description or identifying characteristic has previously been
furnished to the regulated person by the Administration unless the
transaction is approved by the Administration.
(54 FR 31665, Aug. 1, 1989, as amended at 57 FR 2461, Jan. 22, 1992)
21 CFR 1310.06 Content of records and reports.
(a) Each record required by 1310.03 shall include the following:
(1) The name and address of each party to the regulated transaction.
(2) The date of the regulated transaction.
(3) The name, quantity and form of packaging of the listed chemical
or a description of the tableting machine or encapsulating machine
(including make, model and serial number).
(4) The method of transfer (company truck, picked up by customer,
etc.).
(5) The type of identification used by the purchaser and any unique
number on that identification.
(b) For purposes of this section, normal business records shall be
considered adequate if they contain the information listed in paragraph
(a) of this section and are readily retrievable from other business
records of the regulated person.
(c) Each report required by 1310.05(a) shall include the information
as specified by 1310.06(a) and, where obtainable, the telephone number
of the other party. A report submitted pursuant to 1310.05(a)(1) or
(a)(3) must also include a description of the circumstances leading the
regulated person to make the report, such as the reason that the method
of payment was uncommon or the loss unusual. If the report is for a
loss or disappearance under 1310.05(a)(3), the circumstances of such
loss must be provided (in-transit, theft from premises, etc.).
(d) A suggested format for the reports is provided below:
Supplier:
Name
Business Address
City
State
Zip
Business Phone
Purchaser:
Name
Business Address
City
State
Zip
Business Phone
Identification
Shipping Address (if different than purchaser address):
Street
City
State
Zip
Date of Shipment
Name of Listed Chemical(s)
Quantity and Form of Packaging
Description of Machine:
Make:
Model:
Serial
Method of Transfer
If Loss or Disappearance:
Date of Loss
Type of Loss
Description of Circumstances
Public reporting burden for this collection of information is
estimated to average ten minutes per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the collection
of information. Send comments regarding this burden estimate or any
other aspect of this collection of information, including suggestions
for reducing this burden, to the Drug Enforcement Administration,
Records Management Section, Washington, DC 20537; and to the Office of
Management and Budget, Paperwork Reduction Project No. 1117-0024,
Washington, DC 20503.
(e) Each report of an importation of a tableting machine or an
encapsulating machine required by 1310.05(c) shall include the
following information:
(1) The name, address, telephone number, telex number, and, where
available, the facsimile number of the regulated person; the name,
address, telephone number, telex number, and, where available, the
facsimile number of the import broker or forwarding agent, if any:
(2) The description of each machine (including make, model, and
serial number) and the number of machines being received;
(3) The proposed import date, and the first U.S. Customs Port of
Entry; and
(4) The name, address, telephone number, telex number, and, where
available, the facsimile number of the consignor in the foreign country
of exportation.
(f) Each report of an exportation of a tableting machine or an
encapsulating machine required by 1310.05(c) shall include the
following information:
(1) The name, address, telephone number, telex number, and, where
available, the facsimile number of the regulated person; the name,
address, telephone number, telex number, and, where available, the
facsimile number of the export broker, if any;
(2) The description of each machine (including make, model, and
serial number) and the number of machines being shipped;
(3) The proposed export date, the U.S. Customs Port of exportation,
and the foreign Port of Entry; and
(4) The name, address, telephone, telex, and, where available, the
facsimile number of the consignee in the country where the shipment is
destined; the name(s) and address(es) of any intermediate consignee(s).
(g) Declared exports of machines which are refused, rejected, or
otherwise deemed undeliverable may be returned to the U.S. exporter of
record. A brief written report outlining the circumstances must be sent
to the Drug Enforcement Administration, P.O. Box 28346, Washington, DC
20038, following the return within a reasonable time. This provision
does not apply to shipments that have cleared foreign customs, been
delivered, and accepted by the foreign consignee. Returns to third
parties in the United States will be regarded as imports.
(54 FR 31665, Aug. 1, 1989, as amended at 57 FR 2462, Jan. 22, 1992)
21 CFR 1310.07 Proof of identity.
(a) Each regulated person who engages in a regulated transaction must
identify the other party to the transaction. For domestic transactions,
this shall be accomplished by having the other party present documents
which would verify the identity of the other party to the regulated
person at the time the order is placed. For export transactions, this
shall be accomplished by good faith inquiry through reasonably available
research documents or publicly available information which would
indicate the existence of the foreign customer. No proof of identity is
required for foreign suppliers.
(b) The regulated person must verify the existence and apparent
validity of a business entity ordering a listed chemical, tableting
machine or encapsulating machine. For domestic transactions, this may
be accomplished by such methods as checking the telephone directory, the
local credit bureau, the local Chamber of Commerce or the local Better
Business Bureau. For export transactions, a good faith inquiry to
verify the existence and apparent validity of a foreign business entity
may be accomplished by such methods as verifying the business telephone
listing through international telephone information, the firm's listing
in international or foreign national chemical directories or other
commerce directories or trade publications, confirmation through foreign
subsidiaries of the U.S. regulated person, verification through the
country of destination's embassy Commercial Attache, or official
documents provided by the purchaser which confirm the existence and
apparent validity.
(c) When transacting business with a new representative of a firm,
the regulated person must verify the claimed agency status of the
representative.
(d) For sales to individuals or cash purchasers, the type of
documents and other evidence of proof must consist of at least a
signature of the purchaser, a driver's license and one other form of
identification. Any exports to individuals or exports paid in cash are
suspect and should be handled as such. For such exports, the regulated
person shall diligently obtain from the purchaser or independently seek
to confirm clear documentation which proves the person is properly
identified such as through foreign identity documents, driver's license,
passport information and photograph, etc. Any regulated person who
fails to adequately prove the identity of the other party to the
transaction may be subject to the specific penalties provided for
violations of law related to regulated transactions in listed chemicals.
(e) For a new customer who is not an individual or cash customer, the
regulated person shall establish the identity of the authorized
purchasing agent or agents and have on file that person's signature,
electronic password, or other identification. Once the authorized
purchasing agent has been established, the agent list may be updated
annually rather than on each order. The regulated person must ensure
that shipments are not made unless the order is placed by an authorized
agent of record.
(f) With respect to electronic orders, the identity of the purchaser
shall consist of a computer password, identification number or some
other means of identification consistent with electronic orders and with
1310.07(e).
21 CFR 1310.07 PART 1311 -- REGISTRATION OF IMPORTERS AND EXPORTERS OF
CONTROLLED SUBSTANCES
Sec.
1311.01 Scope of Part 1311.
1311.02 Definitions.
1311.03 Information; special instructions.
1311.11 Fee amounts.
1311.12 Time and method of payment; refund.
1311.21 Persons required to register.
1311.22 Separate registration for independent activities.
1311.23 Separate registrations for separate locations.
1311.24 Exemption of certain military personnel.
1311.25 Exemption of law enforcement officials.
1311.26 Exemption for ocean vessels, commercial aircraft, and certain
other entities.
1311.27 Exemptions for personal medical use.
1311.31 Time for application for registration; expiration date.
1311.32 Application forms; contents; signature.
1311.33 Filing of application; acceptance for filing; additional
information; amendments to and withdrawals of applications.
Suspension of Registration
1311.41 Administrative review generally.
1311.42 Application for importation of Schedule I and II substances.
1311.43 Certificate of registration; denial of registration.
1311.44 Suspension or revocation of registration.
1311.45 Suspension of registration pending final order.
1311.46 Extension of registration pending final order.
1311.47 Order to show cause.
1311.51 Hearings generally.
1311.52 Hearings on application for importation of Schedule I and II
substances.
1311.53 Burden of proof.
1311.61 Modification in registration.
1311.62 Termination of registration.
1311.63 Transfer of registration.
1311.64 Termination of provisional registration.
Authority: 21 U.S.C. 952, 956, 957, 958, unless otherwise noted.
Source: 36 FR 7812, Apr. 24, 1971, unless otherwise noted.
Redesignated at 38 FR 26609, Sept. 24, 1973.
21 CFR 1310.07 General Information
21 CFR 1311.01 Scope of Part 1311.
Procedures governing the registration of importers and exporters of
controlled substances pursuant to sections 1007 and 1008 of the Act (21
U.S.C. 957-958) are set forth generally by those sections and
specifically by the sections of this part.
21 CFR 1311.02 Definitions.
As used in this part, the following terms shall have the meanings
specified:
(a) The term Act means the Controlled Substances Act (84 Stat. 1242;
21 U.S.C. 801) and/or the Controlled Substances Import and Export Act
(84 Stat. 1285; 21 U.S.C. 951).
(b) The term customs territory of the United States means the several
States, the District of Columbia, and Puerto Rico.
(c) The term export means, with respect to any article, any taking
out or removal of such article from the jurisdiction of the United
States (whether or not such taking out or removal constitutes an
exportation within the meaning of the customs and related laws of the
United States).
(d) The term exporter includes every person who exports, or who acts
as an export broker for exportation of, controlled substances listed in
any schedule.
(e) The term hearing means any hearing held pursuant to this part for
the granting, denial, revocation or suspension of a registration
pursuant to section 1008 of the Act (21 U.S.C. 958).
(f) The term import means, with respect to any article, any bringing
in or introduction of such article into either the jurisdiction of the
United States or the customs territory of the United States, and from
the jurisdiction of the United States into the customs territory of the
United States (whether or not such bringing in or introduction
constitutes an importation within the meaning of the tariff laws of the
United States).
(g) The term importer includes every person who imports, or who acts
as an import broker for importation of, controlled substances listed in
any schedule.
(h) The term jurisdiction of the United States means the customs
territory of the United States, the Virgin Islands, the Canal Zone,
Guam, American Samoa, and the Trust Territories of the Pacific Islands.
(i) The terms register and registration refer only to registration
required and permitted by section 1007 of the Act (21 U.S.C. 957).
(j) The term registrant means any person who is registered pursuant
to either section 303 or section 1008 of the Act (21 U.S.C. 823 or
958).
(k) Any term not defined in this section shall have the definition
set forth in section 1001 of the Act (21 U.S.C. 951) or 1301.02 of this
chapter.
(36 FR 7812, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 52 FR 17288, May 7, 1987)
21 CFR 1311.03 Information; special instructions.
Information regarding procedures under these rules and instructions
supplementing these rules will be furnished upon request by writing to
the Registration Unit, Drug Enforcement Administration, Department of
Justice, Post Office Box 28083, Central Station, Washington, DC 20005.
(36 FR 7815, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 51 FR 5319, Feb. 13, 1986)
21 CFR 1311.03 Fees for Registration and Reregistration
21 CFR 1311.11 Fee amounts.
(a) For each registration or reregistration to import controlled
substances, the registrant shall pay an application fee of $125.
(b) For each registration or reregistration to export controlled
substances, the registrant shall pay an application fee of $125.
(48 FR 56044, Dec. 19, 1983, as amended at 53 FR 4963, Feb. 19, 1988)
21 CFR 1311.12 Time and method of payment; refund.
The time and method of payment of application fees and refunds of
application fees shall be as provided in 1301.12 of this chapter.
(53 FR 4963, Feb. 19, 1988)
21 CFR 1311.12 Requirements of Registration
21 CFR 1311.21 Persons required to register.
Every person who imports any controlled substance, or who exports any
controlled substance, or who proposes to engage in such importation or
exportation, shall obtain annually a registration unless exempted by law
or pursuant to 1311.24 through 1311.27. Only persons actually engaged
in such activities are required to obtain registration; related or
affiliated persons who are not engaged in such activities are not
required to be registered. (For example, a stockholder or parent
corporation importing controlled substances is not required to obtain a
registration.)
(52 FR 17288, May 7, 1987)
21 CFR 1311.22 Separate registration for independent activities.
(a) Every person who engages in more than one group of independent
activities, as described in 1301.22 of this chapter shall obtain a
separate registration for each group of activities as required by that
section.
(b) A single registration to engage in any group of independent
activities may include one or more controlled substances listed in the
schedules authorized in that group of independent activities. A person
registered to conduct research with controlled substances listed in
schedule I may conduct research with any substance listed in schedule I
for which he has filed and had approved a research protocol.
(36 FR 7812, Apr. 24, 1971, as amended at 36 FR 18734, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1311.23 Separate registrations for separate locations.
(a) A separate registration is required for each principal place of
business at one general physical location where controlled substances
are imported or exported by a person.
(b) The following locations shall be deemed not to be places where
controlled substances are imported or exported:
(1) A warehouse where controlled substances are stored on behalf of a
registered person, unless such substances are distributed directly from
such warehouse to persons other than the registered person or persons
not required to register by virtue of subsection 1007(b)(1)(B) (21
U.S.C. 957(b)(1)(B)); and
(2) An office used by agents of a registrant where sales of
controlled substances are solicited, made, or supervised but which
neither contains such substances (other than substances for display
purposes) nor serves as a distribution point for filling sales orders.
21 CFR 1311.24 Exemption of certain military personnel.
The requirement of registration is waived for any official or agency
of the U.S. Army, Navy, Marine Corps, Air Force, Coast Guard, or Public
Health Service who or which is authorized to import or export controlled
substances in the course of his official duties.
(36 FR 7812, Apr. 24, 1971, as amended at 36 FR 18734, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1311.25 Exemption of law enforcement officials.
The requirement of registration is waived for any officer or employee
of the Administration, any officer of the U.S. Customs Service, any
officer or employee of the U.S. Food and Drug Administration, and any
other Federal officer who is lawfully engaged in the enforcement of any
Federal law relating to controlled substances, drugs or customs, and is
duly authorized to possess, import or export controlled substances in
the course of his official duties.
21 CFR 1311.26 Exemption for ocean vessels, commercial aircraft, and
certain other entities.
Owners or operators of vessels, aircraft, or other entities described
in 1301.28 of this chapter or in Article 32 of the Single Convention on
Narcotic Drugs, 1961, or in Article 14 of the Convention on Psychotropic
Substances, 1971, shall not be deemed to import or export any controlled
substances purchased and stored in accordance with that section or
applicable article.
(52 FR 17288, May 7, 1987)
21 CFR 1311.27 Exemptions for personal medical use.
Any individual who has in his possession a controlled substance
listed in schedules II, III, IV, or V, which he has lawfully obtained
for his personal medical use, or for administration to an animal
accompanying him, may enter or depart the United States with such
substance notwithstanding sections 1002-1005 of the Act (21 U.S.C.
952-955), providing the following conditions are met:
(a) The controlled substance is in the original container in which it
was dispensed to the individual; and
(b) The individual makes a declaration to an appropriate official of
the U.S. Customs Service stating:
(1) That the controlled substance is possessed for his personal use,
or for an animal accompanying him; and
(2) The trade or chemical name and the symbol designating the
schedule of the controlled substance if it appears on the container
label, or, if such name does not appear on the label, the name and
address of the pharmacy or practitioner who dispensed the substance and
the prescription number, if any.
(36 FR 7812, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971;
36 FR 18734, Sept. 21, 1971. Redesignated at 37 FR 15922, Aug. 8,
1972, and at 38 FR 26609, Sept. 24, 1973)
21 CFR 1311.27 Applications for Registration
21 CFR 1311.31 Time for application for registration; expiration date.
(a) Any person who is required to be registered and who is not so
registered may apply for registration at any time. No person required
to be registered shall engage in any activity for which registration is
required until the application for registration is granted and a
Certificate of Registration is issued by the Administrator of such
person.
(b) Any person who is registered may apply to be reregistered not
more than 60 days before the expiration date of his registration.
(c) At the time any person is first registered, he will be assigned
to one of 12 groups in the same manner and with the same effect as
provided in 1301.31 of this chapter.
(36 FR 7812, Apr. 24, 1971, as amended at 36 FR 18734, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1311.32 Application forms; contents; signature.
(a) Any person who is required to be registered to import or export
controlled substances, and who is not so registered, shall apply on DEA
Form 225.
(b) Any person who is registered to import or export controlled
substances, shall apply for reregistration on DEA Form 225a.
(c) DEA Form 225 may be obtained at any regional office of the
Administration or by writing to the Registration Unit, Drug Enforcement
Administration, Department of Justice, Post Office Box 28083, Central
Station, Washington, DC 20005. DEA Form 225a will be mailed to each
registered importer and exporter approximately 60 days before the
expiration date of his registration; if any registered person does not
receive such forms within 45 days before the expiration date of his
registration, he must promptly give notice of such fact and request such
forms by writing to the Registration Branch of the Administration at the
foregoing address.
(d) Each application for registration to import or export controlled
substances shall include the Administration Controlled Substances Code
Number, as set forth in part 1308 of this chapter, for each controlled
substance whose importation or exportation is to be authorized by such
registration.
(e) Registration as an importer or exporter shall not entitle a
registrant to import or export any controlled substance not specified in
such registration.
(f) Each application shall include all information called for in the
form, unless the item is not applicable, in which case this fact shall
be indicated.
(g) Each application, attachment, or other document filed as part of
an application, shall be signed by the applicant, if an individual; by
a partner of the applicant, if a partnership; or by an officer of the
applicant, if a corporation, association, trust or other entity. An
applicant may authorize one or more individuals, who would not otherwise
be authorized to do so, to filing applications for the applicant by
filing with the Registration Unit of the Administration a power of
attorney for each such individual. The power of attorney shall be
signed by a person who is authorized to sign applications under this
paragraph and shall contain the signature of the individual being
authorized to sign applications. The power of attorney shall be valid
until revoked by the applicant.
(36 FR 7812, Apr. 24, 1971, as amended at 36 FR 18734, Sept. 21,
1971. Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 51 FR
5319 and 5320, Feb. 13, 1986; 52 FR 17288, May 7, 1987; 53 FR 4963,
Feb. 19, 1988)
21 CFR 1311.33 Filing of application; acceptance for filing;
additional information; amendments to and withdrawals of applications.
Applications for registration to import or export controlled
substances shall be filed, accepted for filing, supplemented, amended
and withdrawn as provided in 1301.34-1301.37 of this chapter.
21 CFR 1311.33 Action on Applications for Registration: Revocation or Suspension of Registration
21 CFR 1311.41 Administrative review generally.
The Administrator may inspect, or cause to be inspected, the
establishment of an applicant or registrant, pursuant to subpart A of
part 1316 of this chapter. The Administrator shall review the
application for registration and other information gathered by the
Administrator regarding an applicant in order to determine whether the
applicable standards of section 1008 of the Act (21 U.S.C. 958) have
been met by the applicant.
21 CFR 1311.42 Application for importation of Schedule I and II
substances.
(a) In the case of an application for registration or reregistration
to import a controlled substance listed in Schedule I or II, under the
authority of section 1002(a)(2)(B) of the Act (21 U.S.C. 952(a)(2)(B)),
the Administrator shall, upon the filing of such application, publish in
the Federal Register a notice naming the applicant and stating that such
applicant has applied to be registered as an importer of a Schedule I or
II controlled substance, which substance shall be identified. A copy of
said notice shall be mailed simultaneously to each person registered as
a bulk manufacturer of that controlled substance and to any other
applicant therefor. Any such person may, within 30 days from the date
of publication of the notice in the Federal Register, file written
comments on or objections to the issuance of the proposed registration,
and may, at the same time, file a written request for a hearing on the
application pursuant to 1301.54. If a hearing is requested, the
Administrator shall hold a hearing on the application in accordance with
1301.54. Notice of the hearing shall be published in the Federal
Register, and shall be mailed simultaneously to the applicant and to all
persons to whom notice of the application was mailed. Any such person
may participate in the hearing by filing a notice of appearance in
accordance with 1301.54 of this chapter. Notice of the hearing shall
contain a summary of all comments and objections filed regarding the
application and shall state the time and place for the hearing, which
shall not be less than 30 days after the date of publication of such
notice in the Federal Register. A hearing pursuant to this section may
be consolidated with a hearing held pursuant to 1311.43 or 1311.44 of
this part.
(b) The Administrator shall register an applicant to import a
controlled substance listed in Schedule I or II if he determines that
such registration is consistent with the public interest and with U.S.
obligations under international treaties, conventions, or protocols in
effect on May 1, 1971. In determining the public interest, the
following factors shall be considered:
(1) Maintenance of effective controls against diversion of particular
controlled substances and any controlled substance in Schedule I or II
compounded therefrom into other than legitimate medical, scientific
research, or industrial channels, by limiting the importation and bulk
manufacture of such controlled substances to a number of establishments
which can produce an adequate and uninterrupted supply of these
substances under adequately competitive conditions for legitimate
medical, scientific, research, and industrial purposes;
(2) Compliance with applicable State and local law;
(3) Promotion of technical advances in the art of manufacturing these
substances and the development of new substances;
(4) Prior conviction record of applicant under Federal and State laws
relating to the manufacture, distribution, or dispensing of such
substances;
(5) Past experience in the manufacture of controlled substances, and
the existence in the establishment of effective control against
diversion;
(6) That the applicant will be permitted to import only:
(i) Such amounts of crude opium, poppy straw, concentrate of poppy
straw, and coca leaves as the Administrator finds to be necessary to
provide for medical, scientific, or other legitimate purposes; or
(ii) Such amounts of any controlled substances listed in Schedule I
or II as the Administrator shall find to be necessary to provide for the
medical, scientific, or other legitimate needs of the United States
during an emergency in which domestic supplies of such substances are
found by the Administrator to be inadequate; or
(iii) Such amounts of any controlled substance listed in Schedule I
or II as the Administrator shall find to be necessary to provide for the
medical, scientific, or other legitimate needs of the United States in
any case in which the Administrator finds that competition among
domestic manufacturers of the controlled substance is inadequate and
will not be rendered adequate by the registration of additional
manufacturers under section 303 of the Act (21 U.S.C. 823); or
(iv) Such limited quantities of any controlled substance listed in
Schedule I or II as the Administrator shall find to be necessary for
scientific, analytical or research uses; and
(7) Such other factors as may be relevant to and consistent with the
public health and safety.
(c) In determining whether the applicant can and will maintain
effective controls against diversion within the meaning of paragraph
(b), the Administrator shall consider among other factors:
(1) Compliance with the security requirements set forth in
1301.71-1301.76 of this chapter; and
(2) Employment of security procedures to guard against in-transit
losses within and without of the jurisdiction of the United States.
(d) In determining whether competition among the domestic
manufacturers of a controlled substance is adequate within the meaning
of paragraphs (b)(1) and (6)(iii) of this section, as well as section
1002(a)(2)(B) of the Act (21 U.S.C. 952(a)(2)(B)), the Administrator
shall consider:
(1) The extent of price rigidity in the light of changes in (i) raw
materials and other costs and (ii) conditions of supply and demand;
(2) The extent of service and quality competition among the domestic
manufacturers for shares of the domestic market including (i) shifts in
market shares and (ii) shifts in individual customers among domestic
manufacturers;
(3) The existence of substantial differentials between (i) domestic
prices and (ii) the higher of prices generally prevailing in foreign
markets or the prices at which the applicant for registration to import
is committed to undertake to provide such products in the domestic
market in conformity with the Act. In determining the existence of
substantial differentials hereunder, appropriate consideration should be
given to any additional costs imposed on domestic manufacturers by the
requirements of the Act and such other cost-related and other factors as
the Administrator may deem relevant. In no event shall an importer's
offering prices in the United States be considered if they are lower
than those prevailing in the foreign market or markets from which the
importer is obtaining his supply;
(4) The existence of competitive restraints imposed upon domestic
manufacturers by governmental regulations; and
(5) Such other factors as may be relevant to the determinations
required under this paragraph.
(e) In considering the scope of the domestic market, consideration
shall be given to substitute products which are reasonably
interchangeable in terms of price, quality and use.
(f) The fact that the number of existing manufacturers is small shall
not demonstrate, in and of itself, that adequate competition among them
does not exist.
(36 FR 7812, Apr. 24, 1971, as amended at 36 FR 18734, Sept. 21,
1971; 37 FR 15922, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept.
24, 1973, and amended at 52 FR 17288, May 7, 1987)
21 CFR 1311.43 Certificate of registration; denial of registration.
(a) The Administrator shall issue a Certificate of Registration (DEA
Form 223) to an applicant if the issuance of registration or
reregistration is required under the applicable provisions of section
1008 of the Act (21 U.S.C. 958). In the event the issuance of
registration or reregistration is not required, the Administrator shall
deny the application. Before denying any application, the Administrator
shall issue an order to show cause pursuant to 1311.47 and, if
requested by the applicant, shall hold a hearing on the application
pursuant to 1311.51.
(b) The Certificate of Registration (DEA Form 223) shall contain the
information, and shall be maintained in the manner prescribed in
1301.44(b) of this chapter.
(36 FR 7812, Apr. 24, 1971, as amended at 37 FR 15922, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 53 FR 4963,
Feb. 19, 1988)
21 CFR 1311.44 Suspension or revocation of registration.
(a) The Administrator may suspend any registration pursuant to
section 1008(d) of the Act (21 U.S.C. 958(d)) for any period of time.
(b) The Administrator may revoke or suspend a registration issued
under section 1008(d) of the Act (21 U.S.C. 958(d)) if he determines
that such registration is inconsistent with the public interest as
defined in that section or with the United States obligations under
international treaties, conventions, or protocols in effect on October
12, 1984.
(c) The Administrator may revoke or suspend a registration issued
under section 1008(c) of the Act (21 U.S.C. 958(c)) if he determines
that such registration is inconsistent with the public interest as
defined in that section or with the United States obligations under
international treaties, conventions, or protocols in effect on October
12, 1984.
(d) The Administrator may limit the revocation or suspension of a
registration to the particular controlled substance, or substances, with
respect to which grounds for revocation or suspension exist.
(e) Before revoking or suspending any registration, the Administrator
shall issue an order to show cause pursuant to 1311.47, and if
requested by the registrant, shall hold a hearing pursuant to 1311.51.
Notwithstanding the requirements of this section, however, the
Administrator may suspend any registration pending a final order
pursuant to 1311.45.
(f) Upon service of the order of the Administrator suspending or
revoking registration, the registrant shall immediately deliver his
Certificate of Registration and any order forms and import or export
permits in his possession to the nearest office of the Administrator.
The suspension or revocation of a registration shall suspend or revoke
any import or export permits issued pursuant to part 1312 of this
chapter. Also, upon service of the order of the Administrator revoking
or suspending registration, the registrant shall, as instructed by the
Administrator:
(1) Deliver all controlled substances in his possession to the
nearest office of the Administration pursuant to section 1008(d)(6) of
the Act (21 U.S.C. 958(d)(6)); or
(2) Deliver all controlled substances in his possession to authorized
agents of the Administration who will either remove the substances or
place them under seal as described in section as described in section
1008(d)(6) of the Act (21 U.S.C. 1008(d)(6)).
(g) In the event that revocation or suspension is limited to a
particular controlled substance or substances, the registrant shall be
given a new Certificate of Registration for all substances not affected
by such revocation or suspension. The registrant shall deliver the old
Certificate of Registration and, if appropriate, any order forms and
import or export permits in his possession to the nearest office of the
Administrator. Also, upon service of the order of the Administrator
revoking or suspending registration, the registrant shall, as instructed
by the Administrator:
(1) Deliver to the nearest office of the Administration, pursuant to
section 1008(d)(6) of the Act (21 U.S.C. 958(d)(6)), all of the
particular controlled substance or substances affected by the revocation
or suspension which are in his possession; or
(2) Deliver all of such substances to authorized agents of the
Administration who will either remove the substances or place them under
seal as described in section 1008(d)(6) of the Act (21 U.S.C.
958(d)(6)).
(36 FR 7812, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971;
37 FR 15922, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 52 FR 17288, May 7, 1987)
21 CFR 1311.45 Suspension of registration pending final order.
(a) The Administrator may suspend any registration simultaneously
with or at any time subsequent to the service upon the registrant of an
order to show cause why such registration should not be revoked or
suspended, in any case where he finds that there is an imminent danger
to the public health or safety. If the Administrator so suspends, he
shall serve with the order to show cause pursuant to 1311.47 an order
of immediate suspension which shall contain a statement of his findings
regarding the danger to public health or safety.
(b) Upon receipt of the order of immediate suspension, the registrant
shall promptly return his Certificate of Registration and any other
forms and import or export permits in his possession to the nearest
office of the Administrator. The suspension of any registration under
this section shall suspend any import and export permits issued pursuant
to part 1312 of this chapter.
(c) Any suspension shall continue in effect until the conclusion of
all proceedings upon revocation or suspension, including any judicial
review thereof, unless sooner withdrawn by the Administrator or
dissolved by a court of competent jurisdiction. Any registrant whose
registration is suspended under this section may request a hearing on
the revocation or suspension of his registration at a time earlier than
specified in the order to show cause pursuant to 1311.47 which request
shall be granted by the Administrator, who shall fix a date for such
hearing as early as reasonably possible.
21 CFR 1311.46 Extension of registration pending final order.
An applicant for reregistration (who is doing business under a
registration previously granted and not revoked or suspended) may have
the existing registration extended and continue in effect until the date
on which the Administrator issues his order on the application for
reregistration as provided in 1301.47 of this chapter.
21 CFR 1311.47 Order to show cause.
(a) If, upon examination of the application for registration from any
applicant and other information gathered by the Administration regarding
the applicant, the Administrator is unable to make the determinations
required by the applicable provisions of sections 303 and 1008(d) of the
Act (21 U.S.C. 823 and 958(d)) to register the applicant, the
Administrator shall serve upon the applicant an order to show cause why
the application for registration should not be denied, as provided in
1301.48 of this chapter.
(b) If, upon information gathered by the Administration regarding any
registrant, the Administrator determines that the registration of such
registrant is subject to suspension or revocation pursuant to section
1008(d) of the Act (21 U.S.C. 958(d)), the Administrator shall serve
upon the registrant an order to show cause why the registration should
not be revoked or suspended, as provided in 1301.48 of this chapter.
(52 FR 17289, May 7, 1987)
21 CFR 1311.47 Hearings
21 CFR 1311.51 Hearings generally.
(a) In any case where the Administrator shall hold a hearing on any
registration or application thereof, the procedures for such hearing
shall be governed generally by the adjudication procedures set forth in
the Administrative Procedure Act (5 U.S.C. 551-559) and specifically by
section 1008 of the Act (21 U.S.C. 958), by 1311.52-1311.53, by the
procedures for hearings pursuant to sections 303 and 304 of the Act (21
U.S.C. 823-824) set forth in 1301.51-1301.57 of this chapter, and by
the procedures for administrative hearings under the Act set forth in
1316.41-1316.67 of this chapter.
(b) Any hearing under this part shall be independent of, and not in
lieu of, criminal prosecutions or other proceedings under the Act or any
other law of the United States.
(36 FR 7812, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1311.52 Hearings on application for importation of Schedule I
and II substances.
A hearing on an application for registration to import a basic class
of any controlled substance listed in Schedule I or II required by
1311.42 shall be held under the same procedures prescribed in
1301.51-1301.57 of this chapter for a hearing on an application for
registration to manufacture in bulk a basic class of any controlled
substance.
(36 FR 7812, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1311.53 Burden of proof.
(a) At any hearing on the granting or denial of an application to be
registered to import or export any controlled substance listed in
Schedule I or II, the applicant shall have the burden of proving that
the requirements for such registration pursuant to sections 1008 (a) and
(d) of the Act (21 U.S.C. 958 (a) and (d)) are satisfied. Any other
person participating in the hearing pursuant to 1311.42 shall have the
burden of proving any propositions of fact or law asserted by him in the
hearings.
(b) At any other hearing for the denial of an application for
registration, the Administration shall have the burden of proving that
the requirements for such registration pursuant to sections 1008 (c) and
(d) of the Act (21 U.S.C. 958 (c) and (d)) are not satisfied.
(c) At any hearing for the revocation or suspension of a
registration, the Administration shall have the burden of proving that
the requirements for such revocation or suspension pursuant to section
1008(d) of the Act (21 U.S.C. 958(d)) are satisfied.
(52 FR 17289, May 7, 1987)
21 CFR 1311.53 Modification, Transfer, and Termination of Registration
21 CFR 1311.61 Modification in registration.
Any registrant may apply to modify his registration to authorize the
handling of additional controlled substances or to change his name or
address, by submitting a letter of request to the Registration Unit,
Drug Enforcement Administration, Department of Justice, Post Office Box
28083, Central Station, Washington, DC 20005. The letter shall contain
the registrant's name, address, and registration number as printed on
the Certificate of Registration, and the substances (including the
schedule and the Administration Controlled Substances Code Number, as
set forth in part 1308 of this chapter, for those substances) to be
added to his registration or the new name and address, and shall be
signed in accordance with 1311.32(f). No fee is required for the
modification. The request for modification shall be handled in the same
manner as an application for registration. If the modification in
registration is approved, the Administrator shall issue a new
Certificate of Registration (DEA Form 223) to the registrant, who shall
maintain it with the old Certificate of Registration until expiration.
(52 FR 17289, May 7, 1987)
21 CFR 1311.62 Termination of registration.
The registration of any person shall terminate if and when such
person dies, ceases legal existence or discontinues business or
professional practice. Any registrant who ceases legal existence or
discontinues business or professional practice shall notify the
Administrator promptly of such fact.
(37 FR 15923, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973)
21 CFR 1311.63 Transfer of registration.
No registration or any authority conferred thereby shall be assigned
or otherwise transferred except upon such conditions as the
Administrator may specifically designate and then only pursuant to his
written consent.
(36 FR 18735, Sept. 21, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973)
21 CFR 1311.63 PART 1312 -- IMPORTATION AND EXPORTATION OF CONTROLLED
SUBSTANCES
Sec.
1312.01 Scope of part 1312.
1312.02 Definitions.
1312.11 Requirement of authorization to import.
1312.12 Application for import permit.
1312.13 Issuance of import permit.
1312.14 Distribution of copies of import permit.
1312.15 Shipments in greater or less amount than authorized.
1312.16 Cancellation of permit; expiration date.
1312.17 Special report from importers.
1312.18 Contents of import declaration.
1312.19 Distribution of import declaration.
1312.21 Requirement of authorization to export.
1312.22 Application for export permit.
1312.23 Issuance of export permit.
1312.24 Distribution of copies of export permit.
1312.25 Expiration date.
1312.26 Records required of exporter.
1312.27 Contents of special controlled substances invoice.
1312.28 Distribution of special controlled substances invoice.
1312.29 Domestic release prohibited.
1312.30 Schedule III, IV, and V non-narcotic controlled substances
requiring an import and export permit.
1312.31 Schedule I: Application for prior written approval.
1312.32 Schedules II, III, IV: Advance Notice.
1312.41 Hearings generally.
1312.42 Purpose of hearing.
1312.43 Waiver or modification of rules.
1312.44 Request for hearing or appearance; waiver.
1312.45 Burden of proof.
1312.46 Time and place of hearing.
1312.47 Final order.
Authority: 21 U.S.C. 952, 953, 954, 957, 958.
Source: 36 FR 7815, Apr. 24, 1971, unless otherwise noted.
Redesignated at 38 FR 26609, Sept. 24, 1973.
21 CFR 1312.01 Scope of part 1312.
Procedures governing the importation, exportation, transshipment and
intransit shipment of controlled substances pursuant to section 1002,
1003, and 1004 of the Act (21 U.S.C. 952, 953, and 954) are governed
generally by those sections and specifically by the sections of this
part.
21 CFR 1312.02 Definitions.
As used in this part, the following terms shall have the meanings
specified:
(a) The term Act means the Controlled Substances Import and Export
Act (84 Stat. 1285; 21 U.S.C. 951).
(b) Any term not defined in this section shall have the definition
set forth in sections 1001 and 102 of the Act (21 U.S.C. 951 and 802)
and 1311.02 of this chapter.
(36 FR 7815, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 51 FR 5320, Feb. 13, 1986)
21 CFR 1312.02 Importation of Controlled Substances
21 CFR 1312.11 Requirement of authorization to import.
(a) No person shall import or cause to be imported any controlled
substance listed in Schedule I or II or any narcotic controlled
substance listed in Schedule III, IV or V or any non-narcotic controlled
substance in Schedule III which the Administrator has specifically
designated by regulation in 1312.30 of this part or any non-narcotic
controlled substance in Schedule IV or V which is also listed in
Schedule I or II of the Convention on Psychotropic Substances unless and
until such person is properly registered under the Act (or exempt from
registration) and the Administrator has issued him a permit to do so
pursuant to 1312.13 of this part.
(b) No person shall import or cause to be imported any non-narcotic
controlled substance listed in Schedule III, IV or V, excluding those
described in paragraph (a) of this section, unless and until such person
is properly registered under the Act (or exempt from registration) and
has filed an import declaration to do so with the Administrator,
pursuant to 1312.18 of this part.
(c) When an import permit or declaration is required, a separate
permit or declaration must be obtained for each consignment of
controlled substances to be imported.
(36 FR 7815, Apr. 24, 1971, as amended at 37 FR 15923, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 52 FR 17289,
May 7, 1987)
21 CFR 1312.12 Application for import permit.
(a) An application for a permit to import controlled substances shall
be made on DEA Form 357. DEA Form 357 may be obtained from, and shall
be filed with, the Drug Enforcement Administration, Drug Control
Section, 1405 I Street, NW., Washington, DC 20537. Each application
shall show the date of execution; the registration number of the
importer; a detailed description of each controlled substance to be
imported including the drug name, dosage form, National Drug Code (NDC)
number, the Administration Controlled Substance Code Number as set forth
in part 1308 of this chapter, the number and size of packages or
containers, the name and quantity of the controlled substance contained
in any finished dosage units, and the net quantity of any controlled
substance (expressed in anhydrous acid, base or alkaloid) given in
kilograms or parts thereof. The application shall also include the
following:
(1) The name, address, and business of the consignor, if known at the
time application is submitted, but if unknown at that time, the fact
should be indicated and the name and address afterwards furnished to the
Administrator as soon as ascertained by the importer;
(2) The foreign port of exportation (i.e., the place where the
article will begin its journey of exportation to the United States);
(3) The port of entry into the United States;
(4) The latest date said shipment will leave said foreign port;
(5) The stock on hand of the controlled substance desired to be
imported;
(6) The name of the importing carrier or vessel (if known, or if
unknown it should be stated whether shipment will be made by express,
freight, or otherwise, imports of controlled substances in Schedules I
or II and narcotic drugs in Schedules III, IV, or V by mail being
prohibited);
(7) The total tentative allotment to the importer of such controlled
substance for the current calendar year;
(8) The total number of kilograms of said allotment for which permits
have previously been issued and the total quantity of controlled
substance actually imported during the current year to date.
(b) If desired, alternative foreign ports of exportation within the
same country may be indicated upon the application (e.g., (1) Calcutta,
(2) Bombay). If a formal permit is issued pursuant to such application,
it will bear the names of the two ports in the order given in the
application and will authorize shipment from either port. Alternate
ports in different countries will not be authorized in the same permit.
(36 FR 7815, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 39 FR 43218,
Dec. 11, 1974; 45 FR 74715, Nov. 12, 1980; 51 FR 5319 and 5320, Feb.
13, 1986; 52 FR 17289, May 7, 1987)
21 CFR 1312.13 Issuance of import permit.
(a) The Administrator may authorize importation of any controlled
substance listed in Schedule I or II or any narcotic drug listed in
Schedule III, IV, or V if he finds:
(1) That the substance is crude opium, poppy straw, concentrate of
poppy straw, or coca leaves, in such quantity as the Administrator finds
necessary to provide for medical, scientific, or other legitimate
purposes;
(2) That the substance is necessary to provide for medical and
scientific needs or other legitimate needs of the United States during
an emergency where domestic supplies of such substance or drug are found
to be inadequate, or in any case in which the Administrator finds that
competition among domestic manufacturers of the controlled substance is
inadequate and will not be rendered adequate by the registration of
additional manufacturers under section 303 of the Controlled Substances
Act (21 U.S.C. 823); or
(3) That the domestic supply of any controlled substance is
inadequate for scientific studies, and that the importation of that
substance for scientific purposes is only for delivery to officials of
the United Nations, of the United States, or of any State, or to any
person registered or exempted from registration under sections 1007 and
1008 of the Act (21 U.S.C. 957 and 958).
(4) That the importation of the controlled substance is for
ballistics or other analytical or scientific purposes, and that the
importation of that substance is only for delivery to officials of the
United Nations, of the United States, or of any State, or to any person
registered or exempted from registration under sections 1007 and 1008 of
the Act (21 U.S.C. 957 and 958).
(b) The Administrator may require that such non-narcotic controlled
substances in Schedule III as he shall designate by regulation in
1312.30 of this part be imported only pursuant to the issuance of an
import permit. The Administrator may authorize the importation of such
substances if he finds that the substance is being imported for medical,
scientific or other legitimate uses.
(c) If a non-narcotic substance listed in Schedule IV or V is also
listed in Schedule I or II of the Convention on Psychotropic Substances,
1971, it shall be imported only pursuant to the issuance of an import
permit. The Administrator may authorize the importation of such
substances if it is found that the substance is being imported for
medical, scientific or other legitimate uses.
(d) The Administrator may require an applicant to submit such
documents or written statements of fact relevant to the application as
he deems necessary to determine whether the application should be
granted. The failure of the applicant to provide such documents or
statements within a reasonable time after being requested to do so shall
be deemed to be a waiver by the applicant of an opportunity to present
such documents or facts for consideration by the Administrator in
granting or denying the application.
(e) Each import permit shall be issued in sextuplet and serially
numbered, with all six copies bearing the same serial number and being
designated ''original'' (Copy 1), ''duplicate'' (Copy 2), etc.,
respectively. All copies of import permits shall bear the signature of
the Director or his delegate, and facsimiles of signatures shall not be
used. No permit shall be altered or changed by any person after being
signed by the Administrator or his delegate and any change or alteration
upon the face of any permit after it shall have been signed by the
Administrator or his delegate shall render it void and of no effect.
Permits are not transferable. Each copy of the permit shall have
printed or stamped thereon the disposition to be made thereof. Each
permit shall be dated and shall certify that the importer named therein
is thereby permitted as a registrant under the Act, to import, through
the port named, one shipment of not to exceed the specified quantity of
the named controlled substances, shipment to be made before a specified
date. Not more than one shipment shall be made on a single import
permit. The permit shall state that the Administrator is satisfied that
the consignment proposed to be imported is required for legitimate
purposes.
(f) Notwithstanding paragraphs (a)(1) and (a)(2) of this section, the
Administrator shall permit, pursuant to 21 U.S.C. 952(a)(1) or
(a)(2)(A), the importation of approved narcotic raw material (opium,
poppy straw and concentrate of poppy straw) having as its source:
(1) Turkey,
(2) India,
(3) Yugoslavia,
(4) France,
(5) Poland,
(6) Hungary, and
(7) Australia.
(g) At least eighty (80) percent of the narcotic raw material
imported into the United States shall have as its original source Turkey
and India. Except under conditions of insufficient supplies of narcotic
raw materials, not more than twenty (20) percent of the narcotic raw
material imported into the United States annually shall have as its
source Yugoslavia, France, Poland, Hungary and Australia.
(36 FR 23624, Dec. 11, 1971, as amended at 37 FR 15923, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 46 FR 41776,
Aug. 18, 1981; 52 FR 17289, May 7, 1987)
21 CFR 1312.14 Distribution of copies of import permit.
Copies of the import permit shall be distributed and serve purposes
as follows:
(a) The original and quintuplet copies (Copy 1 and Copy 5) shall be
transmitted by the Administration to the importer, who shall retain the
quintuplet copy (Copy 5) on file as his record of authority for the
importation, and shall transmit the original copy (Copy 1) to the
foreign exporter. The foreign exporter will submit the original copy
(Copy 1) to the proper governmental authority in the exporting country,
if required, as a prerequisite to the issuance of an export
authorization. This copy of the permit will accompany the shipment.
Upon arrival of the imported merchandise, the District Director of the
U.S. Customs Service at the port of entry will, after appraising the
merchandise, forward the original copy (Copy 1) to the Drug Control
Section with a report on the reverse side of such copy, showing the name
of the port of importation, date prepared, name and net quantity of each
substance, and report of analysis of the merchandise entered.
(b) The duplicate copy (Copy 2) shall be forwarded by the
Administration to the proper governmental authorities of the exporting
country.
(c) The quadruplet copy (Copy 4) shall be forwarded by the
Administration to the District Director of the U.S. Customs Service at
the U.S. port of entry, which shall be the customs port of destination
in the case of shipments transported under immediate transportation
entries, in order that the District Director may compare it with the
original copy (Copy 1) and the bill of lading upon arrival of the
merchandise. If a discrepancy is noted between corresponding items upon
different copies of a permit bearing the same serial number when
compared by the District Director, he shall refuse to permit entry of
the merchandise until the facts are communicated to the Administration
and further instructions are received.
(d) The triplicate copy (Copy 3) and sextuplet copy (Copy 6) shall be
retained by the Administration.
(36 FR 7815, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973, and further amended at 45
FR 74715, Nov. 12, 1980; 51 FR 5319, Feb. 13, 1986; 53 FR 48244, Nov.
30, 1988)
21 CFR 1312.15 Shipments in greater or less amount than authorized.
(a) If the shipment made under an import permit is greater than the
maximum amount authorized to be imported under the permit, as determined
at the weighing by the District Director of the U.S. Customs Service,
such difference shall be seized subject to forfeiture, pending an
explanation; except that shipments of substances exceeding the maximum
authorized amount by less than 1 percent may be released to the importer
upon the filing by him of an amended import permit. If the substance is
included in Schedule I, it will be summarily forfeited to the
Government.
(b) If the shipment made under the permit is less than the maximum
amount authorized to be imported under the permit as determined at the
weighing by the District Director of the U.S. Customs Service, such
difference, when ascertained by the Administration, shall be recredited
to the tentative allotment against which the quantity covered by the
permit was charged, and the balance of any such tentative allotment with
any such recredits will remain available to the importer to whom made
(unless previously revoked in whole or in part), for importations
pursuant to any permit or permits as are requested and issued during the
remainder of the calendar year to which the allotment is applicable. No
permit shall be issued for importation of a quantity of controlled
substances as a charge against the tentative allotment for a given
calendar year, after the close of such calendar year, unless the
Director of the Administration decides to make an exception for good
cause shown.
(36 FR 7815, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 46 FR 28841, May 29, 1981)
21 CFR 1312.16 Cancellation of permit; expiration date.
(a) A permit may be canceled after being issued, at the request of
the importer, provided no shipment has been made thereunder. In the
event that a permit is lost, the Administrator may, upon the production
by the importer of satisfactory proof, by affidavit or otherwise, issue
a duplicate permit. Nothing in this part shall affect the right, hereby
reserved by the Administrator, to cancel a permit at any time for proper
cause.
(b) An import permit shall not be valid after the date specified
therein, and in no event shall the date be subsequent to 6 months after
the date the permit is issued. Any unused import permit shall be
returned for cancellation by the registrant to the Drug Enforcement
Administration, Drug Control Section, 1405 Eye Street, N.W., Washington,
DC 20537.
(36 FR 7815, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 45 FR 74715, Nov. 12, 1980; 51 FR 5319, Feb. 13,
1986; 53 FR 48244, Nov. 30, 1988)
21 CFR 1312.17 Special report from importers.
Whenever requested by the Administrator, importers shall render to
him not later than 30 days after receipt of the request therefor a
statement under oath of the stocks of controlled substances on hand as
of the date specified by the Administrator in his request, and, if
desired by the Administrator, an estimate of the probable requirements
for legitimate uses of the importer for any subsequent period that may
be designated by the Administrator. In lieu of any special statement
that may be considered necessary, the Administrator may accept the
figures given upon the reports subsequent by said importer under part
304 of this chapter.
21 CFR 1312.18 Contents of import declaration.
(a) Any non-narcotic controlled substance listed in Schedule III, IV,
or V, not subject to the requirement of an import permit pursuant to
1312.13 (b) or (c) of this chapter, may be imported if that substance is
needed for medical, scientific or other legitimate uses in the United
States, and will be imported pursuant to a controlled substances import
declaration.
(b) Any person registered or authorized to import and desiring to
import any non-narcotic controlled substance in Schedules III, IV, or V
which is not subject to the requirement of an import permit as described
in paragraph (a) of this section, must furnish a controlled substances
import declaration on DEA Form 236 to the Drug Enforcement
Administration, Drug Control Section, 1405 Eye Street, NW., Washington,
DC 20537, not later than 15 calendar days prior to the proposed date of
importation and distribute four copies of same as hereinafter directed
in 1312.19.
(c) DEA (or BND) Form 236 must be executed in quintuplicate and will
include the following information:
(1) The name, address, and registration number of the importer; and
the name and address and registration number of the import broker, if
any; and
(2) A complete description of the controlled substances to be
imported, including drug name, dosage form, National Drug Code (NDC)
number, the Administration Controlled Substances Code Number as set
forth in part 1308 of this chapter, the number and size of packages or
containers, the name and quantity of the controlled substance contained
in any finished dosage units, and the net quantity of any controlled
substance (expressed in anhydrous acid, base, or alkaloid) given in
kilograms or parts thereof; and
(3) The proposed import date, the foreign port of exportation to the
United States, the port of entry, and the name, address, and
registration number of the recipient in the United States; and
(4) The name and address of the consignor in the foreign country of
exportation, and any registration or license numbers if the consignor is
required to have such numbers either by the country of exportation or
under U.S. law.
(d) Notwithstanding the time limitations included in paragraph (a) of
this section, an applicant may obtain a special waiver of these time
limitations in emergency or unusual instances, provided that a specific
confirmation is received from the Administrator or his delegate advising
the registrant to proceed pursuant to the special waiver.
(36 FR 7815, Apr. 24, 1971, as amended at 37 FR 15923, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 45 FR 74715,
Nov. 12, 1980; 51 FR 5319, Feb. 13, 1986; 52 FR 17290, May 7, 1987)
21 CFR 1312.19 Distribution of import declaration.
The required five copies of the controlled substances import
declaration will be distributed as follows:
(a) Copy 1, Copy 2, and Copy 3 shall be transmitted to the foreign
shipper. The foreign shipper will submit Copy 1 to the proper
governmental authority in the foreign country, if required as a
prerequisite to export authorization. Copy 1 will then accompany the
shipment to its destination, and shall be retained on file by the
importer. Copy 2 shall be detached and retained by the appropriate
customs official of the foreign country. Copy 3 shall be removed by the
District Director of the U.S. Customs Service at the port of entry, who
shall sign and date the certification of customs on Copy 3, noting any
changes from the entries made by the importer, and shall then forward
that copy to the Drug Control Section of the Administration.
(b) Copy 4 shall be forwarded, within the time limit required in
1312.18, directly to the Drug Enforcement Administration, Drug Control
Section, 1405 Eye Street, N.W., Washington, DC 20537.
(c) Copy 5 shall be retained by the importer on file as his record of
authority for the importation.
(36 FR 7815, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971;
37 FR 15923, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973, and further amended at 45 FR 74715, Nov. 12, 1980; 51 FR 5319,
Feb. 13, 1986; 53 FR 48244, Nov. 30, 1988)
21 CFR 1312.19 Exportation of Controlled Substances
21 CFR 1312.21 Requirement of authorization to export.
(a) No person shall in any manner export or cause to be exported from
the United States any controlled substance listed in Schedule I or II,
or any narcotic substance listed in Schedule III or IV, or any
non-narcotic substance in Schedule III which the Administrator has
specifically designated by regulation in 1312.30 of this part or any
non-narcotic substance in Schedule IV or V which is also listed in
Schedule I or II of the Convention on Psychotropic Substances unless and
until such person is properly registered under the Act (or exempted from
registration) and the Administrator has issued a permit pursuant to
1312.23 of this part.
(b) No person shall in any manner export or cause to be exported from
the United States any non-narcotic controlled substance listed in
Schedule III, IV, or V, excluding those described in paragraph (a) of
this section, or any narcotic controlled substance listed in Schedule V,
unless and until such person is properly registered under the Act (or
exempted from registration) and has furnished a special controlled
substance export invoice as provided by section 1003 of the Act (21
U.S.C. 953(e)) to the Administrator pursuant to 1312.28 of this part.
(c) A separate authorization request is obtained for each consignment
of such controlled substances to be exported.
(36 FR 7815, Apr. 24, 1971, as amended at 37 FR 15923, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 52 FR 17290,
May 7, 1987)
21 CFR 1312.22 Application for export permit.
(a) An application for a permit to export controlled substances shall
be made on DEA Form 161 which may be obtained from, and shall be filed
with, the Drug Enforcement Administration, Drug Control Section, 1405 I
Street, NW., Washington, DC 20537. Each application shall show the
exporter's name, address, and registration number; a detailed
description of each controlled substance desired to be exported
including the drug name, dosage form, National Drug Code (NDC) number,
the Administration Controlled Substance Code Number as set forth in part
1308 of this chapter, the number and size of packages or containers, the
name and quantity of the controlled substance contained in any finished
dosage units, and the quantity of any controlled substance (expressed in
anhydrous acid, base, or alkaloid) given in kilograms or parts thereof.
The application shall include the name, address, and business of the
consignee, foreign port of entry, the port of exportation, the
approximate date of exportation, the name of the exporting carrier or
vessel (if known, or if unknown it should be stated whether shipment
will be made by express, freight, or otherwise, exports of controlled
substances by mail being prohibited), the date and number, if any, of
the supporting foreign import license or permit accompanying the
application, and the authority by whom such foreign license or permit
was issued. The application shall also contain an affidavit that the
packages are labeled in conformance with obligations of the United
States under international treaties, conventions, or protocols in effect
on May 1, 1971, and that, to the best of affiant's knowledge and belief,
the controlled substances therein are to be applied exclusively to
medical or scientific uses within the country to which exported, will
not be reexported therefrom and that there is an actual need for the
controlled substance for medical or scientific uses within such country.
In the case of exportation of crude cocaine, the affidavit may state
that to the best of knowledge and belief, the controlled substances will
be processed within the country to which exported, either for medical or
scientific use within that country or for reexportation in accordance
with the laws of that country to another for medical or scientific use
within that country. The application shall be signed and dated by the
exporter and shall contain the address from which the substances will be
shipped for exportation.
(b) There shall also be submitted with the application any import
license or permit (and a translation thereof if in a foreign language)
or a certified copy of any such license or permit issued by competent
authorities in the country of destination, or other documentary evidence
deemed adequate by the Administrator, showing that the merchandise is
consigned to an authorized permittee, that it is to be applied
exclusively to medical or scientific use within the country of
destination, that it will not be reexported from such country, and that
there is an actual need for the controlled substance for medical or
scientific use within such country. (In the case of exportation of bulk
coca leaf alkaloid, the submitted evidence need only show the material
outlined in paragraph (a) of this section for such exportations.)
(36 FR 7815, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 52 FR 17290, May 7, 1987)
21 CFR 1312.23 Issuance of export permit.
(a) The Administrator may authorize exportation of any controlled
substance listed in Schedule I or II or any narcotic controlled
substance listed in Schedule III or IV if he finds that such exportation
is permitted by subsections 1003(a), (b), (c), or (d) of the Act (21
U.S.C. 953 (a), (b), (c), or (d).
(b) The Administrator may require that such non-narcotic controlled
substances in Schedule III as shall be designated by regulation in
1312.30 of this part be exported only pursuant to the issuance of an
export permit. The Administrator may authorize the exportation of such
substances if he finds that such exportation is permitted by section
1003(e) of the Act (21 U.S.C. 953(e)).
(c) If a non-narcotic substance listed in Schedule IV or V is also
listed in Schedule I or II of the Convention on Psychotropic Substances,
it shall be exported only pursuant to the issuance of an export permit.
The Administrator may authorize the exportation of such substances if he
finds that such exportation is permitted by section 1003(e) of the Act
(21 U.S.C. 953(e)).
(d) The Administrator may require an applicant to submit such
documents or written statements of fact relevant to the application as
he deems necessary to determine whether the application should be
granted. The failure of the applicant to provide such documents or
statements within a reasonable time after being requested to do so shall
be deemed to be a waiver by the applicant of an opportunity to present
such documents or facts for consideration by the Administrator in
granting or denying the application.
(e) Each export permit shall be issued in septuplet and serially
numbered, with all seven copies bearing the same serial number and being
designated ''original'' (Copy 1), ''duplicate'' (Copy 2), etc.,
respectively. Each export permit shall be predicated upon an import
certificate or other documentary evidence. Export permits are not
transferable.
(f) No export permit shall be issued for the exportation of any
narcotic drug to any country when the Administrator has information to
show that the estimates submitted with respect to that country for the
current period, under the Narcotic Limitation Convention of 1931, or the
Single Convention on Narcotic Drugs of 1961, have been, or, considering
the quantity proposed to be imported, will be exceeded. If it shall
appear through subsequent advice received from the International
Narcotic Control Board of the United Nations that the estimates of the
country of destination have been adjusted to permit further importation
of the narcotic drug, an export permit may then be issued if otherwise
permissible.
(36 FR 23625, Dec. 11, 1971, as amended at 37 FR 15923, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 52 FR 17290,
May 7, 1987)
21 CFR 1312.24 Distribution of copies of export permit.
Copies of the export permit shall be distributed and serve purposes
as follows:
(a) The original, duplicate, and triplicate copies (Copy 1, Copy 2,
and Copy 3) shall be transmitted by the Bureau to the exporter who will
retain the triplicate copy (Copy 3) as his record of authority for the
exportation. The exporter shall present to the District Director of the
U.S. Customs Service at the port of export and at the time of shipment,
the original and duplicate copies (Copy 1 and Copy 2). After endorsing
the port of export on the reverse side of the original and duplicate
copies (Copy 1 and Copy 2) the District Director shall forward the
endorsed original copy (Copy 1) with the shipment, and return the
endorsed duplicate copy (Copy 2) to the Drug Enforcement Administration,
Drug Control Section, 1405 Eye Street, N.W., Washington, DC 20537.
(b) The quadruplet copy (Copy 4) shall be forwarded by the
Administrator to the District Director of the U.S. Customs Service at
the port of export for comparison with the original copy (Copy 1) and
for retention for the customs record.
(c) The quintuplet copy (Copy 5) shall be forwarded by the
Administration to the officer in the country of destination who issued
the import certificate, or other documentary evidence upon which the
export permit is founded.
(d) The sextuplet and septuplet copies (Copy 6 and Copy 7) shall be
retained by the Administration.
(36 FR 7815, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 45 FR 74715,
Nov. 12, 1980; 51 FR 5319, Feb. 13, 1986; 53 FR 48244, Nov. 30, 1988)
21 CFR 1312.25 Expiration date.
An export permit shall not be valid after the date specified therein,
which date shall conform to the expiration date specified in the
supporting import certificate or other documentary evidence upon which
the export permit is founded, but in no event shall the date be
subsequent to 6 months after the date the permit is issued. Any unused
export permit shall be returned by the permittee to the Drug Control
Section for cancellation.
(36 FR 7815, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 45 FR 74715, Nov. 12, 1980; 51 FR 5319, Feb. 13,
1986; 53 FR 48244, Nov. 30, 1988)
21 CFR 1312.26 Records required of exporter.
The exporter shall keep a record of any serial numbers that might
appear on packages of narcotic drugs in quantities of one ounce or more
in such a manner as will identify the foreign consignee, along with Copy
3 of the export permit.
21 CFR 1312.27 Contents of special controlled substances invoice.
(a) A person registered or authorized to export any non-narcotic
controlled substance listed in Schedule III, IV, or V, which is not
subject to the requirement of an export permit pursuant to 1312.23 (b)
or (c), or any person registered or authorized to export any controlled
substance in Schedule V, must furnish a special controlled substances
export invoice on DEA Form 236 to the Drug Enforcement Administration,
Drug Control Section, 1405 I Street, NW., Washington, DC 20537, not less
than 15 calendar days prior to the proposed date of exportation, and
distribute four copies of same as hereinafter directed in 1312.28 of
this part.
(b) This invoice must be executed by the exporter in quintuplicate
and include the following information.
(1) The name, address, and registration number, if any, of the
exporter; and the name, address and registration number of the exporter
broker, if any; and
(2) A complete description of the controlled substances to be
exported including the drug name, dosage form, National Drug Code (NDC)
number, the Administration Controlled Substances Code Number as set
forth in part 1308 of this chapter, the number and size of packages or
containers, the name and quantity of the controlled substance contained
in finished dosage units, and the net quantity of any controlled
substance (expressed in anhydrous acid, base, or alkaloid) given in
kilograms or parts thereof; and
(3) The proposed export date, the port of exportation, the foreign
port of entry, the carriers and shippers involved, method of shipment,
the name of the vessel if applicable, and the name, address, and
registration number, if any, of any forwarding agent utilized; and
(4) The name and address of the consignee in the country of
destination, and any registration or license number if the consignee is
required to have such numbers either by the country of destination or
under United States law. In addition, documentation must be provided to
show that:
(i) The consignee is authorized under the laws and regulations of the
country of destination to receive the controlled substances, and that
(ii) The substance is being imported for consumption within the
importing country to satisfy medical, scientific or other legitimate
purposes, and that
(5) The reexport of non-narcotic controlled substances in Schedules
III and IV, and controlled substances in Schedule V is not permitted
under the authority of 21 U.S.C. 953(e), except as provided below:
(i) Bulk substances will not be reexported in the same form as
exported from the United States, i.e, the material must undergo further
manufacturing process. This further manufactured material may only be
reexported to a country of ultimate consumption.
(ii) Finished dosage units, if reexported, will be in a commercial
package, properly sealed and labeled for legitimate medical use in the
country of destination.
(iii) Any reexportation be made known to DEA at the time the inital
DEA Form 236, Controlled Substances Import/Export Declaration is
completed, by checking the box marked ''other'' on the certification.
The following information will be furnished in the remarks section:
(A) Indicate ''for reexport''.
(B) Indicate if reexport is bulk or finished dosage units.
(C) Indicate product name, dosage strength, commercial package size,
and quantity.
(D) Indicate name of consignee, complete address, and expected
shipment date, as well as, the name and address of the ultimate
consignee in the country to where the substances will be reexported.
(E) A statement that the consignee in the country of ultimate
destination is authorized under the laws and regulations of the country
of ultimate destination to receive the controlled substances.
(iv) Shipments which have been exported from the United States and
are refused by the consignee in the country of destination, or are
otherwise unacceptable or undeliverable, may be returned to the
registered exporter in the United States upon authorization of the Drug
Enforcement Administration. In this circumstance, the exporter in the
United States shall file a written request for reexport, along with a
completed DEA Form 236, Import Declaration with the Drug Enforcement
Administration, Drug Control Section, 1405 I Street, NW., Washington, DC
20537. A brief summary of the facts that warrant the return of the
substance to the United States along with an authorization from the
country of export will be included with the request. DEA will evaluate
the request after considering all the facts as well as the exporter's
registration status with DEA. The substance may be returned to the
United States only after affirmative authorization is issued in writing
by DEA.
(c) Notwithstanding the time limitations included in paragraph (a) of
this section, a registrant may obtain a special waiver of these time
limitations in emergency or unusual instances; provided that a specific
confirmation is received from the Administrator or his delegate advising
the registrant to proceed pursuant to the special waiver.
(36 FR 7815, Apr. 24, 1971, as amended at 37 FR 15923, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 45 FR 74715,
Nov. 12, 1980; 51 FR 5319, Feb. 13, 1986; 52 FR 17290, May 7, 1987)
21 CFR 1312.28 Distribution of special controlled substances invoice.
The required five copies of the special controlled substances export
invoice, DEA (or BND) Form 236, will be distributed as follows:
(a) Copy 1 shall accompany the shipment and remain with the shipment
to its destination.
(b) Copy 2 shall accompany the shipment and will be detached and
retained by appropriate customs officials at the foreign country of
destination.
(c) Copy 3 shall accompany the shipment and will be detached by the
District Director of the U.S. Customs Service at the port of
exportation, who shall sign and date the certification of customs on
such Copy 3, noting any changes from the entries made by the exporter,
and shall then promptly forward Copy 3 to the Drug Control Section of
the Administration.
(d) Copy 4 shall be forwarded, within the time limit required in
1312.27 of this part, directly to the Drug Enforcement Administration,
Drug Control Section, 1405 I Street, NW., Washington, DC 20537. The
documentation required by 1327.27(b)(4) of this part must be attached
to this copy.
(e) Copy 5 shall be retained by the exporter on file as his record of
authority for the exportation.
(36 FR 7815, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 45 FR 74715,
Nov. 12, 1980; 51 FR 5319, Feb. 13, 1986; 52 FR 17291, May 7, 1987;
53 FR 48244, Nov. 30, 1988)
21 CFR 1312.29 Domestic release prohibited.
An exporter or a forwarding agent acting for an exporter must either
deliver the controlled substances to the port or border, or deliver the
controlled substances to a bonded carrier approved by the consignor for
delivery to the port or border, and may not, under any other
circumstances, release a shipment of controlled substances to anyone,
including the foreign consignee or his agent, within the United States.
21 CFR 1312.30 Schedule III, IV, and V non-narcotic controlled
substances requiring an import and export permit.
The following Schedule III, IV, and V non-narcotic controlled
substances have been specifically designated by the Administrator of the
Drug Enforcement Administration as requiring import and export permits
pursuant to sections 1002(b)(2) and 1003(e)(3) of the Act (21 U.S.C.
952(b)(2) and 953(e)(3)):
(a) (Reserved)
(52 FR 17291, May 7, 1987)
21 CFR 1312.30 Transshipment and In-Transit Shipment of Controlled Substances
21 CFR 1312.31 Schedule I: Application for prior written approval.
(a) A controlled substance listed in schedule I may be imported into
the United States for transshipment, or may be transferred or
transshipped within the United States for immediate exportation,
provided that:
(1) The controlled substance is necessary for scientific, medical, or
other legitimate purposes in the country of destination, and
(2) A transshipment permit has been issued by the Administrator.
(b) An application for a transshipment permit must be submitted to
the Drug Enforcement Administration, Drug Control Section, 1405 Eye
Street, N.W., Washington, DC 20537, at least 30 days, or in the case of
an emergency as soon as practicable, prior to the expected date of
importation, transfer or transshipment. Each application shall contain
the following:
(1) The date of execution;
(2) The identification and description of the controlled substance;
(3) The net quantity thereof;
(4) The number and size of the controlled substance containers;
(5) The name, address, and business of the foreign exporter;
(6) The foreign port of exportation;
(7) The approximate date of exportation;
(8) The identification of the exporting carrier;
(9) The name, address and business of the importer, transferor, or
transshipper;
(10) The registration number, if any, of the importer, transferor or
transshipper;
(11) The U.S. port of entry;
(12) The approximate date of entry;
(13) The name, address and business of the consignee at the foreign
port of entry;
(14) The shipping route from the U.S. port of exportation to the
foreign port of entry;
(15) The approximate date of receipt by the consignee at the foreign
port of entry; and
(16) The signature of the importer, transferor or transshipper, or
his agent accompanied by the agent's title.
(c) An application shall be accompanied by an export license, permit,
or a certified copy of the export license, permit, or other
authorization, issued by a competent authority of the country of origin
(or other documentary evidence deemed adequate by the Administrator).
(d) An application shall be accompanied by an import license or
permit or a certified copy of such license or permit issued by a
competent authority of the country of destination (or other documentary
evidence deemed adequate by the Administrator), indicating that the
controlled substance:
(1) Is to be applied exclusively to scientific, medical or other
legitimate uses within the country of destination;
(2) Will not be exported from such country; and
(3) Is needed therein because there is an actual shortage thereof and
a demand therefor for scientific, medical or other legitimate uses
within such country.
(e) Verification by an American consular officer of the signatures on
a foreign import license or permit shall be required, if such license or
permit does not bear the seal of the authority signing them.
(f) The Administrator may require an applicant to submit such
documents or written statements of fact relevant to the application as
he deems necessary to determine whether the application should be
granted. The failure of the applicant to provide such documents or
statements within a reasonable time after being requested to do so shall
be deemed to be a waiver by the applicant of an opportunity to present
such documents or facts for consideration by the Administrator in
granting or denying the application.
(g) The Administrator shall, within 21 days from the date of receipt
of the application, either grant or deny the application. The applicant
shall be accorded an opportunity to amend the application, with the
Administrator either granting or denying the amended application within
7 days of its receipt. If the Administrator does not grant or deny the
application within 21 days of its receipt, or in the case of an amended
application, within 7 days of its receipt, the application shall be
deemed approved and the applicant may proceed.
(36 FR 7815, Apr. 24, 1971, as amended at 37 FR 15923, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973, and further amended at 45
FR 74715, Nov. 12, 1980; 51 FR 5319, Feb. 13, 1986; 53 FR 48244, Nov.
30, 1988)
21 CFR 1312.32 Schedules II, III, IV: Advance Notice.
(a) A controlled substance listed in Schedules II, III, or IV may be
imported into the United States for transshipment, or may be transferred
or transshipped within the United States for immediate exportation,
provided that written notice is submitted to the Drug Enforcement
Administration, Drug Control Section, 1405 Eye Street, N.W., Washington,
DC 20537, at least 15 days prior to the expected date of importation,
transfer or transshipment.
(b) Each advance notice shall contain those items required by
1312.31 (b) and (c).
(36 FR 7815, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 45 FR 74715, Nov. 12, 1980; 51 FR 5319, Feb. 13,
1986; 53 FR 48244, Nov. 30, 1988)
21 CFR 1312.32 Hearings
21 CFR 1312.41 Hearings generally.
(a) In any case where the Administrator shall hold a hearing
regarding the denial of an application for an import, export or
transshipment permit, the procedures for such hearing shall be governed
generally by the adjudication procedures set forth in the Administrative
Procedure Act (5 U.S.C. 551-559) and specifically by sections 1002 and
1003 of the Act (21 U.S.C. 952 and 953), by 1312.42-1312.47, and by
the procedures for administrative hearings under the Act set forth in
1316.41- 1316.67 of this chapter.
(36 FR 23625, Dec. 11, 1971, as amended at 37 FR 15923, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1312.42 Purpose of hearing.
(a) If requested by a person applying for an import, export, or
transshipment permit, the Administrator shall hold a hearing for the
purpose of receiving factual evidence regarding the issues involved in
the issuance or denial of such permit to such person.
(b) Extensive argument should not be offered into evidence but rather
presented in opening or closing statements of counsel or in memoranda or
proposed findings of fact and conclusions of law.
(36 FR 23625, Dec. 11, 1971, as amended at 37 FR 15923, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1312.43 Waiver or modification of rules.
The Administrator of the presiding officer (with respect to matters
pending before him) may modify or waive any rule in this part by notice
in advance of the hearing, if he determines that no party in the hearing
will be unduly prejudiced and the ends of justice will thereby be
served. Such notice of modification or waiver shall be made a part of
the record of the hearing.
(36 FR 23625, Dec. 11, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973)
21 CFR 1312.44 Request for hearing or appearance; waiver.
(a) Any applicant entitled to a hearing pursuant to 1312.42 and who
desires a hearing on the denial of his application for an import,
export, or transshipment permit shall, within 30 days after the date of
receipt of the denial of his application, file with the Administrator a
written request for a hearing in the form prescribed in 1316.47 of this
chapter.
(b) Any applicant entitled to a hearing pursuant to 1312.42 may,
within the period permitted for filing a request for a hearing, file
with the Administrator a waiver of an opportunity for a hearing,
together with a written statement regarding his position on the matters
of fact and law involved in such hearing. Such statement, if
admissible, shall be made a part of the record and shall be considered
in light of the lack of opportunity for cross-examination in determining
the weight to be attached to matters of fact asserted therein.
(c) If any applicant entitled to a hearing pursuant to 1312.42 fails
to appear at the hearing, he shall be deemed to have waived his
opportunity for the hearing unless he shows good cause for such failure.
(d) If the applicant waives or is deemed to have waived this
opportunity for the hearing, the Administrator may cancel the hearing,
if scheduled, and issue his final order pursuant to 1312.47 without a
hearing.
(37 FR 15923, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973)
21 CFR 1312.45 Burden of proof.
At any hearing on the denial of an application for an import, export,
or transshipment permit, the Administrator shall have the burden of
proving that the requirements for such permit pursuant to sections 1002,
1003, and 1004 of the Act (21 U.S.C. 952, 953, and 954) are not
satisfied.
(37 FR 15924, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973)
21 CFR 1312.46 Time and place of hearing.
(a) If any applicant for an import, export, or transshipment permit
requests a hearing on the issuance or denial of his application, the
Administrator shall hold such hearing. Notice of the hearing shall be
given to the applicant of the time and place at least 30 days prior to
the hearing, unless the applicant waives such notice and requests the
hearing be held at an earlier time, in which case the Administrator
shall fix a date for such hearing as early as reasonably possible.
(b) The hearing will commence at the place and time designated in the
notice given pursuant to paragraph (a) of this section but thereafter it
may be moved to a different place and may be continued from day to day
or recessed to a later day without notice other than announcement
thereof by the presiding officer at the hearing.
(37 FR 15924, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973)
21 CFR 1312.47 Final order.
As soon as practicable after the presiding officer has certified the
record to the Administrator, the Administrator shall issue his order on
the issuance or denial of the application for and import, export, or
transshipment permit. The order shall include the findings of fact and
conclusions of law upon which the order is based. The Administrator
shall serve one copy of his order upon the applicant.
(37 FR 15924, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973)
21 CFR 1312.47 PART 1313 -- IMPORTATION AND EXPORTATION OF PRECURSORS
AND ESSENTIAL CHEMICALS
Sec.
1313.01 Scope.
1313.02 Definitions.
1313.12 Requirement of authorization to import.
1313.13 Contents of import declaration.
1313.14 Distribution of import declaration.
1313.15 Waiver of 15-day advance notice for chemical importers.
1313.21 Requirement of authorization to export.
1313.22 Contents of export declaration.
1313.23 Distribution of export declaration.
1313.24 Waiver of 15-day advance notice for chemical exporters.
1313.25 Foreign import restrictions.
1313.31 Advance notice of importation for transshipment or transfer.
1313.41 Suspension of shipments.
1313.51 Hearings generally.
1313.52 Purpose of hearing.
1313.53 Waiver of modification of rules.
1313.54 Request for hearing.
1313.55 Burden of proof.
1313.56 Time and place of hearing.
1313.57 Final order.
Authority: 21 U.S.C. 802, 830, 871(b), 971.
Source: 54 FR 31665, Aug. 1, 1989, unless otherwise noted.
21 CFR 1313.01 Scope.
Procedures governing the importation, exportation, transshipment and
in-transit shipment of precursors and essential chemicals pursuant to
section 1018 of the Act (21 U.S.C. 971) are governed generally by that
section and specifically by the sections of this part.
21 CFR 1313.02 Definitions.
(a) The term chemical export means transferring ownership or control,
or the sending or taking of threshold quantities of listed chemicals out
of the United States (whether or not such sending or taking out
constitutes an exportation within the meaning of the Customs and related
laws of the United States).
(b) The term chemical exporter is a regulated person who, as the
principal party in interest in the export transaction, has the power and
responsibility for determining and controlling the sending of the listed
chemical out of the United States.
(c) The term regulated person means any individual, corporation,
partnership, association, or other legal entity who manufactures,
distributes, imports, or exports a listed chemical, a tableting machine,
or an encapsulating machine.
(d) The term regulated transaction means:
(1) A distribution, receipt, sale, importation or exportation of a
threshold amount as determined by the Administrator which includes a
cumulative threshold amount for multiple transactions of a listed
chemical, except that such term does not include:
(i) A domestic lawful distribution in the usual course of business
between agents or employees of a single regulated person; in this
context, agents or employees means individuals under the direct
management and conttol of the regulated person;
(ii) A delivery of a listed chemical to or by a common or contract
carrier for carriage in the lawful and usual course of the business of
the common or contract carrier, or to or by a warehouseman for storage
in the lawful and usual course of the business of the warehouseman,
except that if the carriage or storage is in connection with the
distribution, importation, or exportation of a listed chemical to a
third person, this paragraph does not relieve a distributor, importer,
or exporter from compliance with this part of part 1310;
(iii) Any category of transaction specified by regulation of the
Administration as excluded from this definition as unnecessary for
enforcement of the Act;
(iv) Any transaction in a listed chemical that is contained in a drug
that may be marketed or distributed lawfully in the United States under
the Federal Food, Drug, and Cosmetic Act; or
(v) Any transaction in a chemical mixture.
(2) A distribution, importation, or exportation of a tableting
machine or encapsulating machine except that such term does not include
a domestic lawful distribution in the usual course of business between
agents and employees of a single regulated person; in this context,
agents or employees means individuals under the direct management and
control of the regulated person.
(e) The term chemical import means with respect to a listed chemical,
any bringing in or introduction of such listed chemical into either the
jurisdiction of the United States or into the Customs territory of the
United States (whether or not such bringing in or introduction
constitutes an importation within the meaning of the tariff laws of the
United States).
(f) The term chemical importer is a regulated person who, as the
principal party in interest in the import transaction, has the power and
responsibility for determining and controlling the bringing in or
introduction of the listed chemical into the United States.
(g) The term regular customer means a person with whom the regulated
person has an established business relationship for a specified listed
chemical or chemicals that has been reported to the Administration
subject to the criteria established in 1313.02(j).
(h) The term regular supplier means a supplier with whom the
regulated person has an established business relationship that has been
reported to the Administration subject to the criteria established in
1313.02(i).
(i) The term established business relationship with a regular
supplier means the regulated person has purchased a listed chemical from
a foreign supplier at least once within the past six months, or twice
within the past twelve months. The term also means that the regulated
person has provided the Administration with the following information in
accordance with the Waiver of 15-day advance notice requirements of
1313.15:
(1) The name, street address, telephone number, telex number and,
where available, the facsimile number of the chemical importer and of
each regular supplier; and
(2) The frequency and number of transactions occurring during the
preceding 12-month period.
(j) The term established business relationship with a foreign
customer means the regulated person has exported a listed chemical at
least once within the past six months, or twice within the past twelve
months to a foreign manufacturer, distributor, or end user of the
chemical that has an established business in the foreign country with a
fixed street address. A person or business which functions as a broker
or intermediary is not a customer within the meaning of this section.
The term also means that the regulated person has provided the
Administration with the following information in accordance with the
Waiver of 15-day advance notice requirements of 1313.24:
(1) The name and street address of the chemical exporter and of each
regular customer;
(2) The telephone number, telex number, contact person, and where
available, the facsimile number for the chemical exporter and for each
regular customer;
(3) The nature of the regular customer's business (i.e., importer,
exporter, distributor, manufacturer, etc.), and if known, the use to
which the listed chemical or chemicals will be applied;
(4) The duration of the business relationship;
(5) The frequency and number of transactions occurring during the
preceding 12-month period;
(6) The amounts and the listed chemical or chemicals involved in
regulated transactions between the chemical exporter and the regular
customer;
(7) The method of delivery (direct shipment or through a broker or
forwarding agent); and
(8) Other information that the chemical exporter considers relevant
for determining whether a customer is a regular customer.
(k) The term Customs territory of the United States means the several
states, the District of Columbia, and Puerto Rico.
(l) The term jurisdiction of the United States means the Customs
territory of the United States, the Virgin Islands, the Canal Zone,
Guam, American Samoa, and Palau.
(m) Any term not defined in this section shall have the definition
set forth in sections 102 and 1001 of the Act (21 U.S.C. 802 and 951),
and 1301.02 and 1310.01 of this chapter.
21 CFR 1313.02 Importation of Precursors and Essential Chemicals
21 CFR 1313.12 Requirement of authorization to import.
(a) Each regulated person who imports a listed chemical that meets or
exceeds the threshold quantities identified in 1310.04(f) of this
chapter shall notify the Administrator of the importation not later than
15 days before the transaction is to take place.
(b) A completed DEA Form 486 must be received at the following
address not later than 15 days prior to the importation:
Drug Enforcement Administration, P.O. Box 28346, Washington, DC
20038.
A copy of the completed DEA Form 486 may be transmitted directly to
the Drug Enforcement Administration, Drug Control Section, through
electronic facsimile media not later than 15 days prior to the
importation.
(c) The 15-day advance notification requirement for listed chemical
imports may be waived for any regulated person who has satisfied the
requirements for reporting to the Administration an established business
relationship with a foreign supplier. For such imports, the DEA Form
486 must be received by the Drug Enforcement Administration, Drug
Control Section on or before the date of importation through use of the
mailing address listed in 1313.12(b) or through use of electronic
facsimile media.
21 CFR 1313.13 Contents of import declaration.
(a) Any precursor or essential chemical listed in 1310.02 of this
chapter may be imported if that chemical is necessary for medical,
commercial, scientific, or other legitimate uses within the United
States. Chemical importations into the United States for immediate
transfer/transshipment outside the United States must comply with the
procedures set forth in 1313.31.
(b) Any regulated person who desires to import a threshold or greater
quantity of a listed chemical shall notify the Administration through
procedures set forth in 1313.12 and distribute three copies of DEA Form
486 as directed in 1313.14.
(c) The DEA Form 486 must be executed in triplicate and must include
the following information:
(1) The name, address, telephone number, telex number, and, where
available, the facsimile number of the chemical importer; the name,
address, telephone, telex, and where available, the facsmile number of
the broker or forwarding agent (if any); and
(2) The name and description of each listed chemical as it appears on
the label or container, the name of each chemical as it is designated in
1310.02 of this chapter, the size or weight of container, the number of
containers, the net weight of each listed chemical given in kilograms or
parts thereof; and the gross weight of the shipment given in kilograms
or parts thereof; and
(3) The proposed import date, the foreign port of exportation and the
first U.S. Customs Port of Entry; and
(4) The name, address, telephone number, telex number, and, where
available, the facsmile number of the consignor in the foreign country
of exportation.
21 CFR 1313.14 Distribution of import declaration.
The required three copies of the precursor and essential chemical
import declaration (DEA Form 486) will be distributed as follows:
(a) Copy 1 shall be retained on file by the regulated person as the
official record of import. Import declaration forms involving a listed
precursor chemical must be retained for four years; declaration forms
for listed essential chemicals must be retained for two years.
(b) Copy 2 is the Drug Enforcement Administration copy used to
fulfill the notification requirements of Section 6053 of the Chemical
Diversion and Trafficking Act of 1988, as specified in 1313.12.
(c) Copy 3 shall be presented to the U.S. Customs Sevice along with
the customs entry. If the import is a regulated transaction for which
the 15-day advance notice requirement has been waived, the regulated
person shall declare this information to the U.S. Customs Service
Official by checking the block on the DEA Form 486 designated for this
purpose.
21 CFR 1313.15 Waiver of 15-day advance notice for chemical importers.
(a) Each regulated person shall provide to the Administration the
identity of any regular supplier of the regulated person not later than
August 31, 1989, along with the information required by 1313.02(i) for
documenting an established business relationship with a regular
supplier.
(b) Not later than October 30, 1989, each regular supplier so
identified in notifications made under paragraph (a) of this section
shall be a regular supplier for purposes of waiving the 15-day advance
notice requirement, unless the regulated person is otherwise notified in
writing by the Administration.
(c) A supplier identified on an initial DEA Form 486 submitted after
October 30, 1989, shall, after the expiration of the 15-day period,
qualify as a regular supplier, unless the Administration otherwise
notifies the regulated person in writing.
(d) Unless the Administration notifies the chemical importer to the
contrary, the qualification of a regular supplier of any one of these
three chemicals, acetone, 2-Butanone (MEK), or toluene, qualifies that
supplier as a regular supplier of all three of these chemicals.
(e) All chemical importers shall be required to file a DEA Precursor
and Essential Chemical Import/Export Declaration (DEA Form 486) as
required by 1313.12.
(54 FR 31665, Aug. 1, 1989, as amended at 56 FR 55076, Oct. 24, 1991)
21 CFR 1313.15 Exportation of Precursors and Essential Chemicals
21 CFR 1313.21 Requirement of authorization to export.
(a) No person shall export of cause to be exported from the United
States any chemical listed in 1310.02 of this chapter, which meets or
exceeds the threshold quantities identified in 1310.04(f) of this
chapter until such time as the Administrator has been notified.
Notification must be made not later than 15 days before the transaction
is to take place. In order to facilitate the export of listed chemicals
and implement the purpose of the Act, regulated persons may wish to
provide notification to the Administration as far in advance of the 15
days as possible.
(b) A completed DEA Form 486 must be received at the following
address not later than 15 days prior to the exportation:
Drug Enforcement Administration, P.O. Box 28346, Washington, DC
20038.
A copy of the completed DEA Form 486 may be transmitted directly to
the Drug Enforcement Administration, Drug Control Section, through
electronic facsimile media not later than 15 days prior to the
exportation.
(c) The 15-day advance notification requirement for listed chemical
exports may be waived for any regulated person who has satisfied the
requirements of 1313.24 for reporting to the Administration an
established business relationship with a foreign customer as defined in
1313.02(j). A DEA Form 486 export declaration to a foreign customer must
be received by the Drug Enforcement Administration, Drug Control
Section, on or before the date of exportation through use of the mailing
address listed in 1313.21(b) or transmitted directly through use of
electronic facsimile media.
(d) No person shall knowingly or intentionally export or cause to be
exported a listed chemical in violation of the law of the country to
which the chemical is exported. Likewise, no person shall export or
cause to be exported any listed chemical when that person has reasonable
cause to believe the regulated transaction is in violation of the law of
the country to which the chemical is exported. The Administration will
publish a notice of foreign import restrictions for listed chemicals of
which DEA has knowledge as provided in 1313.25.
21 CFR 1313.22 Contents of export declaration.
(a) Any precursor or essential chemical listed in 1310.02 of this
chapter which meets or exceeds the quantitative threshold criteria
established in 1310.04(f) of this chapter may be exported if that
chemical is needed for medical, commercial, scientific, or other
legitimate uses.
(b) Any regulated person who desires to export a threshold or greater
quantity of a listed chemical shall notify the Administration through
procedures outlined in 1313.21 and distribute three copies of DEA Form
486 as directed in 1313.23.
(c) The DEA Form 486 must be executed in triplicate and must include
all the following information:
(1) The name, address, telephone number, telex number, and, where
available, the facsimile number of the chemical exporter; the name,
address, telephone number, telex number, and, where available, the
facsimile number of the export broker, if any;
(2) The name and description of each listed chemical as it appears on
the label or container, the name of each listed chemical as it is
designated in 1310.02 of this chapter, the size or weight of container,
the number of containers, the net weight of each listed chemical given
in kilograms or parts thereof, and the gross weight of the shipment
given in kilograms or parts thereof;
(3) The proposed export date, the U.S. Customs port of exportation,
and the foreign port of entry; and
(4) The name, address, telephone, telex, and where available, the
facsimile number of the consignee in the country where the chemical
shipment is destined; the name(s) and address(es) of any intermediate
consignee(s).
(d) Notwithstanding the time limitations included in paragraph (b) of
this section, a regulated person may receive a waiver of the 15-day
advance notification requirement following the procedures outlined in
1313.24.
(e) Declared exports of listed chemicals which are refused, rejected,
or otherwise deemed undeliverable may be returned to the U.S. chemical
exporter of record. A brief written notification (this does not require
a DEA Form 486) outlining the circumstances must be sent to the Drug
Enforcement Administration, P.O. Box 28346, Washington, DC 20038,
following the return within a reasonable time. This provision does not
apply to shipments that have cleared foreign customs, been delivered,
and accepted by the foreign consignee. Returns to third parties in the
United States will be regarded as imports.
21 CFR 1313.23 Distribution of export declaration.
The required three copies of the precursor and essential chemical
export declaration (DEA Form 486) will be distributed as follows:
(a) Copy 1 shall be retained on file by the chemical exporters as the
official record of export. Export declaration forms involving a listed
precursor chemical must be retained for four years; declaration forms
for listed essential chemicals must be retained for two years.
(b) Copy 2 is the Drug Enforcement Administration copy used to
fulfill the notification requirements of Section 6053 of the Chemical
Diversion and Trafficking Act of 1988, as specified in 1313.21
(c) Copy 3 shall be presented to the U.S. Customs Service at the port
of exit along with the Shippers Export Declaration for each export of a
listed chemical or chemicals.
21 CFR 1313.24 Waiver of 15-day advance notice for chemical exporters.
(a) Each regulated person shall provide to the Administration the
identity and information listed in 1313.02(j) for an established
business relationship with a foreign customer not later than August 31,
1989.
(b) Not later than October 31, 1989, each regular customer so
identified in notifications made under 1313.24(a) shall be a regular
customer for purposes of waiving the 15-day advance notice requirement,
unless the regulated person is otherwise notified in writing by the
Administration.
(c) Each foreign customer identified on an initial DEA Form 486
submitted after the effective date of the implementation of part 1313
shall, after the expiration of the 15-day period, qualify as a regular
customer, unless the Administration otherwise notifies the regulated
person in writing.
(d) Unless the Administration notifies the chemical exporter to the
contrary, the qualification of a regular customer for any one of these
three chemicals, acetone, 2-Butanone (MEK), or toluene, qualifies that
customer as a regular customer for all three of these chemicals.
(e) The Administrator may notify any chemical exporter that a regular
customer has been disqualified or that a new customer for whom a
notification has been submitted is not to be accorded the status of a
regular customer. In the event of a disqualification of an established
regular customer, the chemical exporter will be notified in writing of
the reasons for such action.
Public reporting (one-time) burden for this collection of information
is estimated to average four hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing and collection
of information. Send comments regarding this burden estimate or any
other aspect of this collection of information, including suggestions
for reducing this burden to the Drug Enforcement Administration, Records
Management Section, Washington, DC 20537; and to the Office of
Management and Budget, Paperwork Reduction Project No. 1117-0025,
Washington, DC 20503.
(54 FR 31665, Aug. 1, 1989, as amended at 56 FR 55077, Oct. 24, 1991)
21 CFR 1313.25 Foreign import restrictions.
Any export from the United States in violation of the law of the
country to which the chemical is exported is subject to the penalties of
Title 21 United States Code 960(d).
21 CFR 1313.31 Advance notice of importation for transshipment or
transfer.
(a) A quantity of a chemical listed in 1310.02 of this chapter that
meets or exceeds the threshold reporting requirements found in
1310.04(f) of this chapter may be imported into the United States for
transshipment, or may be transferred or transshipped within the United
States for immediate exportation, provided that advance notice is given
to the Administration.
(b) Advance notification must be provided to the Drug Enforcement
Administration, P.O. Box 28346, Washington, DC 20038, not later than 15
days prior to the proposed date the listed chemical will transship or
transfer through the United States. The written notification (not a DEA
Form 486) shall contain the following information:
(1) The date the notice was executed;
(2) The complete name and description of the listed chemical as it
appears on the label or container.
(3) The name of the listed chemical as designated by 1310.02 of this
chapter.
(4) The number of containers and the size or weight of the container
for each listed item;
(5) The new weight of each listed chemical given in kilograms or
parts thereof;
(6) The gross weight of the shipment given in kilograms or parts
thereof;
(7) The name, address, telephone number, telex number, business of
the foreign exporter and, where available, the facsimile number;
(8) The foreign port of exportation;
(9) The approximate date of exportation;
(10) The complete identification of the exporting carrier;
(11) The name, address, business, telephone number, telex number,
and, where available, the facsimile number of the importer, transferor,
or transshipper;
(12) The U.S. port of entry;
(13) The approximate date of entry;
(14) The name, address, telephone number, telex number, business of
the consignee and, where available, facsimile number of the consignee at
the foreign port of entry;
(15) The shipping route from the U.S. port of exportation to the
foreign port of entry at final destination;
(16) The approximate date of receipt by the consignee at the foreign
port of entry; and
(17) The signature of the importer, transferor or transshipper, or
his agent, accompanied by the agent's title.
(c) Unless notified to the contrary prior to the expected date of
delivery, the importation for transshipment or transfer is considered
approved.
(d) No waiver of the 15-day advance notice will be given for imports
of listed chemicals in quantities meeting or exceeding threshold
quantities for transshipment or transfer outside the United States.
21 CFR 1313.41 Suspension of shipments.
(a) The Administrator may suspend any importation or exportation of a
chemical listed in 1310.02 of this chapter based on evidence that the
chemical proposed to be imported or exported may be diverted to the
clandestine manufacture of a controlled substance. If the Administrator
so suspends, he shall provide written notice of such suspension to the
regulated person. Such notice shall contain a statement of the legal
and factual basis for the order.
(b) Upon service of the order of suspension, the regulated person to
whom the order applies under paragraph (a) of this section must, if he
desires a hearing, file a written request for a hearing pursuant to
1313.51-1313.57.
21 CFR 1313.41 Hearings
21 CFR 1313.51 Hearings generally.
In any case where a regulated person requests a hearing regarding the
suspension of a shipment of a listed chemical, the procedures for such
hearing shall be governed generally by the procedures set forth in the
Administrative Procedure Act (5 U.S.C. 551-559) and specifically by
section 6053 of the Chemical Diversion and Trafficking Act (Pub. L.
100-690), by 21 CFR 1313.52-1313.57, and by the procedures for
administrative hearings under the Controlled Substances Act set forth in
1316.41-1316.67 of this chapter.
21 CFR 1313.52 Purpose of hearing.
If requested by a person entitled to a hearing, the Administrator
shall cause a hearing to be held for the purpose of receiving factual
evidence regarding the issues involved in the suspension of shipments
within 45 days of the date of the request, unless the requesting party
requests an extension of time.
21 CFR 1313.53 Waiver of modification of rules.
The Administrator or the presiding officer (with respect to matters
pending before him) may modify or waive any rule in this part by notice
in advance of the hearing, if he determines that no party in the hearing
will be unduly prejudiced and the ends of justice will thereby be
served. Such notice of modification or waiver shall be made a part of
the record of the hearing.
21 CFR 1313.54 Request for hearing.
(a) Any person entitled to a hearing pursuant to 1313.52 and
desiring a hearing shall, within 30 days after receipt of the notice to
suspend the shipment, file with the Administrator a written request for
a hearing in the form prescribed in 1316.47 of this chapter.
(b) If any person entitled to a hearing or to participate in a
hearing pursuant to 1313.41 fails to file a request for a hearing or a
notice of appearance, or if he so files and fails to appear at the
hearing, he shall be deemed to have waived his opportunity for the
hearing or to participate in the hearing, unless he shows good cause for
such failure.
(c) If all persons entitled to a hearing or to participate in a
hearing waive or are deemed to waive their opportunity for the hearing
or to participate in the hearing, the Administrator may cancel the
hearing, if scheduled, and issue his final order pursuant to 1313.57.
21 CFR 1313.55 Burden of proof.
At any hearing regarding the suspension of shipments, the Agency
shall have the burden of proving that the requirements of this part for
such suspension are satisfied.
21 CFR 1313.56 Time and place of hearing.
(a) If any regulated person requests a hearing on the suspension of
shipments, a hearing will be scheduled no later than 45 days after the
request is made, unless the regulated person requests an extension to
this date.
(b) The hearing will commence at the place and time designated in the
notice given pursuant to paragraph (a) of this section but thereafter it
may be moved to a different place and may be continued from day to day
or recessed to a later day without notice other than announcement
thereof by the presiding officer at the hearing.
21 CFR 1313.57 Final order.
As soon as practicable after the presiding officer has certified the
record to the Administrator, the Administrator shall issue his order
regarding the suspension of shipment. The order shall include the
findings of fact and conclusions of law upon which the order is based.
The Administrator shall serve one copy of his order upon each party in
the hearing.
21 CFR 1313.57 PARTS 1314-1315 -- (RESERVED)
21 CFR 1313.57 PART 1316 -- ADMINISTRATIVE FUNCTIONS, PRACTICES, AND PROCEDURES
21 CFR 1313.57 Subpart A -- Administrative Inspections
Sec.
1316.01 Scope of Subpart A.
1316.02 Definitions.
1316.03 Authority to make inspections.
1316.04 Exclusion from inspection.
1316.05 Entry.
1316.06 Notice of inspection.
1316.07 Requirement for administrative inspection warrant;
exceptions.
1316.08 Consent to inspection.
1316.09 Application for administrative inspection warrant.
1316.10 Administrative probable cause.
1316.11 Execution of warrants.
1316.12 Refusal to allow inspection with an administrative warrant.
1316.13 Frequency of administrative inspections.
21 CFR 1313.57 Subpart B -- Protection of Researchers and Research
Subjects
1316.21 Definitions.
1316.22 Exemption.
1316.23 Confidentiality of identity of research subjects.
1316.24 Exemption from prosecution for researchers.
21 CFR 1313.57 Subpart C -- Enforcement Proceedings
1316.31 Authority for enforcement proceeding.
1316.32 Notice of proceeding; time and place.
1316.33 Conduct of proceeding.
1316.34 Records of proceeding.
21 CFR 1313.57 Subpart D -- Administrative Hearings
1316.41 Scope of Subpart D.
1316.42 Definitions.
1316.43 Information; special instructions.
1316.44 Waiver or modification of rules.
1316.45 Filings; address; hours.
1316.46 Inspection of record.
1316.47 Request for hearing.
1316.48 Notice of appearance.
1316.49 Waiver of hearing.
1316.50 Appearance; representation; authorization.
1316.51 Conduct of hearing and parties; ex parte communications.
1316.52 Presiding officer.
1316.53 Time and place of hearing.
1316.54 Prehearing conference.
1316.55 Prehearing ruling.
1316.56 Burden of proof.
1316.57 Submission of documentary evidence and affidavits and
identification of witnesses subsequent to prehearing conference.
1316.58 Summary of testimony; affidavits.
1316.59 Submission and receipt of evidence.
1316.60 Objections; offer of proof.
1316.61 Exceptions to rulings.
1316.62 Appeal from ruling of presiding officer.
1316.63 Official transcript; index; corrections.
1316.64 Proposed findings of fact and conclusions of law.
1316.65 Report and record.
1316.66 Exceptions.
1316.67 Final order.
1316.68 Copies of petitions for judicial review.
21 CFR 1313.57 Subpart E -- Seizure, Forfeiture, and Disposition of
Property
1316.71 Definitions.
1316.72 Officers who will make seizures.
1316.73 Custody and other duties.
1316.74 Appraisement.
1316.75 Advertisement.
1316.76 Requirements as to claim and bond.
1316.77 Administrative forfeiture.
1316.78 Judicial forfeiture.
1316.79 Petitions for remission or mitigation of forfeiture.
1316.80 Time for filing petitions.
1316.81 Handling of petitions.
21 CFR 1313.57 Subpart F -- Expedited Forfeiture Proceedings for
Certain Property
1316.90 Purpose and scope.
1316.91 Definitions.
1316.92 Petition for expedited release in an administrative
forfeiture action.
1316.93 Ruling on petition for expedited release in an administrative
forfeiture action.
1316.94 Posting of substitute res in an administrative forfeiture
action.
1316.95 Petition for expedited release of a conveyance in a judicial
forfeiture action.
1316.96 Ruling on a petition for expedited release of a conveyance in
a judicial forfeiture action.
1316.97 Initiating judicial forfeiture proceeding against a
conveyance within 60 days of the filing of a claim and cost bond.
1316.98 Substitute res bond in a judicial forfeiture action against a
conveyance.
1316.99 Notice provisions.
Source: 36 FR 7820, Apr. 24, 1971, unless otherwise noted.
Redesignated at 38 FR 26609, Sept. 24, 1973.
21 CFR 1313.57 Subpart A -- Administrative Inspections
Authority: 21 U.S.C. 822(f), 871(b), 880, 958(f), 965.
21 CFR 1316.01 Scope of Subpart A.
Procedures regarding administrative inspections and warrants pursuant
to sections 302(f), 510, 1008(d), and 1015 of the Act (21 U.S.C. 822(f),
880, 958(d), and 965) are governed generally by those sections and
specifically by the sections of this subpart.
21 CFR 1316.02 Definitions.
As used in this subpart, the following terms shall have the meanings
specified:
(a) The term Act means the Controlled Substances Act (84 Stat. 1242;
21 U.S.C. 801) and/or the Controlled Substances Import and Export Act
(84 Stat. 1285; 21 U.S.C. 951).
(b) The term Administration means the Drug Enforcement
Administration.
(c) The term controlled premises means -- (1) Places where original
or other records or documents required under the Act are kept or
required to be kept, and
(2) Places, including factories, warehouses, or other establishments,
and conveyances, where persons registered under the Act or exempted from
registration under the Act may lawfully hold, manufacture, or
distribute, dispense, administer, or otherwise dispose of controlled
substances.
(d) The term Administrator means the Administrator of the
Administration. The Administrator has been delegated authority under
the Act by the Attorney General (28 CFR 0.100).
(e) The term inspector means an officer or employee of the
Administration authorized by the Administrator to make inspections under
the Act.
(f) The term register and registration refer to registration required
and permitted by sections 303 and 1008 of the Act (21 U.S.C. 823 and
958).
(g) Any term not defined in this section shall have the definition
set forth in sections 102 and 1001 of the Act (21 U.S.C. 802 and 951).
21 CFR 1316.03 Authority to make inspections.
In carrying out his functions under the Act, the Administrator,
through his inspectors, is authorized in accordance with sections 510
and 1015 of the Act (21 U.S.C. 880 and 965) to enter controlled premises
and conduct administrative inspections thereof, for the purpose of:
(a) Inspecting, copying, and verifying the correctness of records,
reports, or other documents required to be kept or made under the Act
and regulations promulgated under the Act, including, but not limited
to, inventory and other records required to be kept pursuant to part
1304 of this chapter, order form records required to be kept pursuant to
part 1305 of this chapter, prescription and distribution records
required to be kept pursuant to part 1306 of this chapter, records of
listed chemicals, tableting machines, and encapsulating machines
required to be kept pursuant to part 1310 of this chapter, import/export
records of listed chemicals required to be kept pursuant to part 1313 of
this chapter, shipping records identifying the name of each carrier used
and the date and quantity of each shipment, and storage records
identifying the name of each warehouse used and the date and quantity of
each storage.
(b) Inspecting within reasonable limits and to a reasonable manner
all pertinent equipment, finished and unfinished controlled substances
and other substances or materials, containers, and labeling found at the
controlled premises relating to this Act;
(c) Making a physical inventory of all controlled substances on-hand
at the premises;
(d) Collecting samples of controlled substances or precursors (in the
event any samples are collected during an inspection, the inspector
shall issue a receipt for such samples on DEA Form 84 to the owner,
operator, or agent in charge of the premises);
(e) Checking of records and information on distribution of controlled
substances by the registrant as they relate to total distribution of the
registrant (i.e., has the distribution in controlled substances
increased markedly within the past year, and if so why); and
(f) Except as provided in 1316.04, all other things therein
(including records, files, papers, processes, controls and facilities)
appropriate for verification of the records, reports, documents referred
to above or otherwise bearing on the provisions of the Act and the
regulations thereunder.
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 51 FR 5319, Feb. 13, 1986; 55 FR 50827, Dec. 11,
1990)
21 CFR 1316.04 Exclusion from inspection.
(a) Unless the owner, operator or agent in charge of the controlled
premises so consents in writing, no inspection authorized by these
regulations shall extend to:
(1) Financial data:
(2) Sales data other than shipping data; or
(3) Pricing data.
21 CFR 1316.05 Entry.
An inspection shall be carried out by an inspector. Any such
inspector, upon (a) stating his purpose and (b) presenting to the owner,
operator or agent in charge of the premises to be inspected (1)
appropriate credentials, and (2) written notice of his inspection
authority under 1314.06 of this chapter, and (c) receiving informed
consent under 1316.08 or through the use of administrative warrant
issued under 1316.09-1316.14, shall have the right to enter such
premises and conduct inspections at reasonable times and in a reasonable
manner.
(36 FR 7820, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, l973)
21 CFR 1316.06 Notice of inspection.
The notice of inspection (DEA (or DNB) Form 82) shall contain:
(a) The name and title of the owner, operator, or agent in charge of
the controlled premises;
(b) The controlled premises name;
(c) The address of the controlled premises to be inspected;
(d) The date and time of the inspection;
(e) A statement that a notice of inspection is given pursuant to
section 510 of the Act (21 U.S.C. 880);
(f) A reproduction of the pertinent parts of section 510 of the Act;
and
(g) The signature of the inspector.
21 CFR 1316.07 Requirement for administrative inspection warrant;
exceptions.
In all cases where an inspection is contemplated, an administrative
inspection warrant is required pursuant to section 510 of the Act (21
U.S.C. 880), except that such warrant shall not be required for
establishments applying for initial registration under the Act, for the
inspection of books and records pursuant to an administrative subpoena
issued in accordance with section 506 of the Act (21 U.S.C. 876) nor for
entries in administrative inspections (including seizures of property):
(a) With the consent of the owner, operator, or agent in charge of
the controlled premises as set forth in 1316.08;
(b) In situations presenting imminent danger to health or safety;
(c) In situations involving inspection of conveyances where there is
reasonable cause to obtain a warrant;
(d) In any other exceptional or emergency circumstance or time or
opportunity to apply for a warrant is lacking; or
(e) In any other situations where a warrant is not constitutionally
required.
21 CFR 1316.08 Consent to inspection.
(a) An administrative inspection warrant shall not be required if
informed consent is obtained from the owner, operator, or agent in
charge of the controlled premises to be inspected.
(b) Wherever possible, informed consent shall consist of a written
statement signed by the owner, operator, or agent in charge of the
premises to be inspected and witnessed by two persons. The written
consent shall contain the following information:
(1) That he (the owner, operator, or agent in charge of the premises)
has been informed of his constitutional right not to have an
administrative inspection made without an administrative inspection
warrant;
(2) That he has right to refuse to consent to such an inspection;
(3) That anything of an incriminating nature which may be found may
be seized and used against him in a criminal prosecution;
(4) That he has been presented with a notice of inspection as set
forth in 1316.06;
(5) That the consent is given by him is voluntary and without threats
of any kind; and
(6) That he may withdraw his consent at any time during the course of
inspection.
(c) The written consent shall be produced in duplicate and be
distributed as follows:
(1) The original will be retained by the inspector; and
(2) The duplicate will be given to the person inspected.
(36 FR 7820, Apr. 24, 1971, as amended at 37 FR 15924, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1316.09 Application for administrative inspection warrant.
(a) An administrative inspection warrant application shall be
submitted to any judge of the United States or of a State court of
record, or any United States magistrate and shall contain the following
information:
(1) The name and address of the controlled premises to be inspected;
(2) A statement of statutory authority for the administrative
inspection warrant, and that the fact that the particular inspection in
question is designed to insure compliance with the Act and the
regulations promulgated thereunder;
(3) A statement relating to the nature and extent of the
administrative inspection, including, where necessary, a request to
seize specified items and/or to collect samples of finished or
unfinished controlled substances:
(4) A statement that the establishment either:
(i) Has not been previously inspected, or
(ii) Was last inspected on a particular date.
(b) The application shall be submitted under oath to an appropriate
judge or magistrate.
(36 FR 7820, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1316.10 Administrative probable cause.
If the judge or magistrate is satisfied that ''administrative
probable cause,'' as defined in section 510(d)(1) of the Act (21 U.S.C.
880(d)(1)) exists, he shall issue an administrative warrant.
Administrative probable cause shall not mean criminal probable cause as
defined by Federal statute or case law.
21 CFR 1316.11 Execution of warrants.
An administrative inspection warrant shall be executed and returned
as required by, and any inventory or seizure made shall comply with the
requirements of, section 510(d) (3) of the Act (21 U.S.C. 880(d)(3)).
The inspection shall begin as soon as is practicable after the issuance
of the administrative inspection warrant and shall be completed with
reasonable promptness. The inspection shall be conducted during regular
business hours and shall be completed in a reasonable manner.
21 CFR 1316.12 Refusal to allow inspection with an administrative
warrant.
If a registrant or any person subject to the Act refuses to permit
execution of an administrative warrant or impedes the inspector in the
execution of that warrant, he shall be advised that such refusal or
action constitutes a violation of section 402(a)(6) of the Act (21
U.S.C. (a)(6)). If he persists and the circumstances warrant, he shall
be arrested and the inspection shall commence or continue.
21 CFR 1316.13 Frequency of administrative inspections.
Except where circumstances otherwise dictate, it is the intent of the
Administration to inspect all manufacturers of controlled substances
listed in Schedules I and II and distributors of controlled substances
listed in Schedule I once each year; and to inspect all distributors of
controlled substances listed in Schedules II through V and manufacturers
of controlled substances listed in schedules III through V once every 3
years.
21 CFR 1316.13 Subpart B -- Protection of Researchers and Research
Subjects
Authority: 21 U.S.C. 830, 871(b).
21 CFR 1316.21 Definitions.
As used in this part, the following terms shall have the meanings
specified:
(a) The term investigative personnel includes managers, Diversion
Investigators, attorneys, analysts and support personnel employed by the
Drug Enforcement Administration who are involved in the processing,
reviewing and analyzing of declarations and other relevant documents or
data relative to regulated transactions or are involved in conducting
investigations initiated pursuant to the receipt of such declarations,
documents or data.
(b) The term law enforcement personnel means Special Agents employed
by the Drug Enforcement Administration who, in the course of their
official duties, gain knowledge of information which is confidential
under such section.
(54 FR 31670, Aug. 1, 1989)
21 CFR 1316.22 Exemption.
(a) Any person who is aggrieved by a disclosure of information in
violation of subsection (c)(1) of Section 310 of the Controlled
Substances Act (21 U.S.C. 830) may bring a civil action against the
violator for appropriate relief.
(b) Notwithstanding the provision of paragraph (a), a civil action
may not be brought under such paragraph against investigative or law
enforcement personnel of the Drug Enforcement Administration.
(54 FR 31670, Aug. 1, 1989)
21 CFR 1316.23 Confidentiality of identity of research subjects.
(a) Any person conducting a bona fide research project directly
related to the enforcement of the laws under the jurisdiction of the
Attorney General concerning drugs or other substances which are or may
be subject to control under the Controlled Substances Act (84 Stat.
1242; 21 U.S.C. 801) who intends to maintain the confidentiality of the
identity of those persons who are the subjects of such research may
petition the Administrator of the Drug Enforcement Administration for a
grant of confidentiality: Providing, That:
(1) The Attorney General is authorized to carry out such research
under the provisions of Section 502(a) (2-6) of the Controlled
Substances Act of 1970 (21 U.S.C. 872(a) (2-6)); and the research is
being conducted with funds provided in whole or part by the Department
of Justice; or
(2) The research is of a nature that the Attorney General would be
authorized to carry out under the provisions of Section 502(a) (2-6) of
the Controlled Substances Act (21 U.S.C. 872(a) (2-6), and is being
conducted with funds provided from sources outside the Department of
Justice.
(b) All petitions for Grants of Confidentiality shall be addressed to
the Administrator, Drug Enforcement Administration, 1405 I Street NW.,
Washington, DC 20537, and shall contain the following:
(1) A statement as to whether the research protocol requires the
manufacture, production, import, export, distribution, dispensing,
administration, or possession of controlled substances, and if so the
researcher's registration number or a statement that an application for
such registration has been submitted to DEA;
(2) The location of the research project;
(3) The qualifications of the principal investigator;
(4) A general description of the research or a copy of the research
protocol;
(5) The source of funding for the research project;
(6) A statement as to the risks posed to the research subjects by the
research procedures and what protection will be afforded to the research
subjects;
(7) A statement as to the risks posed to society in general by the
research procedures and what measures will be taken to protect the
interests of society;
(8) A specific request to withhold the names and/or any other
identifying characteristics of the research subjects; and
(9) Statements establishing that a grant of confidentiality is
necessary to the successful completion of the research project.
(c) The grant of confidentiality of identity of research subjects
shall consist of a letter issued by the Administrator, which shall
include:
(1) The researcher's name and address.
(2) The researcher's registration number, if applicable.
(3) The title and purpose of the research.
(4) The location of the research project.
(5) An authorization for all persons engaged in the research to
withhold the names and identifying characteristics of persons who are
the subjects of such research, stating that persons who obtain this
authorization may not be compelled in any Federal, State, or local
civil, criminal, administrative, legislative, or other proceeding to
identify the subjects of such research for which this authorization was
obtained.
(6) The limits of this authorization, if any.
(7) A statement to the effect that the grant of confidentiality of
identity of research subjects shall be perpetual but shall pertain only
to the subjects of the research described in the research protocol, the
description of the research submitted to DEA, or as otherwise
established by DEA.
(d) Within 30 days of the date of completion of the research project,
the researcher shall so notify the Administrator. The Administrator
shall issue another letter including the information required in
paragraph (c) of this section and stating the starting and finishing
dates of the research for which the confidentiality of identity of
research subjects was granted; upon receipt of this letter, the
research shall return the original letter of exemption.
(42 FR 54946, Oct. 12, 1977. Redesignated at 54 FR 31670, Aug. 1,
1989)
21 CFR 1316.24 Exemption from prosecution for researchers.
(a) Upon registration of an individual to engage in research in
controlled substances under the Controlled Substances Act (84 Stat.
1242; 21 U.S.C. 801), the Administrator of the Drug Enforcement
Administration, on his own motion or upon request in writing from the
Secretary or from the researcher or researching practitioner, may exempt
the registrant when acting within the scope of his registration, from
prosecution under Federal, State, or local laws for offenses relating to
possession, distribution or dispensing of those controlled substances
within the scope of his exemption. However, this exemption does not
diminish any requirement of compliance with the Federal Food, Drug and
Cosmetic Act (21 U.S.C. 301).
(b) All petitions for Grants of Exemption from Prosecution for the
Researcher shall be addressed to the Administrator, Drug Enforcement
Administration, 1405 I Street NW., Washington, DC 20537 and shall
contain the following:
(1) The researcher's registration number if any, for the project;
(2) The location of the research project;
(3) The qualifications of the principal investigator;
(4) A general description of the research or a copy of the research
protocol;
(5) The source of funding for the research project;
(6) A statement as to the risks posed to the research subjects by the
research procedures and what protection will be afforded to the research
subjects;
(7) A statement as to the risks posed to society in general by the
research procedures and what measures will be taken to protect the
interests of society;
(8) A specific request for exemption from prosecution by Federal,
State, or local authorities for offenses related to the possession,
distribution, and dispensing of controlled substances in accord with the
procedures described in the research protocol;
(9) A statement establishing that a grant of exemption from
prosecution is necessary to the successful completion of the research
project.
(c) Any researcher or practitioner proposing to engage in research
requesting both exemption from prosecution and confidentiality of
identity of research subjects may submit a single petition incorporating
the information required in 1316.21(b) and 1316.22(b).
(d) The exemption shall consist of a letter issued by the
Administrator, which shall include:
(1) The researcher's name and address;
(2) The researcher's registration number for the research project;
(3) The location of the research project;
(4) A concise statement of the scope of the researcher's
registration;
(5) Any limits of the exemption; and
(6) A statement that the exemption shall apply to all acts done in
the scope of the exemption while the exemption is in effect. The
exemption shall remain in effect until completion of the research
project or until the registration of the researcher is either revoked or
suspended or his renewal of registration is denied. However, the
protection afforded by the grant of exemption from prosecution during
the research period shall be perpetual.
(e) Within 30 days of the date of completion of the research project,
the researcher shall so notify the Administrator. The Administrator
shall issue another letter including the information required in
paragraph (d) of this section and stating the date of which the period
of exemption concluded; upon receipt of this letter the researcher
shall return the original letter of exemption.
(42 FR 54946, Oct. 12, 1977. Redesignated at 54 FR 31670, Aug. 1,
1989)
21 CFR 1316.24 Subpart C -- Enforcement Proceedings
Authority: 21 U.S.C. 871(b), 883.
21 CFR 1316.31 Authority for enforcement proceeding.
A hearing may be ordered or granted by any Special Agent in Charge of
the Drug Enforcement Administration, at his discretion, to permit any
person against whom criminal and/or civil action is contemplated under
the Controlled Substances Act (84 Stat. 1242; 21 U.S.C. 801) or the
Controlled Substances Import and Export Act (84 Stat. 1285; 21 U.S.C.
951) an opportunity to present his views and his proposals for bringing
his alleged violations into compliance with the law. Such hearing will
also permit him to show cause why prosecution should not be instituted,
or to present his views on the contemplated proceeding.
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 47 FR 41735, Sept. 22, 1982)
21 CFR 1316.32 Notice of proceeding; time and place.
Appropriate notice designating the time and place for the hearing
shall be given to the person. Upon request, timely and properly made,
by the person to whom notice has been given, the time or place of the
hearing, or both, may be changed if the request states reasonable
grounds for such change. Such request shall be addressed to the Special
Agent in Charge who issued the notice.
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 47 FR 41735, Sept. 22, 1982)
21 CFR 1316.33 Conduct of proceeding.
Presentation of views at a hearing under this subpart shall be
private and informal. The views presented shall be confined to matters
relevant to bringing violations into compliance with the Act or to other
contemplated proceedings under the Act. These views may be presented
orally or in writing by the person to whom the notice was given, or by
his authorized representative.
21 CFR 1316.34 Records of proceeding.
A formal record, either verbatim or summarized, of the hearing may be
made at the discretion of the Special Agent in Charge. If a verbatim
record is to be made, the person attending the hearing will be so
advised prior to the start of the hearing.
(37 FR 15924, Aug. 8, 1972. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 47 FR 41735, Sept. 22, 1982)
21 CFR 1316.34 Subpart D -- Administrative Hearings
Authority: 21 U.S.C. 811, 812, 871(b), 875, 958(d), 965.
21 CFR 1316.41 Scope of Subpart D.
Procedures in any administrative hearing held under the Act are
governed generally by the rule making and/or adjudication procedures set
forth in the Administrative Procedure Act (5 U.S.C. 551-559) and
specifically by the procedures set forth in this subpart, except where
more specific regulations (set forth in 1301.51-1301.57,
1303.41-1303.47, 1308.41-1308.51, 1311.51-1311.53, or
1312.41-1312.47) apply.
(36 FR 7820, Apr. 24, 1971, as amended at 37 FR 15924, Aug. 8, 1972.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1316.42 Definitions.
As used in this subpart, the following terms shall have the meanings
specified:
(a) The term Act means the Controlled Substances Act (84 Stat. 1242;
21 U.S.C. 801) and/or the Controlled Substances Import and Export Act
(84 Stat. 1285; 21 U.S.C. 951).
(b) The term Administrator means the Administrator of the
Administration. The Administrator has been delegated authority under
the Act by the Attorney General (28 CFR 0.100).
(c) The term hearing means any hearing held pursuant to the Act.
(d) The term Hearing Clerk means the hearing clerk of the
Administration.
(e) The term person includes an individual, corporation, government
or governmental subdivision or agency, business trust, partnership,
association or other legal entity.
(f) The term presiding officer means an administrative law judge
qualified and appointed as provided in the Administrative Procedure Act
(5 U.S.C. 556).
(g) The term proceeding means all actions involving a hearing,
commencing with the publication by the Administrator of the notice of
proposed rule making or the issuance of an order to show cause.
(h) Any term not defined in this section shall have the definition
set forth in section 102 of the Act (21 U.S.C. 802) and in 1301.02 of
this chapter.
(36 FR 7820, Apr. 24, 1971, as amended at 38 FR 757, Jan. 4, 1973.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1316.43 Information; special instructions.
Information regarding procedure under these rules and instructions
supplementing these rules in special instances will be furnished by the
Hearing Clerk upon request.
21 CFR 1316.44 Waiver or modification of rules.
The Administrator or the presiding officer (with respect to matters
pending before him) may modify or waive any rule in this subpart by
notice in advance of the hearing, if he determines that no party in the
hearing will be unduly prejudiced and the ends of justice will thereby
be served. Such notice of modification or waiver shall be made a part
of the record of the hearing.
21 CFR 1316.45 Filings; address; hours.
Documents required or permitted to be filed in, and correspondence
relating to, hearings governed by the regulations in this chapter shall
be filed with the Hearing Clerk, Drug Enforcement Administration,
Department of Justice, Washington, DC 20537. This office is open Monday
through Friday from 8:30 a.m. to 5 p.m. eastern standard or daylight
saving time, whichever is effective in the District of Columbia at the
time, except on national legal holidays. Documents shall be dated and
deemed filed upon receipt by the Hearing Clerk.
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 55 FR 27464, July 3, 1990)
21 CFR 1316.46 Inspection of record.
(a) The record bearing on any proceeding, except for material
described in subsection (b) of this section, shall be available for
inspection and copying by any person entitled to participate in such
proceeding, during office hours in the office of the Hearing Clerk, Drug
Enforcement Administration, Department of Justice, Washington, DC 20537.
(b) The following material shall not be available for inspection as
part of the record:
(1) A research protocol filed with an application for registration to
conduct research with controlled substances listed in Schedule I,
pursuant to 1301.32 (a) (3) of this chapter, if the applicant requests
that the protocol be kept confidential;
(2) An outline of a production or manufacturing process filed with an
application for registration to manufacture a new narcotic controlled
substance, pursuant to 1301.33 of this chapter, if the applicant
requests that the outline be kept confidential;
(3) Any confidential or trade secret information disclosed in
conjunction with an application for registration, or in reports filed
while registered, or acquired in the course of an investigation,
entitled to protection under subsection 402(a) (8) of the Act (21 U.S.C.
842(a) (8)) or any other law restricting public disclosure of
information; and
(4) Any material contained in any investigatory report, memorandum,
or file, or case report compiled by the Administration.
21 CFR 1316.47 Request for hearing.
(a) Any person entitled to a hearing and desiring a hearing shall,
within the period permitted for filing, file a request for a hearing in
the following form:
------------ (Date)
Administrator, Drug Enforcement Administration, United States
Department of Justice, Washington, DC 20537, Attention: DEA Federal
Register Representative.
Dear Sir: The undersigned -------------------- (Name of person)
hereby requests a hearing in the matter of: ------------------------
(Identification of the proceeding).
(A) (State with particularity the interest of the person in the
proceeding.)
(B) (State with particularity the objections or issues, if any,
concerning which the person desires to be heard.)
(C) (State briefly the position of the person with regard to the
particular objections or issues.)
All notices to be sent pursuant to the proceeding should be addressed
to:
Respectfully yours,
(b) The Administrative Law Judge, upon request and showing of good
cause, may grant a reasonable extension of the time allowed for response
to an Order to Show Cause.
(36 FR 7820, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973)
Editorial Note: For FR citations affecting 1316.47, see the List of
CFR Sections Affected in the Finding Aids section of this volume.
21 CFR 1316.48 Notice of appearance.
Any person entitled to a hearing and desiring to appear in any
hearing, shall, if he has not filed a request for hearing, file within
the time specified in the notice of proposed rule making, a written
notice of appearance in the following form:
------------ (Date)
Administrator, Drug Enforcement Administration, United States
Department of Justice, Washington, DC 20537, Attention: DEA Federal
Register Representative.
Dear Sir: Please take notice that -------------------- (Name of
person) will appear in the matter of: ------------------------
(Identification of the proceeding).
(A) (State with particularity the interest of the person in the
proceeding.)
(B) (State with particularity the objections or issues, if any,
concerning which the person desires to be heard.)
(C) (State briefly the position of the person with regard to the
particular objections or issues.)
All notices to be sent pursuant to this appearance should be
addressed to:
Respectfully yours,
(36 FR 7820, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 40 FR 57210,
Dec. 8, 1975)
21 CFR 1316.49 Waiver of hearing.
Any person entitled to a hearing may, within the period permitted for
filing a request for hearing or notice of appearance, waiver of an
opportunity for a hearing, together with a written statement regarding
his position on the matters of fact and law involved in such hearing.
Such statement, if admissible, shall be made a part of the record and
shall be considered in light of the lack of opportunity for
cross-examination in determining the weight to be attached to matters of
fact asserted therein.
21 CFR 1316.50 Appearance; representation; authorization.
Any person entitled to appear in a hearing may appear in person or by
a representative in any proceeding or hearing and may be heard with
respect to matters relevant to the issues under consideration. A
representative must either be an employee of the person or an attorney
at law who is a member of the bar, in good standing, of any State,
territory, or the District of Columbia, and admitted to practice before
the highest court of that jurisdiction. Any representative may be
required by the Administrator or the presiding officer to present a
notarized power of attorney showing his authority to act in such
representative capacity and/or an affidavit or certificate of admission
to practice.
(36 FR 7820, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1316.51 Conduct of hearing and parties; ex parte
communications.
(a) Hearings shall be conducted in an informal but orderly manner in
accordance with law and the directions of the presiding officer.
(b) Participants in any hearing and their representatives, whether or
not members of the bar, shall conduct themselves in accordance with
judicial standards of practice and ethics and the directions of the
presiding officer. Refusal to comply with this section shall constitute
grounds for immediate exclusion from any hearing.
(c) If any official of the Administration is contacted by any
individual in private or public life concerning any substantive matter
which is the subject of any hearing, at any time after the date on which
the proceedings commence, the official who is contacted shall prepare a
memorandum setting forth the substance of the conversation and shall
file this memorandum in the appropriate public docket file. The
presiding officer and employees of the Administration shall comply with
the requirements of 5 U.S.C. 554(d) regarding ex parte communications
and participation in any hearing.
21 CFR 1316.52 Presiding officer.
A presiding officer, designated by the Administrator, shall preside
over all hearings. The functions of the presiding officer shall
commence upon his designation and terminate upon the certification of
the record to the Administrator. The presiding officer shall have the
duty to conduct a fair hearing, to take all necessary action to avoid
delay, and to maintain order. He shall have all powers necessary to
these ends, including (but not limited to) the power to:
(a) Arrange and change the date, time, and place of hearings (other
than the time and place prescribed in 1301.60) and prehearing
conferences and issue notice thereof.
(b) Hold conferences to settle, simplify, or determine the issues in
a hearing, or to consider other matters that may aid in the expeditious
disposition of the hearing.
(c) Require parties to state their position in writing with respect
to the various issues in the hearing and to exchange such statements
with all other parties.
(d) Sign and issue subpoenas to compel the attendance of witnesses
and the production of documents and materials to the extent necessary to
conduct administrative hearings pending before him.
(e) Examine witnesses and direct witnesses to testify.
(f) Receive, rule on, exclude, or limit evidence.
(g) Rule on procedural items pending before him.
(h) Take any action permitted to the presiding officer as authorized
by this part or by the provisions of the Administrative Procedure Act (5
U.S.C. 551-559).
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 42 FR 57457, Nov. 3, 1977)
21 CFR 1316.53 Time and place of hearing.
The hearing will commence at the place and time designated in the
notice of hearing published in the Federal Register but thereafter it
may be moved to a different place and may be continued from day to day
or recessed to a later day without notice other than announcement
thereof by the presiding officer at the hearing.
21 CFR 1316.54 Prehearing conference.
The presiding officer on his own motion, or on the motion of any
party for good cause shown, may direct all parties to appear at a
specified time and place for a conference for:
(a) The simplification of the issues.
(b) The possibility of obtaining stipulations, admission of facts,
and documents.
(c) The possibility of limiting the number of expert witnesses.
(d) The identification and, if practicable, the scheduling of all
witnesses to be called.
(e) The advance submission at the prehearing conference of all
documentary evidence and affidavits to be marked for identification.
(f) Such other matters as may aid in the expeditious disposition of
the hearing.
21 CFR 1316.55 Prehearing ruling.
The presiding officer may have the prehearing conference reported
verbatim and shall make a ruling reciting the action taken at the
conference, the agreements made by the parties, the schedule of
witnesses, and a statement of the issues for hearing. Such ruling shall
control the subsequent course of the hearing unless modified by a
subsequent ruling.
21 CFR 1316.56 Burden of proof.
At any hearing, the proponent for the issuance, amendment, or repeal
of any rule shall have the burden of proof.
21 CFR 1316.57 Submission of documentary evidence and affidavits and
identification of witnesses subsequent to prehearing conference.
All documentary evidence and affidavits not submitted and all
witnesses not identified at the prehearing conference shall be submitted
or identified to the presiding officer as soon as possible, with a
showing that the offering party had good cause for failing to so submit
or identify at the prehearing conference. If the presiding officer
determines that good cause does exist, the documents or affidavits shall
be submitted or witnesses identified to all parties sufficiently in
advance of the offer of such documents or affidavits or witnesses at the
hearing to avoid prejudice or surprise to the other parties. If the
presiding officer determines that good cause does not exist, he may
refuse to admit as evidence such documents or affidavits or the
testimony of such witnesses.
21 CFR 1316.58 Summary of testimony; affidavits.
(a) The presiding officer may direct that summaries of the direct
testimony of witnesses be prepared in writing and served on all parties
in advance of the hearing. Witnesses will not be permitted to read
summaries of their testimony into the record and all witnesses shall be
available for cross-examination. Each witness shall, before proceeding
to testify, be sworn or make affirmation.
(b) Affidavits submitted at the prehearing conference or pursuant to
1316.57 with good cause may be examined by all parties and opposing
affidavits may be submitted to the presiding officer within a period of
time fixed by him. Affidavits admitted into evidence shall be
considered in light of the lack of opportunity for cross-examination in
determining the weight to be attached to statements made therein.
(36 FR 7820, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973)
21 CFR 1316.59 Submission and receipt of evidence.
(a) The presiding officer shall admit only evidence that is
competent, relevant, material and not unduly repetitious.
(b) Opinion testimony shall be admitted when the presiding officer is
satisfied that the witness is properly qualified.
(c) The authenticity of all documents submitted in advance shall be
deemed admitted unless written objection thereto is filed with the
presiding officer, except that a party will be permitted to challenge
such authenticity at a later time upon a showing of good cause for
failure to have filed such written objection.
(d) Samples, if otherwise admissible into evidence, may be displayed
at the hearing and may be described for purposes of the record, or may
be admitted in evidence as exhibits.
(e) Where official notice is taken or is to be taken of a material
fact not appearing in the evidence of record, any party, on timely
request, shall be afforded opportunity to controvert such fact.
(f) The presiding officer shall file as exhibits copies of the
following documents:
(1) The order to show cause or notice of hearing;
(2) Any notice of waiver or modification of rules made pursuant to
1316.44 or otherwise;
(3) Any waiver of hearing (together with any statement filed
therewith) filed pursuant to 1316.49 or otherwise;
(4) The prehearing ruling, if any, made pursuant to 1316.55;
(5) Any other document necessary to show the basis for the hearing.
21 CFR 1316.60 Objections; offer of proof.
If any party in the hearing objects to the admission or rejection of
any evidence or to other limitation of the scope of any examination or
cross-examination, he shall state briefly the grounds for such objection
without extended argument or debate thereon except as permitted by the
presiding officer. A ruling of the presiding officer on any such
objection shall be a part of the transcript together with such offer of
proof as has been made if a proper foundation has been laid for its
admission. An offer of proof made in connection with an objection taken
to any ruling of the presiding officer rejecting or excluding proffered
oral testimony shall consist of a statement of the substance of the
evidence which the party contends would be adduced by such testimony;
and, if the excluded evidence consists of evidence in documentary or
written form a copy of such evidence shall be marked for identification
and shall accompany the records as the offer of proof.
21 CFR 1316.61 Exceptions to rulings.
Exceptions to rulings of the presiding officer are unnecessary. It
is sufficient that a party, at the time the ruling of the presiding
officer is sought, makes known the action that he desires the presiding
officer to take, or his objection to an action taken, and his grounds
therefor.
21 CFR 1316.62 Appeal from ruling of presiding officer.
Rulings of the presiding officer may not be appealed to the
Administrator prior to his consideration of the entire hearing, except
with the consent of the presiding officer and where he certifies on the
record or in writing that the allowance of an interlocutory appeal is
clearly necessary to prevent exceptional delay, expense, or prejudice to
any party or substantial detriment to the public interest. If an appeal
is allowed, any party in the hearing may file a brief in quintuplicate
with the Administrator within such period that the presiding officer
directs. No oral argument will be heard unless the Administrator
directs otherwise.
21 CFR 1316.63 Official transcript; index; corrections.
(a) Testimony given at a hearing shall be reported verbatim. The
Administration will make provision for a stenographic record of the
testimony and for such copies of the transcript thereof as it requires
for its own purpose.
(b) At the close of the hearing, the presiding officer shall afford
the parties and witnesses time (not longer than 30 days, except in
unusual cases) in which to submit written proposed corrections of the
transcript, pointing out errors that may have been made in transcribing
the testimony. The presiding officer shall promptly thereafter order
such corrections made as in his judgment are required to make the
transcript conform to the testimony.
(36 FR 7820, Apr. 24, 1971, as amended at 36 FR 13387, July 21, 1971.
Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 50 FR 2046,
Jan. 15, 1985)
21 CFR 1316.64 Proposed findings of fact and conclusions of law.
Any party in the hearing may file in quintuplicate proposed findings
of fact and conclusions of law within the time fixed by the presiding
officer. Any party so filing shall also serve one copy of his proposed
findings and conclusion upon each other party in the hearing. The party
shall include a statement of supporting reasons for the proposed
findings and conclusions, together with evidence of record (including
specific and complete citations of the pages of the transcript and
exhibits) and citations of authorities relied upon.
21 CFR 1316.65 Report and record.
(a) As soon as practicable after the time for the parties to file
proposed findings of fact and conclusions of law has expired, the
presiding officer shall prepare a report containing the following:
(1) His recommended rulings on the proposed findings of fact and
conclusions of law;
(2) His recommended findings of fact and conclusions of law, with the
reasons therefore; and
(3) His recommended decision.
(b) The presiding officer shall serve a copy of his report upon each
party in the hearing. The report shall be considered to have been
served when it is mailed to such party or its attorney of record.
(c) Not less than twenty-five days after the date on which he caused
copies of his report to be served upon the parties, the presiding
officer shall certify to the Administrator the record, which shall
contain the transcript of testimony, exhibits, the findings of fact and
conclusions of law proposed by the parties, the presiding officer's
report, and any exceptions thereto which may have been filed by the
parties.
(36 FR 7778, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973 and amended at 44 FR 55332, Sept. 26, 1979)
21 CFR 1316.66 Exceptions.
(a) Within twenty days after the date upon which a party is served a
copy of the report of the presiding officer, such party may file with
the Hearing Clerk, Office of the Administrative Law Judge, exceptions to
the recommended decision, findings of fact and conclusions of law
contained in the report. The party shall include a statement of
supporting reasons for such exceptions, together with evidence of record
(including specific and complete citations of the pages of the
transcript and exhibits) and citations of the authorities relied upon.
(b) The Hearing Clerk shall cause such filings to become part of the
record of the proceeding.
(c) The Administrative Law Judge may, upon the request of any party
to a proceeding, grant time beyond the twenty days provided in paragraph
(a) of this section for the filing of a response to the exceptions filed
by another party if he determines that no party in the hearing will be
unduly prejudiced and that the ends of justice will be served thereby.
Provided however, that each party shall be entitled to only one filing
under this section; that is, either a set of exceptions or a response
thereto.
(44 FR 55332, Sept. 26, 1979)
21 CFR 1316.67 Final order.
As soon as practicable after the presiding officer has certified the
record to the Administrator, the Administrator shall cause to be
published in the Federal Register his final order in the proceeding,
which shall set forth the final rule and the findings of fact and
conclusions of law upon which the rule is based. This order shall
specify the date on which it shall take effect, which date shall not be
less than 30 days from the date of publication in the Federal Register
unless the Administrator finds that the public interest in the matter
necessitates an earlier effective date, in which event the Administrator
shall specify in the order his findings as to the conditions which led
him to conclude that an earlier effective date was required.
(44 FR 42179, July 19, 1979, as amended at 44 FR 55332, Sept. 26,
1979)
21 CFR 1316.68 Copies of petitions for judicial review.
Copies of petitions for judicial review, filed pursuant to section
507 of the Act (21 U.S.C. 877) shall be delivered to and served upon the
Administrator in quintuplicate. The Administrator shall certify the
record of the hearing and shall file the certified record in the
appropriate U.S. Court of Appeals.
(36 FR 7820, Apr. 24, 1971. Redesignated at 44 FR 42179, July 19,
1979)
21 CFR 1316.68 Subpart E -- Seizure, Forfeiture, and Disposition of
Property
Authority: 21 U.S.C 871(b), 881, 965, 19 U.S.C. 1606, 1607, 1608,
1610, 1613, 1618, 28 U.S.C. 509, 510.
21 CFR 1316.71 Definitions.
As used in this subpart, the following terms shall have the meanings
specified:
(a) The term Act means the Controlled Substances Act (84 Stat. 1242;
21 U.S.C. 801) and/or the Controlled Substances Import and Export Act
(84 Stat. 1285; 21 U.S.C. 951).
(b) The term custodian means the officer required under 1316.72 to
take custody of particular property which has been seized pursuant to
the Act.
(c) The term property means a controlled substance, raw material,
product, container, equipment, money or other asset, vessel, vehicle, or
aircraft within the scope of the Act.
(d) The terms seizing officer, officer seizing, etc., mean any
officer, authorized and designated by 1316.72 to carry out the
provisions of the Act, who initially seizes property or adopts a seizure
initially made by any other officer or by a private person.
(e) The term Special Agents-in-Charge means Drug Enforcement
Administration Special Agents-in-Charge or Resident Agents in Charge and
Federal Bureau of Investigation Special Agents-in-Charge.
(f) Any term not defined in this section shall have the definition
set forth in sections 102 and 1001 of the Act (21 U.S.C. 802 and 951)
and in 1301.02 of this chapter.
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 45 FR 20096, Mar. 27, 1980; 47 FR 43370, Oct. 1,
1982; 49 FR 28701, July 16, 1984)
21 CFR 1316.72 Officers who will make seizures.
For the purpose of carrying out the provisions of the Act, all
special agents of the Drug Enforcement Administration and the Federal
Bureau of Investigation are authorized and designated to seize such
property as may be subject to seizure.
(47 FR 43370, Oct. 1, 1982)
21 CFR 1316.73 Custody and other duties.
An officer seizing property under the Act shall store the property in
a location designated by the custodian, generally in the judicial
district of seizure. The Special Agents-in-Charge are designated as
custodians to receive and maintain in storage all property seized
pursuant to the Act, are authorized to dispose of any property pursuant
to the Act and any other applicable statutes or regulations relative to
disposal, and to perform such other duties regarding such seized
property as are appropriate, including the impound release of property
pursuant to 28 CFR 0.101(c).
(47 FR 43370, Oct. 1, 1982)
21 CFR 1316.74 Appraisement.
The custodian shall appraise the property to determine the domestic
value at the time and place of seizure. The domestic value shall be
considered the price at which such or similar property is freely offered
for sale. If there is no market for the property at the place of
seizure, the domestic value shall be considered the value in the
principal market nearest the place of seizure.
(Sec. 606, 46 Stat. 754 (19 U.S.C. 1606))
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 52 FR 41418, Oct. 28, 1987)
21 CFR 1316.75 Advertisement.
(a) If the appraised value does not exceed the monetary amount set
forth in title 19, United States Code, Section 1607; the seized
merchandise is any monetary instrument within the meaning of section
5312(a)(3) of title 31 of the United States Code; or if a conveyance
used to import, export or otherwise transport or store any controlled
substance is involved, the custodian or DEA Asset Forfeiture Section
shall cause a notice of the seizure and of the intention to forfeit and
sell or otherwise dispose of the property to be published once a week
for at least 3 successive weeks in a newspaper of general circulation in
the judicial district in which the processing for forfeiture is brought.
(b) The notice shall: (1) Describe the property seized and show the
motor and serial numbers, if any; (2) state the time, cause, and place
of seizure; and (3) state that any person desiring to claim the
property may, within 20 days from the date of first publication of the
notice, file with the custodian or DEA Asset Forfeiture Section a claim
to the property and a bond with satisfactory sureties in the sum of
$5,000 or ten percent of the value of the claimed property whichever is
lower, but not less than $250.
(Sec. 607, 46 Stat. 754, as amended (19 U.S.C. 1607); Pub. L.
98-473, Pub. L. 98-573)
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973 and amended at 44 FR 56324, Oct. 1, 1979; 49 FR 1178, Jan. 10,
1984; 49 FR 50643, Dec. 31, 1984; 52 FR 24446, July 1, 1987; 56 FR
8686, Mar. 1, 1991)
21 CFR 1316.76 Requirements as to claim and bond.
(a) The bond shall be rendered to the United States, with sureties to
be approved by the custodian or DEA Asset Forfeiture Section,
conditioned that in the case of condemnation of the property the obligor
shall pay all costs and expenses of the proceedings to obtain such
condemnation. When the claim and bond are received by the custodian or
DEA Asset Forfeiture Section, he shall, after finding the documents in
proper form and the sureties satisfactory, transmit the documents,
together with a description of the property and a complete statement of
the facts and circumstances surrounding the seizure, to the United
States Attorney for the judicial district in which the proceeding for
forfeiture is brought. If the documents are not in satisfactory
condition when first received, a reasonable time for correction may be
allowed. If correction is not made within a reasonable time the
documents may be treated as nugatory, and the case shall proceed as
though they had not been tendered.
(b) The filing of the claim and the posting of the bond does not
entitle the claimant to possession of the property, however, it does
stop the administrative forfeiture proceedings. The bond posted to
cover costs may be in cash, certified check, or satisfactory sureties.
The costs and expenses secured by the bond are such as are incurred
after the filing of the bond including storage cost, safeguarding, court
fees, marshal's costs, etc.
(Sec. 608, 46 Stat. 755 (19 U.S.C. 1608); Pub. L. 98-473, Pub. L.
98-573)
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973 and amended at 49 FR 1178, Jan. 10, 1984; 49 FR 50643, Dec. 31,
1984; 56 FR 8686, Mar. 1, 1991)
21 CFR 1316.77 Administrative forfeiture.
(a) For property seized by officers of the Drug Enforcement
Administration, if the appraised value does not exceed the
jurisdictional limits in 1316.75(a), and a claim and bond are not filed
within the 20 days hereinbefore mentioned, the DEA Special
Agent-in-Charge or DEA Asset Forfeiture Section shall declare the
property forfeited. The DEA Special Agent-in-Charge or DEA Asset
Forfeiture Section shall prepare the Declaration of Forfeiture and
foward it to the Administrator of the Administration as notification of
the action he has taken. Thereafter, the property shall be retained in
the district of the DEA Special Agent-in-Charge or DEA Asset Forfeiture
Section or delivered elsewhere for official use, or otherwise disposed
of, in accordance with official instructions received by the DEA Special
Agent-in-Charge or DEA Asset Forfeiture Section.
(b) For property seized by officers of the Federal Bureau of
Investigation, if the appraised value does not exceed the jurisdictional
limits in 1316.75(a), and a claim and bond are not filed within the 20
days hereinbefore mentioned, the FBI Property Management Officer shall
declare the property forfeited. The FBI Property Management Officer
shall prepare the Declaration of Forfeiture. Thereafter, the property
shall be retained in the field office or delivered elsewhere for
official use, or otherwise disposed of, in accordance with the official
instructions of the FBI Property Management Officer.
(28 U.S.C. 509 and 510; 21 U.S.C. 871 and 881(d); Pub. L. 98-473,
Pub. L. 98-573)
(48 FR 35087, Aug. 3, 1983, as amended at 49 FR 1178, Jan. 10, 1984;
49 FR 50643, Dec. 31, 1984; 56 FR 8686, Mar. 1, 1991)
21 CFR 1316.78 Judicial forfeiture.
If the appraised value is greater than the jurisdictional limits in
1316.75(a) or a claim and satisfactory bond have been received for
property the jurisdictional limits in 1316.76, the custodian or DEA
Asset Forfeiture Section shall transmit a description of the property
and a complete statement of the facts and circumstances surrounding the
seizure to the U.S. Attorney for the judicial district in which the
proceeding for forfeiture is sought for the purpose of instituting
condemnation proceedings. The U.S. Attorney shall also be furnished the
newspaper advertisements required by 1316.75. The Forfeiture Counsel of
DEA shall make applications to the U.S. District Courts to place
property in official DEA use.
(Sec. 610, 46 Stat. 755 (19 U.S.C. 1610); Pub. L. 98-473, Pub. L.
98-573)
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973 and amended at 44 FR 56324, Oct. 1, 1979; 49 FR 1178, Jan. 10,
1984; 49 FR 32174, Aug. 13, 1984; 49 FR 50643, Dec. 31, 1984; 56 FR
8686, Mar. 1, 1991)
21 CFR 1316.79 Petitions for remission or mitigation of forfeiture.
(a) Any person interested in any property which has been seized, or
forfeited either administratively or by court proceedings, may file a
petition for remission or mitigation of the forfeiture. Such petition
shall be filed in triplicate with the DEA Asset Forfeiture Section or
Special Agent-in-Charge of the DEA or FBI, depending upon which agency
seized the property, for the judicial district in which the proceeding
for forfeiture is brought. It shall be addressed to the Director of the
FBI or the Administrator of the DEA, depending upon which agency seized
the property, if the property is subject to administrative forfeiture
pursuant to 1316.77, and addressed to the Attorney General if the
property is subject to judicial forfeiture pursuant to 1316.78. The
petition must be executed and sworn to by the person alleging interest
in the property.
(b) The petition shall include the following: (1) A complete
description of the property, including motor and serial numbers, if any,
and the date and place of seizure; (2) the petitioner's interest in the
property, which shall be supported by bills of sale, contracts,
mortgages, or other satisfactory documentary evidence; and, (3) the
facts and circumstances, to be established by satisfactory proof, relied
upon by the petitioner to justify remission or mitigation.
(c) Where the petition is for restoration of the proceeds of sale, or
for value of the property placed in official use, it must be supported
by satisfactory proof that the petitioner did not know of the seizure
prior to the declaration of condemnation of forfeiture and was in such
circumstances as prevented him from knowing of the same.
(Secs. 613, 618, 46 Stat. 756, 757, as amended (19 U.S.C. 1613, 1618;
28 U.S.C. 509 and 510; 21 U.S.C. 871 and 881(d)); Pub. L. 98-473,
Pub. L. 98-573)
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 48 FR 35088, Aug. 3, 1983; 49 FR 1178, Jan. 10,
1984; 49 FR 50643, Dec. 31, 1984; 56 FR 8686, Mar. 1, 1991)
21 CFR 1316.80 Time for filing petitions.
(a) In order to be considered as seasonably filed, a petition for
remission or mitigation of forfeiture should be filed within 30 days of
the receipt of the notice of seizure. If a petition for remission or
mitigation of forfeiture has not been received within 30 days of the
notice of seizure, the property will either be placed in official
service or sold as soon as it is forfeited. Once property is placed in
official use, or is sold, a petition for remission or mitigation of
forfeiture can no longer be accepted.
(b) A petition for restoration of proceeds of sale, or for the value
of property placed in official use, must be filed within 90 days of the
sale of the property, or within 90 days of the date the property is
placed in official use.
(Secs. 613, 618, 46 Stat. 756, 757, as amended (19 U.S.C. 1613,
1618); Pub. L. 98-473, Pub. L. 98-573)
(36 FR 7820, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24,
1973, and amended at 49 FR 50643, Dec. 31, 1984)
21 CFR 1316.81 Handling of petitions.
Upon receipt of a petition, the custodian or DEA Asset Forfeiture
System shall request an appropriate investigation. The petition and the
report of investigation shall be forwarded to the Director of the FBI or
to the Administrator of the DEA, depending upon which agency seized the
property. If the petition involves a case which has been referred to
the U.S. Attorney for the institution of court proceedings, the
custodian or DEA Asset Forfeiture System shall transmit the petition to
the U.S. Attorney for the judicial district in which the proceeeding for
forfeiture is brought. He shall notify the petitioner of this action.
(28 U.S.C. 509 and 510; 21 U.S.C. 871 and 881(d); Pub. L. 98-473,
Pub. L. 98-573)
(48 FR 35088, Aug. 3, 1983, as amended at 49 FR 1178, Jan. 10, 1984;
49 FR 50643, Dec. 31, 1984; 56 FR 8686, Mar. 1, 1991)
21 CFR 1316.81 Subpart F -- Expedited Forfeiture Proceedings for
Certain Property
Authority: 21 U.S.C. 822, 871, 872, 880, 881, 881-1, 883, 958, 965;
19 U.S.C. 1606, 1607, 1608, 1610, 1613, 1618; 28 U.S.C. 509, 510; Pub.
L. No. 100-690, sec. 6079, 6080.
Source: 54 FR 37610, Sept. 11, 1989, unless otherwise noted.
21 CFR 1316.90 Purpose and scope.
(a) The following definitions, regulations, and criteria are designed
to establish and implement procedures required by sections 6079 and 6080
of the Anti-Drug Abuse Act of 1988, Public Law No. 100-690 (102 Stat.
4181). They are intended to supplement existing law and procedures
relative to the forfeiture of property under the identified statutory
authority. The provisions of these regulations do not affect the
existing legal and equitable rights and remedies of those with an
interest in property seized for forfeiture, nor do these provisions
relieve interested parties from their existing obligations and
responsibilities in pursuing their interests through such courses of
action. These regulations are intended to reflect the intent of
Congress to minimize the adverse impact on those entitled to legal or
equitable relief occasioned by the prolonged detention of property
subject to forfeiture due to violations of law involving personal use
quantities of controlled substances, and conveyances seized for
drug-related offenses. The definition of personal use quantities of a
controlled substance as contained herein is intended to distinguish
between those quantities small in amount which are generally considered
to be possessed for personal consumption and not for further
distribution, and those larger quantities generally considered to be
subject to further distribution.
(b) In this regard, for violations involving the possession of
personal use quantities of a controlled substance, section 6079(b)(2)
requires either that administrative forfeiture be completed within 21
days of the seizure of the property, or alternatively, that procedures
are established that provide a means by which an individual entitled to
relief may initiate an expedited administrative review of the legal and
factual basis of the seizure for forfeiture. Should an individual
request relief pursuant to these regulations and be entitled to the
return of the seized property, such property shall be returned
immediately following that determination, and the administrative
forfeiture process shall cease. Should the individual not be entitled
to the return of the seized property, however, the administrative
forfeiture of that property shall proceed. The owner may, in any event,
obtain release of property pending the administrative forfeiture by
submitting to the agency making the determination, property sufficient
to preserve the government's vested interest for purposes of the
administrative forfeiture.
(c) Section 6080 requires a similar expedited review by the Attorney
General or his representative in those instances where a conveyance is
being forfeited in a civil judicial proceeding following its seizure for
a drug-related offense.
21 CFR 1316.91 Definitions.
As used in this subpart, the following terms shall have the meanings
specified:
(a) The term Appraised Value means the estimated domestic price at
the time of seizure at which such or similar property is freely offered
for sale.
(b) The term Commercial Fishing Industry Vessel means a vessel that:
(1) Commercially engages in the catching, taking, or harvesting of
fish or an activity that can reasonably be expected to result in the
catching, taking, or harvesting of fish;
(2) Commercially prepares fish or fish products other than by
gutting, decapitating, gilling, skinning, shucking, icing, freezing, or
brine chilling; or
(3) Commercially supplies, stores, refrigerates, or transports fish,
fish products, or materials directly related to fishing or the
preparation of fish to or from a fishing, fish processing, or fish
tender vessel or fish processing facility.
(c) The term Controlled Substance has the meaning given in section
802 of title 21, United States Code (U.S.C.).
(d) The term Drug-Related Offense means any proscribed offense which
involves the possession, distribution, manufacture, cultivation, sale,
transfer, or the attempt or conspiracy to possess, distribute,
manufacture, cultivate, sell or transfer any substance the possession of
which is prohibited by Title 21, U.S.C.
(e) The term Immediately means within 20 days of the filing of a
petition for expedited release by an owner.
(f) The term Interested Party means one who was in legal possession
of the property at the time of seizure and is entitled to legal
possession at the time of the granting of the petition for expedited
release. This includes a lienholder (to the extent of his interest in
the property) whose claim is in writing (except for a maritime lien
which need not be in writing), unless the collateral is in the
possession of the secured party. The agreement securing such lien must
create or provide for a security interest in the collateral, describe
the collateral, and be signed by the debtor.
(g) The term Legal and Factual Basis of the Seizure means a statement
of the applicable law under which the property is seized, and a
statement of the circumstances of the seizure sufficiently precise to
enable an owner or other interested party to identify the date, place,
and use or acquisition which makes the property subject to forfeiture.
(h) The term Normal and Customary Manner means that inquiry suggested
by particular facts and circumstances which would customarily be
undertaken by a reasonably prudent individual in a like or similar
situation. Actual knowledge of such facts and circumstances is
unnecessary, and implied, imputed, or constructive knowledge is
sufficient. An established norm, standard, or custom is persuasive but
not conclusive or controlling in determining whether an owner acted in a
normal and customary manner to ascertain how property would be used by
another legally in possession of the property. The failure to act in a
normal and customary manner as defined herein will result in the denial
of a petition for expedited release of the property and is intended to
have the desirable effect of inducing owners of the property to exercise
greater care in transferring possession of their property.
(i) The term Owner means one having a legal and possessory interest
in the property seized for forfeiture. Even though one may hold primary
and direct title to the property seized, such person may not have
sufficient actual beneficial interest in the property to support a
petition as owner if the facts indicate that another person had dominion
and control over the property.
(j) The term Personal Use Quantities means possession of controlled
substances in circumstances where there is no other evidence of an
intent to distribute, of to facilitate the manufacturing, compounding,
processing, delivering, importing or exporting of any controlled
substance. Evidence of personal use quantities shall not include
sweepings or other evidence of possession of quantities of a controlled
substance for other than personal use.
(1) Such other evidence shall include:
(i) Evidence, such as drug scales, drug distribution paraphernalia,
drug records, drug packaging material, method of drug packaging, drug
''cutting'' agents and other equipment, that indicates an intent to
process, package or distribute a controlled substance;
(ii) Information from reliable sources indicating possession of a
controlled substance with intent to distribute;
(iii) The arrest and/or conviction record of the person or persons in
actual or constructive possession of the controlled substance for
offenses under Federal, State or local law that indicates an intent to
distribute a controlled substance;
(iv) The controlled substance is related to large amounts of cash or
any amount of prerecorded government funds;
(v) The controlled substance is possessed under circumstances that
indicate such a controlled substance is a sample intended for
distribution in anticipation of a transaction involving large
quantities, or is part of a larger delivery; or
(vi) Statements by the possessor, or otherwise attributable to the
possessor, including statements of conspirators, that indicate
possession with intent to distribute.
(2) Possession of a controlled substance shall be presumed to be for
personal use when there are no indicia of illicit drug trafficking or
distribution such as, but not limited to, the factors listed above and
the amounts do not exceed the following quantities:
(i) One gram of a mixture of substance containing a detectable amount
of heroin;
(ii) One gram of a mixture or substance containing a detectable
amount of --
(A) Coca leaves, except coca leaves and extracts of coca leaves from
which cocaine, ecgonine, and derivations of ecgonine or their salts have
been removed;
(B) Cocaine, its salts, optical and geometric isomers, and salts of
isomers;
(C) Ecgonine, its derivatives, their salts, isomers, and salts of
isomers; or
(D) Any compound, mixture or preparation which contains any quantity
of any of the substances referred to in paragraphs (j)(2)(ii)(A) through
(j)(2)(ii)(C) of this section;
(iii) 1/10th gram of a mixture or substance described in paragraph
(j)(2)(ii) of this section which contains cocaine base;
(iv) 1/10th gram of a mixture or substance containing a detectable
amount of phencyclidine (PCP);
(v) 500 micrograms of a mixture or substance containing a detectable
amount of lysergic acid diethylamide (LSD);
(vi) One ounce of a mixture of substance containing a detectable
amount of marihuana;
(vii) One gram of methamphetamine, its salts, isomers, and salts of
its isomers, or one gram of a mixture or substance containing a
detectable amount of methamphetamine, its salts, isomers, or salts of
its isomers.
(3) The possession of a narcotic, a depressant, a stimulant, a
hallucinogen or cannabis-controlled substance will be considered in
excess of personal use quantities if the dosage unit amount possessed
provides the same or greater equivalent efficacy as described in
paragraph (j)(2) of this section.
(k) The term Property means property subject to forfeiture under
title 21, U.S.C., sections 881(a) (4), (6), and (7); title 19, U.S.C.,
section 1595a, and; title 49, U.S.C. App., section 782.
(l) The term Seizing Agency means the Federal agency which has seized
the property or adopted the seizure of another agency, and has the
responsibility for administratively forfeiting the property;
(m) The term Statutory Rights or Defenses to the Forfeiture means all
legal and equitable rights and remedies available to a claimant of
property seized for forfeiture.
(n) The term Sworn to as used in 1316.92(e) and 1316.95(c) refers
to the oath as provided by Title 28, U.S.C., section 1746.
21 CFR 1316.92 Petition for expedited release in an administrative
forfeiture action.
(a) Where property is seized for administrative forfeiture involving
controlled substances in personal use quantities the owner may petition
the seizing agency for expedited release of the property.
(b) Where property described in paragraph (a) of this section is a
commercial fishing industry vessel proceeding to or from a fishing area
or intermediate port of call or actually engaged in fishing operations,
which would be subject to seizure for administrative forfeiture for a
violation of law involving controlled substances in personal use
quantities, a summons to appear shall be issued in lieu of a physical
seizure. The vessel shall report to the port designated in the summons.
The seizing agency shall be authorized to effect administrative
forfeiture as if the vessel had been physically seized. Upon answering
the summons to appear on or prior to the last reporting date specified
in the summons, the owner of the vessel may file a petition for
expedited release pursuant to paragraph (a) of this section and the
provisions of paragraph (a) of this section and other provisions in this
subpart pertaining to a petition for expedited release shall apply as if
the vessel had been physically seized.
(c) The owner filing the petition for expedited release shall
establish the following:
(1) The owner has a valid, good faith interest in the seized property
as owner or otherwise;
(2) The owner reasonably attempted to ascertain the use of the
property in a normal and customary manner; and
(3) The owner did not know or consent to the illegal use of the
property, or in the event that the owner knew or should have known of
the illegal use, the owner did what reasonably could be expected to
prevent the violation.
(d) In addition to those factors listed in paragraph (c) of this
section, if an owner can demonstrate that the owner has other statutory
rights or defenses that would cause the owner to prevail on the issue of
forfeiture, such factors shall also be considered in ruling on the
petition for expedited release.
(e) A petition for expedited release must be filed in a timely manner
to be considered by the seizing agency. In order to be filed in a
timely manner, the petition must be received by the appropriate seizing
agency within 20 days from the date of the first publication of the
notice of seizure. The petition must be executed and sworn to by the
owner and both the envelope and the request must be clearly marked
''PETITION FOR EXPEDITED RELEASE.'' Such petition shall be filed in
triplicate with the Special Agent in Charge of the Drug Enforcement
Administration (DEA) or Federal Bureau of Investigation (FBI) field
office in the judicial district in which the property was seized,
depending upon which agency seized the property. The petition shall be
addressed to the Director of the FBI or to the Administrator of the DEA,
depending upon which agency seized the property.
(f) The petition shall include the following:
(1) A complete description of the property, including identification
numbers, if any, and the date and place of seizure;
(2) The petitioner's interest in the property, which shall be
supported by title documentation, bills of sale, contracts, mortgages,
or other satisfactory documentary evidence; and
(3) A statement of the facts and circumstances, to be established by
satisfactory proof, relied upon by the petitioner to justify expedited
release of the seized property.
21 CFR 1316.93 Ruling on petition for expedited release in an
administrative forfeiture action.
(a) Upon receipt of a petition for expedited release filed pursuant
to 1316.92(a), the seizing agency shall determine first whether a final
administrative determination of the case, without regard to the
provisions of this subpart, can be made within 21 days of the seizure.
If such a final administrative determination is made within 21 days, no
further action need be taken under this subpart.
(b) If no such final administrative determination is made within 21
days of the seizure, the following procedure shall apply. The seizing
agency shall, within 20 days after the receipt of the petition for
expedited release, determine whether the petition filed by the owner has
established the factors listed in 1316.92(c) and:
(1) If the seizing agency determines that those factors have been
established, it shall terminate the administrative proceedings and
return the property to the owner (or in the case of a commercial fishing
industry vessel for which a summons has been issued shall dismiss the
summons), except where it is evidence of a violation of law; or
(2) If the seizing agency determines that those factors have not been
established, the agency shall proceed with the administrative
forfeiture.
21 CFR 1316.94 Posting of substitute res in an administrative
forfeiture action.
(a) Where property is seized for administrative forfeiture involving
controlled substances in personal use quantities, the owner may obtain
release of the property by posting a substitute res with the seizing
agency. The property will be released to the owner upon the payment of
an amount equal to the appraised value of the property if it is not
evidence of a violation of law or has design or other characteristics
that particularly suit it for use in illegal activities. This payment
must be in the form of a traveler's check, a money order, a cashier's
check or an irrevocable letter of credit made payable to the seizing
agency. A bond in the form of a cashier's check will be considered as
paid once the check has been accepted for payment by the financial
institution which issued the check.
(b) If a substitute res is posted and the property is
administratively forfeited, the seizing agency will forfeit the
substitute res in lieu of the property.
21 CFR 1316.95 Petition for expedited release of a conveyance in a
judicial forfeiture action.
(a) Where a conveyance has been seized and is being forfeited in a
judicial proceeding for a drug-related offense, the owner may petition
the United States Attorney for an expedited release of the conveyance.
(b) The owner filing the petition for expedited release shall
establish the following:
(1) The owner has a valid, good faith interest in the seized
conveyance as owner or otherwise;
(2) The owner has statutory rights or defenses that would show to a
substantial probability that the owner would prevail on the issue of
forfeiture;
(3) The owner reasonably attempted to ascertain the use of the
conveyance in a normal and customary manner; and
(4) The owner did not know or consent to the illegal use of the
conveyance; or in the event that the owner knew or should have known of
the illegal use, the owner did what reasonably could be expected to
prevent the violation.
(c) A petition for expedited release must be filed in a timely manner
in order to be considered by the United States Attorney. To be
considered as filed in a timely manner, the petition must be received by
the appropriate United States Attorney within 20 days from the date of
the first publication of the notice of the action and arrest of the
property, or within 30 days after filing of the claim, whichever occurs
later. The petition must be executed and sworn to by the owner, and
both the envelope and the request must be clearly marked ''PETITION FOR
EXPEDITED RELEASE.'' Such petition shall be filed in triplicate and
addressed to and filed with the United States Attorney prosecuting the
conveyance for forfeiture with a copy to the seizing agency.
(d) The petition shall include the following:
(1) A complete description of the conveyance, including the
identification number, and the date and place of seizure;
(2) The petitioner's interest in the conveyance, which shall be
supported by bills of sale, contracts, mortgages, or other satisfactory
documentary evidence; and,
(3) The facts and circumstances, to be established by satisfactory
proof, relied upon by the petitioner to justify expedited release of the
seized conveyance.
21 CFR 1316.96 Ruling on a petition for expedited release of a
conveyance in a judicial forfeiture action.
(a) Upon receipt of a petition for expedited release filed pursuant
to 1316.95, the United States Attorney shall rule on the petition
within 20 days of receipt. A petition shall be deemed filed on the date
it is received by the United States Attorney.
(b) If the United States Attorney does not rule on the petition for
expedited release within 20 days after the date on which it is filed,
the conveyance shall be returned to the owner or interested party
pending further forfeiture proceedings, except where it is evidence of a
violation of law. Release of conveyance under provisions of this
paragraph shall not affect the forfeiture action with respect to that
conveyance.
(c) Upon a favorable ruling on the petition for expedited release,
the United States Attorney shall, where necessary, move to terminate the
judicial proceedings against the conveyance and immediately direct the
return of the conveyance except where it is evidence of a violation of
law.
(d) If, within 20 days, the United States Attorney denies the
petition for expedited release, the government shall retain possession
of the conveyance until the owner provides a substitute res bond
pursuant to 1316.98 or the forfeiture is finalized.
21 CFR 1316.97 Initiating judicial forfeiture proceeding against a
conveyance within 60 days of the filing of a claim and cost bond.
(a) The United States Attorney shall file a complaint for forfeiture
of the conveyance within 60 days of the filing of the claim and cost
bond.
(b) Upon the failure of the United States Attorney to file a
complaint for forfeiture of a conveyance within 60 days unless the court
extends the 60-day period following a showing of good cause, or unless
the owner and the United States Attorney agree to such an extension, the
court shall order the return of the conveyance and the return of any
bond.
21 CFR 1316.98 Substitute res bond in a judicial forfeiture action
against a conveyance.
(a) Where a conveyance is being forfeited in a judicial proceeding
for a drug-related offense, the owner may obtain release of the property
by filing a substitute res bond with the seizing agency. The conveyance
will be released to the owner upon the payment of a bond in the amount
of the appraised value of the conveyance if it is not evidence of a
violation of law or has design or other characteristics that
particularly suit it for use in illegal activities. This bond must be
in the form of a traveler's check, a money order, a cashier's check or
an irrevocable letter of credit made payable to the Department of
Justice or to the United States Customs Service depending on which
agency seized the conveyance. A bond in the form of a cashier's check
will be considered as paid once the check has been accepted for payment
by the financial institution which issued the check.
(b) If a substitute res bond is filed and the conveyance is
judicially forfeited, the court will forfeit the bond in lieu of the
property.
21 CFR 1316.99 Notice provisions.
(a) Special notice provision. At the time of seizure of property
defined in 1316.91 for violations involving the possession of personal
use quantities of a controlled substance and conveyances seized pursuant
to 1316.95, written notice must be provided to the possessor of the
property regarding applicable statutes and Federal regulations including
the procedures established for the filing of a petition for expedited
release and for the posting of a substitute res bond as set forth in
sections 6079 and 6080 of the Anti-Drug Abuse Act of 1988 and
implementing regulations.
(b) Standard notice provision. The standard notice to the owner as
required by title 19, U.S.C., section 1607 and applicable regulations,
shall be made at the earliest practicable opportunity after determining
ownership of the seized property or conveyance and shall include the
legal and factual basis of the seizure.
21 CFR 1316.99 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.
21 CFR 1316.99 Table of CFR Titles and Chapters
21 CFR 1316.99 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)
21 CFR 1316.99 Title 2 -- (Reserved)
21 CFR 1316.99 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 Title 6 -- Economic Stabilization (Reserved)
21 CFR 1316.99 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)
21 CFR 1316.99 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
21 CFR 1316.99 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 Thrift Depositor Protection Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
21 CFR 1316.99 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
21 CFR 1316.99 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
21 CFR 1316.99 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
21 CFR 1316.99 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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, Administration for Children and
Families 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 (Parts
2200 -- 2299)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400 --
2499)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 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)
21 CFR 1316.99 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Table of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
21 CFR 1316.99 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
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
Office of Navajo and Hopi Indian Relocation 25, IV
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
21 CFR 1316.99 21 CFR (4-1-92 Edition)
21 CFR 1316.99 List of CFR Sections Affected
21 CFR 1316.99 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.
21 CFR 1316.99 1986
21 CFR
51 FR
Page
Chapter II
1301.03 Amended 5319
1301.24 (b) amended 5319
1301.26 (e) amended 5319
1301.32 (a)(7), (c) and (f) amended 5319
1301.33 (c) amended 5319
1301.34 (a) amended 5319
1301.61 Amended 5319
1301.64 Removed 5319
1301.71 (d) amended 5319
1302 Authtority citation revised 5319
1303 Authority citation revised 5319
1303.12 (b) and (d) amended 5319
1303.22 Amended 5319
1303.27 Amended 5319
1304.03 (d) amended 5319
(b) corrected 26154
1304.04 (f) and (g) amended 5320
1304.31 Removed; new 1304.31 redesignated from 1304.33 5319
(a) amended 5320
1304.32 Removed; new 1304.32 redesignated from 1304.34 5319
(a) amended 5320
1304.33 Redesignated as 1304.31; new 1304.33 redesignated from
1304.35 5319
1304.34 Redesignated as 1304.32 5319
Redesignated from 1304.37 and amended 5320
(c) redesignated from 1304.36(c) 5320
1304.35 Redesignated as 1304.33 and (a) amended 5319
Redesignated from 1304.38 5320
1304.36 (a) and (b) removed 5319
(c) redesignated as 1304.34(c) 5320
Redesignated from 1304.39 5320
1304.37 Redesignated as 1304.34 and amended; new 1304.37
redesignated from 1304.40 5320
1304.38 Redesignated as 1304.35; new 1304.38 redesignated from
1304.41 5320
1304.39 Redesignated as 1304.36 5320
1304.40 Redesignated as 1304.37 5320
1304.41 (a) amended 5319
Redesignated as 1304.38 5320
1305.03 (c) amended 5320
1305.05 (b) and (d) amended 5319
1305.12 (b) amended 5319
1306 Authority citation revised 5319
1306.15 Amended 5320
1306.23 Amended 5320
1306.25 Amended 5320
1306.31 (a) amended 5320
1307.14 (a) amended 5319
1308.02 (c) revised; (e) and (f) redesignated as (f) and (g); new
(e) added 15317
1308.03 (a) revised 15318
1308.04 (a) amended 5320
1308.11 (g)(13) added 4723
(b)(17) amended 5320
(b)(17) correctly designated 9440
1308.11 (g)(1) effective date extended 15474
(g)(2) effective date extended 21912
(g)(3) and (4) effective date extended 28695
(g)(1) removed; (b)(31) through (46) and (g)(2) through (13)
redesignated as (b)(32) through (47) and (g)(1) through (12); new
(b)(31) added 33593
(d)(7) through (24) redesignated as (d)(8) through (25); new (d)(7)
added; (g)(1) removed; (g)(2) through (12) redesignated as (g)(1)
through (11) 36560
(g)(5) through (12) addition at 50 FR 43700 effective date extended
42834
1308.12 (b)(4) revised 15318
(f) redesignated as (g); new (f) added 17478
1308.13 (e)(3) and (4) amended 5320
1308.14 (c)(3) table revised 10191
1308.24 Amended 5319
1308.52 Added 15318
1311 Authority citation revised 5319
1311.03 Amended 5319
1311.32 (c) and (f) amended 5319
(b) and (c) amended 5320
1311.61 Amended 5319
1311.64 Removed 5320
1312 Authority citation revised 5319
1312.02 (a) amended 5320
1312.12 (a) amended 5319, 5320
1312.14 (a) amended 5319
1312.16 (b) amended 5319
1312.18 (b) amended 5319
1312.19 (a) and (b) amended 5319
1312.22 (a) amended 5319
1312.24 (a) amended 5319
1312.25 Amended 5319
1312.27 (a) amended 5319
1312.28 (c) and (d) amended 5319
1312.31 (b) amended 5319
1312.32 (a) amended 5319
1316 Authority citation revised 5319
1316.03 (d) amended 5319
21 CFR 1316.99 1987
21 CFR
52 FR
Page
Chapter II
1301.11 (c) and (d) revised 20598
1301.12 Revised 20599
1301.22 (a)(10) revised 17287
1301.31 (c) revised; (d) added 20599
1306.22 (a) revised 1904, 3605
Technical correction 13430
1308.11 (g) (1) and (2) removed; (b) (33) through (47) and (g) (3)
through (11) redesignated as (b) (34) through (37) and (b) (39) through
(49) and (g) (1) through (9); (b) (33) and (38) added 2516
(b)(2) removed; (b) (3) through (49) redesignated as (b) (2) through
(48) 2517
(g) designations corrected 6546
(g) temporary placement extended 7270
(b) introductory text revised; (b) (1) through (48) redesignated as
(b) (2) through (7), (9) and (10), (12) through (33), (35) through (40),
(42) through (51), (53) and (54); new (b) (1), (8), (11), (34), (41),
and (52) added; (g) (1), (2), (4), (6), (8), and (9) removed; (g) (3),
(5), and (7) redesignated as (g) (1), (2), and (3) 20072
Technical correction 27198
(g) (4) through (6) added 38226
1308.12 (c) (1) through (23) redesignated as (c) (2) through (24);
new (c)(1) added 2517
(f)(2) added 11043
(f)(2) corrected 12285
1308.13 (c)(12) added 2222
(c)(1)(i), (ii), and (iii) and (2)(i), (ii), and (iii) revised 5952
1308.14 (b)(1) and (2) revised 5952
1308.15 (c)(6) revised 5952
1308.24 (i) table revised; interim 9807
1308.31 -- 1308.32 Undesignated center heading revised; interim 9803
1308.31 Heading, (a), (b) introductory text, and (d) revised; (c)
amended; interim 9803
1308.32 Revised; interim 9803
1311.02 (d) revised 17288
1311.21 Revised 17288
1311.26 Revised 17288
1311.32 (d) revised; (e) and (f) redesignated as (f) and (g); new
(e) added 17288
1311.42 (a), (b)(6) (i) and (iv) revised 17288
1311.44 (a) and (b) revised; (c) through (e) redesignated as (e)
through (g); new (c) and (d) added; new (f) (1) and (2) and (g) (1)
and (2) revised 17288
1311.47 Revised 17289
1311.53 Revised 17289
1311.61 Revised 17289
1312 Authority citation revised 17289
1312.11 (a) and (b) revised 17289
1312.12 (a) introductory text revised 17289
1312.13 (a)(1) revised; (b) through (e) redesignated as (d) through
(g); new (b) and (c) added 17289
1312.18 (a), (b), and (c)(2) revised 17290
1312.21 (a) and (b) revised 17290
1312.22 (a) revised 17290
1312.23 (b) through (d) redesignated as (d) through (f); new (b) and
(c) added .......... 17290
1312.27 (a), (b) (2) and (4) revised; (b)(5) added 17290
1312.28 (d) revised 17291
1312.30 Added 17291
1316.71-1316.81 (Subpart E) Authority citation revised 24446
1316.74 Amended 41418
1316.75 (b)(3) amended 24446
21 CFR 1316.99 1988
21 CFR
53 FR
Page
Chapter II
1301.11 (a) through (f) amended 4963
1301.12 Amended 4963
1301.13 (a) through (c) amended 4963
1301.22 (a)(4) and (b) (5) and (6) amended 4963
1301.32 (a) (1) through (6) and (8), (b) (1) through (9) and (c)
amended 4963
1301.32 (d) revised; (e) and (f) redesignated as (f) and (g); new
(e) added 21813
1301.44 (a) and (b) amended 4963
1301.61 Amended 4963
1303.12 (f) amended 4963
1305.03 Introductory text amended 4963
1305.05 (a) revised; (b) amended 4963
1305.06 (a) and (b) amended 4963
1306.11 (d) introductory text amended 4964
1308.11 (g)(2) removed; (b) (12) through (54) and (g) (3) through
(6) redesignated as (b) (13) through (55) and (g) (2) through (5); new
(b)(12) added 501
(d)(7) removed; (d)(8) through (25) redesignated as (d)(7) through
(24) 2226
(b)(12) correctly revised 3744
(d) (7) through (24) redesignated as (d) (8) through (25); new
(d)(7) added 5158
1308.11 (g)(6) added 29233
(g) temporary scheduling extended 40061
1308.12 (f)(2) corrected; CFR correction 31837
(c) (6) through (24) redesignated as (c) (7) through (25); new
(c)(6) added 43685
1308.14 (e) (1) through (6) redesignated as (e) (2), (5), and (7)
through (10); new (e) (1), (3), (4), and (6) added 17460
1308.15 (d) added 10870
1308.24 (i) table revised 10835, 36152
1308.32 Table revised 10861
1311.11 (a) and (b) amended 4963
1311.12 Revised 4963
1311.32 (a), (b) and (c) amended 4963
1311.43 (a) and (b) amended 4963
1312.14 (a) amended 48244
1312.16 (b) amended 48244
1312.19 (a) and (b) amended 48244
1312.24 (a) amended 48244
1312.25 Amended 48244
1312.28 (c) amended 48244
1312.31 (b) amended 48244
1312.32 (a) amended 48244
21 CFR 1316.99 1989
21 CFR
54 FR
Page
Chapter II
1301.74 (g) amended 33674
1301.75 (d) amended 33674
1306.06 (b) amended 33674
1306.13 (d) amended 33674
1305.16 (a) and (b)(1) amended 33674
1308.11 (g) (3) and (4) removed; (d) (8) through (25) and (g) (5)
and (6) redesignated as (d) (10) through (27) and (g) (3) and (4); (d)
(8) and (9) added 14798
(g)(3) removed; (f)(2) and (g)(4) redesignated as (f)(3) and (g)(3);
new (f)(2) added 14800
(d)(28) added 28415
(g) temporary scheduling extended 31815
1308.22 Table amended 2100
Table revised 12162
1308.24 (i) table revised; interim 10633
1308.32 Table revised; interim 11520
1310 Revised 31662
1313 Added 31665
Policy statement 49750
1316 Authority citation revised 37610
1316.21 -- 1316.22 (Subpart B) Authority citation revised 31670
1316.21 Redesignated as 1316.23; new 1316.21 added 31670
1316.22 Redesignated as 1316.24; new 1316.22 added 31670
1316.23 Redesignated from 1316.21 31670
1316.24 Redesignated from 1316.22 31670
1316.90 -- 1316.99 (Subpart F) Added 37610
21 CFR 1316.99 1990
21 CFR
55 FR
Page
Chapter II
1308.11 (f)(3) added; (g)(3) removed 3588
(f)(4) correctly added 9117
1308.22 table revised 12162
1308.24 (i) table revised; interim; eff. 4-9-90 8915
1308.32 Table revised; interim 9114
1316.03 (a) revised 50827
1316.45 Amended 27464
21 CFR 1316.99 1991
21 CFR
56 FR
Page
Chapter II
1301.02 (e) revised 36726
1301.76 (a) revised 36728
1302 Compliance deadlines 42231
1306.05 (a) revised 25026
1306.13 (b), (c) introductory text and (1) revised 25027
1308 Technical correction 13854
1308.02 (b) through (g) redesignated as (c) through (h); new (b)
added 5754
1308.12 (e)(2) through (4) redesignated as (e)(3) through (5); new
(e)(2) added 11932
1308.13 (f) added 5754
(c)(5) removed; (c)(6) through (12) redesignated as (c)(5) through
(11) 11932
1308.15 (d)(1) removed; (d)(2) redesignated as (d)(1) 61372
1308.24 (i) table revised; interim 9133
1308.25 -- 1308.26 Undesignated center heading added 42936
1308.25 Added 42936
1308.26 Added 42936
1308.33 -- 1308.34 Undesignated center heading added 42936
1308.33 Added 42936
1308.34 Added 42937
1310.02 (a)(13) through (24) added; (b)(5) removed; (b)(6), (7) and
(8) redesignated as (b)(5), (6) and (7) 48733
1310.03 Amended 8277
1310.04 (f)(1)(xii) revised; (f)(1)(xiii) through (xxiv) added;
(f)(2)(i)E), and (ii)(E) removed; (f)(2)(i)(F), (G), (H), (ii)(F), (G)
and (H) redesignated as (f)(2)(i)(E), (F), (G), (ii)(E), (F) and (G)
48733
1313 Policy statement 19269
1313.15 (d) redesignated as (e); new (d) added 55076
1313.24 (d) redesignated as (e); new (d) added 55077
1316.75 (a) and (b) amended 8686
1316.76 (a) amended 8686
1316.77 (a) amended 8686
1316.78 Amended 8686
1316.79 (a) amended 8686
1316.81 Amended 8686
21 CFR 1316.99 1992
21 CFR
57 FR
Page
Chapter II
1302 Labeling deadlines extension 5817
1308.24 (i) table revised; interim 5818
1308.33 (c)(10)(a) and (b) correctly designated as (c)(10)(i) and
(ii) 10815
1310.05 (c) added 2461
1310.06 (c) revised; (e), (f) and (g) added 2462
21
Food and Drugs
PART 1300 TO END
Revised as of April 1, 1992
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF APRIL 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
21 CFR 1316.99 Table of Contents
Page
Explanation v
Title 21:
Chapter II -- Drug Enforcement Administration, Department of Justice
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
21 CFR 1316.99 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, April 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.
April 1, 1992.
21 CFR 1316.99 THIS TITLE
Title 21 -- Food and Drugs is composed of nine volumes. The parts in
these volumes are arranged in the following order: Parts 1-99, 100-169,
170-199, 200-299, 300-499, 500-599, 600-799, 800-1299 and 1300-End. The
first eight volumes, containing parts 1-1299, comprise Chapter I -- Food
and Drug Administration, Department of Health and Human Services. The
ninth volume, containing part 1300 to End, includes Chapter II -- Drug
Enforcement Administration, Department of Justice. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of April 1, 1992.
The Table of Exempted Prescription Products to part 1308 appears in
the volume containing part 1300-End.
Redesignation tables for Chapter I -- Food and Drug Administration
appear in the Finding Aids section for the volumes containing parts
170-199 and 500-599.
For this volume, S. Meyer was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Richard L.
Claypoole, assisted by Alomha S. Morris.
22 CFR 0.0 22 CFR Ch. I (4-1-92 Edition)
22 CFR 0.0 Department of State
22 CFR 0.0 Title 22 -- Foreign Relations
22 CFR 0.0 (This book contains parts 1 to 299)
Part
chapter i -- Department of State 1
chapter ii -- Agency for International Development, International
Development Cooperation Agency 200
Cross References: U.S. Customs Service, Department of the Treasury:
See Customs Duties, 19 CFR Chapter I.
International Trade Administration, Department of Commerce: See
Commerce and Foreign Trade, 15 CFR chapter III.
Foreign-Trade Zones Board: See Commerce and Foreign Trade, 15 CFR
chapter IV.
Immigration and Naturalization Service, Department of Justice: See
Aliens and Nationality, 8 CFR chapter I.
Taxation pursuant to treaties: See Internal Revenue, 26 CFR 1.894-1.
22 CFR 0.0 22 CFR Ch. I (4-1-92 Edition)
22 CFR 0.0 Department of State
22 CFR 0.0 CHAPTER I -- DEPARTMENT OF
22 CFR 0.0 STATE
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER A -- GENERAL
Part
Page
1 Insignia of rank
2 Protection of foreign dignitaries and other official personnel
2a Department of State guidelines on protection of foreign missions
3 Gifts and decorations from foreign governments
3a Acceptance of employment from foreign governments by members of
the uniformed services
4 Notification of foreign official status
5 Organization
7 Board of Appellate Review
8 Advisory committee management
9 Security information regulations
9a Security information regulations applicable to certain
international energy programs; related material
9b Regulations governing Department of State press building passes
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER B -- PERSONNEL
10 Employee responsibilities and conduct
11 Appointment of Foreign Service Officers
12 Complaints against employees by alleged creditors
13 Personnel
16 Foreign Service grievance system
17 Overpayments to annuitants under the Foreign Service retirement
and disability system
18 Regulations concerning post employment conflict of interest
19 Benefits for spouses and former spouses of participants in the
Foreign Service retirement and disability system
20 Benefits for certain former spouses
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER C -- FEES AND FUNDS
22 Schedule of fees for consular services -- Department of State and
Foreign Service
23 Finance and accounting
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER D -- CLAIMS AND STOLEN PROPERTY
31 Administrative settlement of tort claims and certain property
damage claims
32 Stolen property under treaty with Mexico
33 Fishermen's Protective Act procedures under section 7
34 Collection of debts
35 Program fraud civil remedies
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER E -- VISAS
40 Regulations pertaining to both nonimmigrants and immigrants under
the Immigration and Nationality Act, as amended
41 Visas: Documentation of nonimmigrants under the Immigration and
Nationality Act, as amended
42 Visas: Documentation of immigrants under the Immigration and
Nationality Act, as amended
43 Visas: Documentation of immigrants
44 Visas: Documentation of immigrants under section 3 of Pub. L.
100-658
45 Visas: Documentation of immigrants under section 124 of Public
Law 101-649
46 Control of aliens departing from the United States
47 Visas: Documentation of immigrants under section 134 of Public
Law 101-649
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER F -- NATIONALITY AND PASSPORTS
50 Nationality procedures
51 Passports
52 Marriages
53 Travel control of citizens of United States in time of war or
national emergency
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER G -- SOUTH AFRICA AND FAIR LABOR STANDARDS
60 Purpose and scope of application
61 Definitions
62 Registration
63 General policies and reporting requirements
64 Administrative provisions
65 Non-adherence and penalties Appendix to Subchapter G -- Examples
of Fair Labor Practices
22 CFR 0.0 SUBCHAPTER H -- PROTECTION AND WELFARE OF AMERICANS, THEIR
PROPERTY AND ESTATES
71 Protection and welfare of citizens and their property
72 Deaths and estates
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER I -- SHIPPING AND SEAMEN
81 General
82 Vessels of the United States in foreign ports
83 Protests, disputes and offenses
84 Relief and repatriation of seamen
85 Deceased seamen and their effects
86 Maritime disasters, awards and seizures
87 Transfers of vessels abroad
88 Fees for services
89 Prohibitions on longshore work by U.S. nationals
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER J -- LEGAL AND RELATED SERVICES
91 Import controls
92 Notarial and related services
93 Service on foreign state
94 International child abduction
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER K -- ECONOMIC, COMMERCIAL AND CIVIL AVIATION
FUNCTIONS
101 Economic and commercial functions
102 Civil aviation
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER L -- ENEMIES AND REPARATIONS
111 Removal of alien enemies brought to the United States from other
American Republics
112 Reparations: World War II
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER M -- INTERNATIONAL TRAFFIC IN ARMS REGULATONS
120 Purpose, background and definitions
121 The United States munitions list
122 Registration of manufacturers and exporters
123 Licenses for the export of defense articles
124 Manufacturing license agreements, technical assistance
agreements, and other defense services
125 Licenses for the export of technical data and classified defense
articles
126 General policies and provisions
127 Violations and penalties
128 Administrative procedures
130 Political contributions, fees, and commissions
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER N -- MISCELLANEOUS
131 Certificates of authentication
132 Books, maps, newspapers, etc.
133 Disposal of surplus property located in foreign areas
134 Equal Access to Justice Act; implementation
135 Uniform administrative requirements for grants and cooperative
agreements to state and local governments
136 Personal property disposition at posts abroad
137 Governmentwide debarment and suspension (nonprocurement)
138 New restrictions on lobbying
139 Collection of debts by federal tax refund offset
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER O -- CIVIL RIGHTS
141 Nondiscrimination in federally-assisted programs of the
Department of State -- effectuation of Title VI of the Civil Rights Act
of 1964
142 Nondiscriminating on the basis of handicap in programs and
activities receiving Federal financial assistance
143 Nondiscrimination on the basis of age in programs or activities
receiving Federal financial assistance
144 Enforcement of non-discrimination on the basis of handicap in
programs or activities conducted by the United States Department of
State
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER P -- DIPLOMATIC PRIVILEGES AND IMMUNITIES
151 Compulsory liability insurance for diplomatic missions and
personnel
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER Q -- ENVIRONMENTAL PROTECTION
161 Regulations for implementation of the National Environmental
Policy Act (NEPA)
22 CFR 0.0 SUBCHAPTER R -- ACCESS TO INFORMATION
171 Availability of information and records to the public
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER S -- INTERNATIONAL AGREEMENTS
181 Coordination and reporting of international agreements
22 CFR 0.0
22 CFR 0.0 SUBCHAPTER T -- HOSTAGE RELIEF
191 Hostage relief assistance
192 Victims of terrorism compensation
193 Benefits for hostages in Iraq, Kuwait, or Lebanon
22 CFR 0.0
22 CFR 0.0 22 CFR Ch. I (4-1-92 Edition)
22 CFR 0.0 Department of State
22 CFR 0.0 SUBCHAPTER A -- GENERAL
22 CFR 0.0 PART 1 -- INSIGNIA OF RANK
Sec.
1.1 Office of the Secretary of State.
1.2 Office of the Deputy Secretary of State.
1.3 Office of the Under Secretaries of State.
Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.
22 CFR 1.1 Office of the Secretary of State.
The official flag indicative of the office of Secretary of State
shall be as follows: On a blue rectangular field a white disk bearing
the official coat of arms of the United States adopted by the act of
June 20, 1782, in proper colors. In each of the four corners a white
five-pointed star with one point upward. The colors and automobile flag
to be the same design, adding a white fringe. For the colors a cord and
tassel of blue and white to be added. The sizes to be in accordance
with military and naval customs.
(22 FR 10788, Dec. 27, 1957)
22 CFR 1.2 Office of the Deputy Secretary of State.
The official flag indicative of the office of the Deputy Secretary of
State shall be as follows: On a white rectangular field a blue disk
bearing the official coat of arms of the United States adopted by act of
June 20, 1782, in proper colors. In each of the four corners a
five-pointed star with one point upward. The colors and automobile flag
to be the same design, adding a blue fringe. For the colors a cord and
tassel of white in accordance with military and naval customs.
(38 FR 30258, Nov. 2, 1973)
22 CFR 1.3 Office of the Under Secretaries of State.
The official flag indicative of the office of the Under Secretaries
of State shall be as follows: On a red rectangular field a white disk
bearing the official coat of arms of the United States adopted by act of
June 20, 1782, in proper colors. In each of the four corners a white
five-pointed star with one point upward. The colors and automobile flag
to be the same design, adding a white fringe. For the colors a cord and
tassel of white and red to be added. The sizes to be in accordance with
military and naval customs.
(38 FR 30258, Nov. 2, 1973)
22 CFR 1.3 PART 2 -- PROTECTION OF FOREIGN DIGNITARIES AND OTHER
OFFICIAL PERSONNEL
Sec.
2.1 Designation of personnel to carry firearms and exercise
appropriate power of arrest.
2.2 Purpose.
2.3 Notification of foreign officials.
2.4 Designation of official guests.
2.5 Records.
22 CFR 2.1 Designation of personnel to carry firearms and exercise
appropriate power of arrest.
(a) The Deputy Assistant Secretary of State for Security is
authorized to designate certain employees of the Department of State and
the Foreign Service, as well as employees of other departments and
agencies detailed to and under the supervision and control of the
Department of State, as Security Officers, as follows.
(1) Persons so designated shall be authorized to carry firearms when
engaged in the performance of the duties prescribed in section (1) of
the act of June 28, 1955, 69 Stat. 188, as amended. No person shall be
so designated unless he has either qualified in the use of firearms in
accordance with standards established by the Deputy Assistant Secretary
of State for Security, or in accordance with standards established by
the department or agency from which he is detailed.
(2) Persons so designated shall also be authorized, when engaged in
the performance of duties prescribed in section (1) of the act of June
28, 1955, 69 Stat. 188, as amended, to arrest without warrant and
deliver into custody any person violating the provisions of section 111
or 112 of Title 18, United States Code, in their presence or if they
have reasonable grounds to believe that the person to be arrested has
committed or is committing such felony.
(b) When the Under Secretary of State for Management determines that
it is necessary, persons designated under paragraph (a) of this section
shall be authorized to provide protection to an individual who has been
designated by the President to serve as Secretary of State, prior to his
appointment, or to a departing Secretary of State. In providing such
protection, they are authorized to exercise the authorities described in
paragraphs (a) (1) and (2) of section. Such protection shall be for the
period or periods determined necessary by the Under Secretary of State
for Management, except that in the case of a departing Secretary of
State, the period of protection under this paragraph shall in no event
exceed 30 calendar days from the date of termination of that
individual's incumbency as Secretary of State.
(c) When the Under Secretary of State for Management determines that
it is necessary, persons designated under paragraph (a) of this section
shall be authorized to provide protection to a departing United States
Representative to the United Nations. In providing such protection,
they are authorized to exercise the authorities described in paragraphs
(a) (1) and (2) of this section. Such protection shall be for the
period or periods determined necessary by the Under Secretary of State
for Management, except that the period of protection under this
paragraph shall in no event exceed 30 calendar days from the date of
termination of that individual's incumbency as United States
Representative to the United Nations.
(Sec. 4, 63 Stat. 111, as amended, sec. 1, 69 Stat. 188; 22 U.S.C.
2658, 2666)
(29 FR 15571, Nov. 20, 1964, as amended at 47 FR 30480, July 14,
1982; 50 FR 14379, Apr. 12, 1985)
22 CFR 2.2 Purpose.
Section 1116(b)(2) of Title 18 of the United States Code, as added by
Pub. L. 92-539, An Act for the Protection of Foreign Officials and
Official Guests of the United States (86 Stat. 1071), defines the term
''foreign official'' for purposes of that Act as ''any person of a
foreign nationality who is duly notified to the United States as an
officer or employee of a foreign government or international
organization, and who is in the United States on official business, and
any member of his family whose presence in the United States is in
connection with the presence of such officer or employee.'' Section
1116(c)(4) of the same Act defines the term ''official guest'' for the
purposes of that Act as ''a citizen or national of a foreign country
present in the United States as an official guest of the Government of
the United States pursuant to designation as such by the Secretary of
State.'' It is the purpose of this regulation to specify the officer of
the Department of State who shall be responsible for receiving
notification of foreign officials under the Act and determining whether
persons are ''duly notified'' to the United States and who shall be
responsible for processing official guest designations by the Secretary
of State.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26,
1949, as amended (22 U.S.C. 2658))
(37 FR 24817, Nov. 22, 1972)
22 CFR 2.3 Notification of foreign officials.
(a) Any notification of a foreign official for purposes of section
1116(b)(2) of Title 18 of the United States Code shall be directed by
the foreign government or international organization concerned to the
Chief of Protocol, Department of State, Washington, D.C. 20520. For
persons normally accredited to the United States in diplomatic or
consular capacities and also for persons normally accredited to the
United Nations and other international organizations and in turn
notified to the Department of State, the procedure for placing a person
in the statutory category of being ''duly notified to the United
States'' shall be the current procedure for accreditation, with
notification in turn when applicable. The Chief of the Office of
Protocol will place on the roster of persons ''duly notified to the
United States'' the names of all persons currently accredited and, when
applicable, notified in turn, and will maintain the roster as part of
the official files of the Department of State adding to and deleting
therefrom as changes in accreditations occur.
(b) For those persons not normally accredited, the Chief of Protocol
shall determine upon receipt of notification, by letter from the foreign
government or international organization concerned, whether any person
who is the subject of such a notification has been duly notified under
the Act. Any inquiries by law enforcement officers or other persons as
to whether a person has been duly notified shall be directed to the
Chief of Protocol. The determination of the Chief of Protocol that a
person has been duly notified is final.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26,
1949, as amended (22 U.S.C. 2658))
(37 FR 24818, Nov. 22, 1972)
22 CFR 2.4 Designation of official guests.
The Chief of Protocol shall also maintain a roster of persons
designated by the Secretary of State as official guests. Any inquiries
by law enforcement officers or other persons as to whether a person has
been so designated shall be directed to the Chief of Protocol. The
designation of a person as an official guest is final. Pursuant to
section 2658 of Title 22 of the U.S.C., the authority of the Secretary
of State to perform the function of designation of official guests is
hereby delegated to the Chief of Protocol.
(22 U.S.C. 2658)
(45 FR 55716, Aug. 21, 1980)
22 CFR 2.5 Records.
The Chief of Protocol shall maintain as a part of the official files
of the Department of State a cumulative roster of all persons who have
been duly notified as foreign officials or designated as official guests
under this part. The roster will reflect the name, position,
nationality, and foreign government or international organization
concerned or purpose of visit as an official guest and reflect the date
the person was accorded recognition as being ''duly notified to the
United States'' or designated as an official guest and the date, if any,
of termination of such status.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26,
1949, as amended (22 U.S.C. 2658))
(37 FR 24818, Nov. 22, 1972)
22 CFR 2.5 PART 2a -- DEPARTMENT OF STATE GUIDELINES ON PROTECTION OF
FOREIGN MISSIONS
Sec.
2a.1 Purpose.
2a.2 Definitions.
2a.3 Bureau of Diplomatic Security programs.
2a.4 Coordination with law enforcement and intelligence agencies.
2a.5 Diplomatic reciprocity.
2a.6 Location of foreign missions.
2a.7 Provision of protective services generally.
2a.8 Requests from State and local governments for protective
assistance.
2a.9 Provision of protective services in cases of extraordinary
protective need.
2a.10 Reimbursement for protective services provided by State or
local authorities.
2a.11 Special rules for reimbursement.
2a.12 Extraordinary protective services in cases of urgency.
2a.13 Protective security contract services.
2a.14 Foreign Missions Act determination.
2a.15 Supplementary guidelines; State and local agreements.
2a.16 Implementation date; retroactive application.
2a.17 Contact for information.
Authority: Title II, State Department Basic Authorities Act of 1956,
added by the Foreign Missions Act of 1982 (Pub. L. 97-241, 96 Stat. 273,
282), 22 U.S.C. 4301-4313; the Foreign Relations Authorization Act of
1985 (Pub. L. 99-93, 99 Stat. 417), 22 U.S.C. 4314; the Foreign
Missions Amendments Act of 1983 (Pub. L. 98-164, 97 Stat. 1017, 1044),
Title III, U.S.C. secs. 202 and 208, as amended (Pub. L. 97-418, 96
Stat. 2089); Executive Order No. 12478, effective October 1, 1984;
and sec. 4, 63 Stat. 111, as amended (22 U.S.C. 2658).
Source: 52 FR 12155, Apr. 15, 1987, unless otherwise noted.
22 CFR 2a.1 Purpose.
(a) The purpose of these guidelines is to establish a program
administered by the Bureau of Diplomatic Security of the Department of
State, under which the Department can review and promote coordination
between Federal, state and local security authorities in the protection
of foreign missions in the United States, and can assist in the
provision of protective services for such missions. State and local
governments of the United States will continue to have the primary
responsibility for law enforcement within their respective
jurisdictions. This program does not establish any legal entitlement to
assistance either for a foreign mission or for any State or local
government or authority. The Bureau of Diplomatic Security will
maximize available Federal assistance through coordination of programs
and through limited Federal financial assistance by contract or
reimbursement for certain protective services in cases of extraordinary
protective need, to the extent funds are available therefore.
(b) This program will assist the United States to carry out its
international obligations relating to the protection of foreign
diplomatic and consular and international organization personnel and
premises in the United States under the Vienna Convention on Diplomatic
Relations (23 UST 3227, TIAS 7502), the Vienna Convention on Consulor
Relations (21 UST 77, TIAS 6820), the Convention on the Prevention and
Punishment of Crimes Against Internationally Protected Persons,
Including Diplomatic Agents (28 UST 1975, TIAS 8532), the Convention to
Prevent and Punish Acts of Terrorism (27 UST 3949, TIAS 8413),
international agreements relating to organizations such as the United
Nations Headquarters Agreement (61 Stat. 3416, TIAS 1899 (Pub. L.
80-357), and other applicable multilateral and bilateral agreements and
provisions of international law.
(c) The program will include the following --
(1) Foreign Missions, generally -- Extraordinary protective services
may be provided directly through the Department of State, or by
reimbursement for services to state and local governments or contract;
(2) Missions to International Organizations -- Extraordinary
protective services may be provided by reimbursement to State or local
officials, to missions to certain international organizations, such as
the United Nations, under title 3 of the U.S. Code, 202 and 208.
(d) The provisions of these guidelines may be applied to protective
assistance under both paragraphs (a) and (b) of this section unless
otherwise stated therein or separate standards or criteria are required
by applicable law. Supplementary guidelines may be issued by the
Department of State from time to time in order to implement these
guidelines in particular jurisdictions. This part is authorized by the
Foreign Missions Act of 1982 (Pub. L. 97-241, 96 Stat. 273, 282), the
Foreign Missions Amendments Act of 1983 (Pub. L. 98-164), title 3,
secs. 202 and 208 of the U.S. Code, and Executive Order No. 12478.
22 CFR 2a.2 Definitions.
For purposes of these guidelines --
(a) Assistant Secretary means the Assistant Secretary of State for
Diplomatic Security.
(b) Deputy Assistant Secretary means the Deputy Assistant Secretary
of State for the Diplomatic Security Service; any authority granted the
Deputy Assistant Secretary under these regulations may be exercised by
the Assistant Secretary as appropriate.
(c) Foreign mission or foreign diplomatic mission means;
(1) Any mission in the United States involving diplomatic, consular,
or other governmental activities of a foreign government or an
organization representing a territory or political entity which has been
granted diplomatic or other official privileges and immunities under the
laws of the United States, or
(2) Any public international organization designated as such pursuant
to the International Organizations Immunities Act (22 U.S.C. 288-288f)
or a public international organizational agreement as an instrument
through or by which two or more foreign governments engage in some
aspect of their conduct of international affairs; or
(3) An official mission to a public international organization,
including any real property and personnel of such a mission or public
international organization.
(d) Protective service means law enforcement and security measures
employed to assure proper functioning of diplomatic activities and to
prevent injury or harm to personnel or facilities of foreign missions.
(e) Extraordinary protective need means the existence of a threat of
violence, or other circumstance, as determined by the Deputy Assistant
Secretary which requires extraordinary security measures which
significantly exceed those which law enforcement authorities can
reasonably be expected to take.
(f) Extraordinary protective services means protective services
provided or authorized in cases determined under these guidelines to
constitute an extraordinary protective need.
(g) Metropolitan area means a city, county, or other political
subdivision of a State, and those areas related thereto determined by
the Deputy Assistant Secretary to constitute a single protective area
for purposes of these regulations.
(h) State means a state of the United States, the District of
Columbia, Puerto Rico, Guam and all territories under the jurisdiction
of the United States.
(i) United States Mission means the official US government mission to
a public international organization, such as the United States Mission
to the United Nations (''USUN'').
(j) Determinations with respect to the meaning and applicability of
terms used in the Foreign Missions Act and under these regulations are
committed to the discretion of the Secretary of State.
22 CFR 2a.3 Bureau of Diplomatic Security programs.
(a) The Bureau of Diplomatic Security will be responsible, in
coordination with United States Missions as appropriate, for
implementing through its constituent field offices upon request and
subject to availability of resources, foreign mission security programs
including, but not limited to:
(1) Assessment of available Federal, state and local protective
resources for a particular jurisdiction, taking into account the number
of foreign missions and circumstances specific to each jurisdiction;
(2) Assistance in planning and coordinating the provision of
protective security; and
(3) Regulatory functions otherwise required by these guidelines.
(b) The Protective Liaison Division (DS/PT/PL) will be the office
responsible for the overall coordination of this program. Information
of a potential threat to a foreign diplomatic establishment or personnel
will be received and evaluated for purposes of these guidelines from:
(1) U.S. intelligence or law enforcement agencies;
(2) State or local law enforcement agencies;
(3) Bureau of Diplomatic Security Field Office, Threat Analysis
Division and Regional Security Offices;
(4) Department of State country desk offices and other appropriate
regional offices, United States Missions, the Office for
Counter-terrorism and Emergency Planning, the Office of Foreign
Missions, and the Bureau of Intelligence and Research;
(5) Foreign diplomatic establishments;
(c) DS/PT/PL will evaluate this information in concert with the
Threat Analysis Division and recommend to the Deputy Assistant Secretary
the appropriate level of protective coverage required, to be reviewed
daily or as required.
(d) Bureau of Diplomatic Security Field Offices, together with the
appropriate United States Mission, will be responsible for the foreign
diplomatic establishments in their area of jurisdiction. The Field
Offices will institute necessary procedures and practices in regard to
the protection of foreign missions and officials. Each Field Office
will designate an agent as Security Coordinator who will be responsible
for primary coordination with DS/PT/PL, the Consular community, local
law enforcement and private security firms.
22 CFR 2a.4 Coordination with law enforcement and intelligence
agencies.
(a) In order to coordinate and allocate their respective agency
resources, the Deputy Assistant Secretary shall consult regularly with
Federal law enforcement and intelligence agencies, including the Federal
Bureau of Investigation and the United States Secret Service, concerning
assistance programs under these guidelines. Nothing in these guidelines
shall preclude or limit the authority of the United States Secret
Service to provide protective services pursuant to 3 U.S.C. 202 or 18
U.S.C. 3056 at a level commensurate with protective requirements as
determined by the Secret Service.
(b) The Deputy Assistant Secretary shall consult and coordinate with
state and local law enforcement agencies with respect to such matters as
planning for foreign mission protection, communications coordination,
and Federal assistance under this part.
22 CFR 2a.5 Diplomatic reciprocity.
(a) The Deputy Assistant Secretary shall coordinate any request by a
foreign mission or by a state or local government for assistance under
these guidelines for the provision of protective services with the
Director of the Office of Foreign Missions of the Department of State.
OFM shall review the treatment accorded United States missions abroad,
and make recommendations with respect to the impact of any such services
provided under these guidelines on reciprocity and national security
interests of the United States.
(b) No act or omission by any governmental authority under these
guidelines shall be construed either as limited or as establishing in
any way the entitlement of any person, property, premises, or mission to
any privileges or immunities otherwise granted or denied under
applicable law.
22 CFR 2a.6 Location of foreign missions.
(a) The Deputy Assistant Secretary shall review with the Director of
the Office of Foreign Missions all existing and proposed locations of
foreign missions, including, but not limited to any notification under
the Foreign Missions Act to the Director by a foreign mission of a
proposed acquisition, modification or use of real property. In
coordination with a United States mission to an international
organization, as appropriate, and with local authorities in all cases,
this review shall cover security factors related to such locations, such
as the availability of local resources with respect to particular
locations, and whether such location might preclude adequate protection,
or could result in excessive requests for assistance in providing
protective services under these guidelines.
(b) The Deputy Assistant Secretary shall in appropriate cases
recommend to the Director of the Office of Foreign Missions that a
proposed acquisition or existing use by a foreign mission be dispproved,
or conditions be attached thereto under authority of the Foreign
Missions Act (22 U.S.C. 4304 and 4305) to facilitate the rendering of
appropriate protection.
22 CFR 2a.7 Provision of protective services generally.
State and local governments of the United States have as a part of
their normal law enforcement functions the responsiblity to provide
security to persons or property within their jurisdictions, to include
foreign missions. Federal assistance intended to supplement state and
local protective services shall be in accordance with these guidelines
or otherwise as authorized by law.
22 CFR 2a.8 Requests from State and local governments for protective
assistance.
(a) In cases where a State or local authority or foreign mission
believes that an extraordinary protective need exists, it may request
assistance from the Department of State in providing protective
services. The Bureau of Diplomatic Security may request that protective
services be provided. Requests shall be made to the Deputy Assistant
Secretary (Diplomatic Security), Department of State, Washington, DC
20520 directly or through designated Bureau of Diplomatic Security Field
Offices, or through a United States Mission if appropriate. A request
under this paragraph, except as provided in 2a.12 of these guidelines
shall:
(1) Be preceded by consultation between State or local authorities
and the appropriate Bureau of Diplomatic Security Field Office, as well
as the United States Mission, as appropriate;
(2) If related to a scheduled event or visit, be submitted in advance
of the anticipated extraordinary protective need;
(3) Contain sufficient detail to allow the Deputy Assistant Secretary
to make an informed determination of extraordinary protective need,
including: the location of the foreign mission(s) or activities,
together with any secondary locations involved; a description of the
circumstances believed to give rise to the extraordinary protective
need, including, in the case of a diplomatic visit, the name and title
of the visting foreign official or dignitary, the temporary domicile(s)
of the visiting offical or dignitary, and anticipated schedule in the
United States;
(4) If from a state or local agency, include a detailed estimate of
the resources required to provide protective services commensurate with
extraordinary protective need (including approximate number of personnel
by grade or rank, service, equipment and facilities), and an estimate of
the cost of such resources; and
(5) Be accompanied by a security review by the appropriate Bureau of
Diplomatic Security Field Office or by the United States Mission to an
international organization.
(b) In all cases involving requests for assistance in providing
extraordinary protective services, except for as provided in 2a.13, the
Deputy Assistant Secretary, in consultation with the United States
Mission where appropriate, shall determine whether, for purposes of
these guidelines, assistance may be considered for protective services,
and whether such assistance may include direct deployment of Bureau of
Diplomatic Security personnel, contract security assistance or
reimbursement to state and local authorities. An analysis of security
factors shall take into account potential or actual violence or
interruption of diplomatic activities including, but not limited to
specific events or patterns or activity involving --
(1) Confrontations between nationalist or other groups,
(2) Threats or acts of violence by terrorist or other groups,
(3) A specific diplomatic or international occurrence,
(4) Demonstrations or efforts to impede the conduct of normal
diplomatic activities,
(5) The impact of security efforts in the United States upon security
measures and safety of missions and personnel of the U.S. Government
abroad, or
(6) Other circumstances which prevent proper conduct of foreign
mission activities.
Security analysis under these guidelines may be coordinated, within
the Department of State, with the Director of the Office of Foreign
Missions, the Director of the Office of Counter-terrorism and Emergency
Planning, and the Director of Bureau of Intelligence and Research.
22 CFR 2a.9 Provision of protective services in cases of extraordinary
protective need.
In cases determined under these guidelines to constitute an
extraordinary protective need:
(a) The Deputy Assistant Secretary shall determine whether security
personnel of the Department of State may be deployed;
(b) If this is not feasible, the Deputy Assistant Secretary, through
the Bureau of Diplomatic Security Field Offices, or a United States
Mission, as appropriate has the delegated authority to request the
assistance of other Federal law enforcement authorities in the provision
of protective services;
(c) If Federal law enforcement authorities are unable to provide
assistance as requested, the Deputy Assistant Secretary or the
designated representative of a United States Mission, in cases involving
the metropolitan area of that mission or facilities related to United
Nations missions, are authorized:
(1) To request state and local law enforcement authorities to provide
the necessary protective services, or
(2) To obtain such services by contract with protective security
organizations, in accordance with procedures issued by and subject to
the approval of the Deputy Assistant Secretary.
22 CFR 2a.10 Reimbursement for protective services provided by State or
local authorities.
(a) The Deputy Assistant Secretary, in accordance with procedures set
forth in these guidelines may, to the extent funds are available
therefor, authorize reimbursement for reasonable direct expenses
specifically incurred for the provision of extraordinary protective
services incurred by State or local authorities under this section.
(b) No payment or reimbursement shall be directed to be paid by the
Deputy Assistant Secretary pursuant to this section unless the specific
type or scope of protective service has been requested in accordance
with these guidelines; services may be provided under an interim cost
estimate subject to such conditions as may be required by the Deputy
Assistant Secretary for post-performance cost determinations.
(c) No payment or reimbursement shall be directed to be paid by the
Deputy Assistant Secretary for that portion of protective services which
are routine and were or could otherwise have been made available under
the protective service standard of the jurisdiction.
(d) Direct overhead and administrative costs associated with an
extraordinary protective service may be reimbursable on the basis of
pre-performance negotiated rates, or interim rates subject to audit and
redetermination by the Deputy Assistant Secretary.
(e) The provider of service or government agency to whom
reimbursement is provided shall retain all documents and reimbursement
or payment, for inspection or audit by representatives of the Department
of State or of the Comptroller General.
22 CFR 2a.11 Special rules for reimbursement.
Limited funds are made available to the Department of State for
partial reimbursement to state or local government under two statutory
programs, each of which contains separate criteria:
(a) Foreign Missions, generally -- Assistance for extraordinary
protective services may be provided by reimbursement, subject to the
following limitations set forth in the Foreign Relations Authorization
Act of 1985 (Pub. L. 99-93) as amended:
Any agreement with a State or local authority for the provision of
protective services under this section shall be for a period of not to
exceed ninety days in any calendar year, but such agreements may be
renewed after review by the Deputy Assistant Secretary.
Of the funds made available for obligation under this section in any
fiscal year --
(1) not more than 20 percent may be obligated for protective services
within any single State during that year except as otherwise provided by
law; and
(2) not less than 15 percent, except as otherwise provided by law,
shall be retained as a reserve for protective services provided directly
by the Deputy Assistant Secretary or for expenditures in local
jurisdictions not otherwise covered by an agreement for protective
services under this section.
The limitations on funds available for obligation in this subsection
shall not apply to unobligated funds during the final quarter of any
fiscal year.
(b) Missions to International Organizations -- Assistance.
Extraordinary protective services related to certain international
organizations, such as the United Nations, may be provided by
reimbursement under title 3 of the U.S. Code, sections 202, 208.
(c) Reimbursements thereunder are subject to the following
limitations (Note: Funds available under paragraph (a) of this section
may be used for missions qualifying under this subsection):
(1) The foreign missions to which the protective services are
provided must be located in a metropolitan area (other than the District
of Columbia) where there are located twenty or more such missions headed
by full-time officers;
(2) The effected metropolitan area must request such reimbursement;
and
(3) The extraordinary protective need must arise in association with
a visit to or occur at a permanent mission to an international
organization of which the United States is a member or an observer
mission invited to participate in the work of such an organization.
22 CFR 2a.12 Extraordinary protective services in cases of urgency.
In cases of urgency, notwithstanding the requirements of 2a.8
through 2a.10 of these guidelines (but within applicable statutory
limitations), Bureau of Diplomatic Security Field Offices and United
States Missions, under guidelines issued by the Deputy Assistant
Secretary with the concurrence of the Procurement Executive, including,
as appropriate, limited field delegations of authority, may in cases of
urgency approve the provision of extraordinary protective services in
accordance with general cost guidelines, if any, applicable to the
particular jurisdiction, or subject to post-performance cost agreement.
Provision of extraordinary protective services under this section shall
require a review of continuing need and shall not exceed thirty (30 )
days after initiation thereof.
22 CFR 2a.13 Protective security contract services.
(a) In cases where the Deputy Assistant Secretary determines that
extraordinary security services may not be appropriately implemented
because of Federal, state or local law enforcement resource limitations
or other restrictions, necessary protective services may be obtained by
contract with private security firms or providers of such services. In
carrying out the purposes of this section, the Deputy Assistant
Secretary is authorized to proceed to utilize the procurement
authorities conferred upon the Secretary by section 208(d) of the
Foreign Missions Act, in addition to such authority for obtaining
contract services as may be available to the Department of State.
(b) The need for contract security services should be considered in
cases where an extraordinary protective need arises in more than one
jurisdiction, under circumstances where, for a particular mission the
provision of protective services may be adversely affected because of
state or local jurisdictional limitations.
(c) The Department Procurement Executive shall provide, for purposes
of this section, a pre-qualification procedure, including appropriate
pre-award security clearance requirements for firms or security provider
interested in pre-qualification. Awards for services under this section
may be limited to pre-qualification bidders for reasons of time of
performance, or otherwise as authorized by section 208(d) of the Foreign
Missions Act.
22 CFR 2a.14 Foreign Missions Act determination.
Promulgation of these guidelines, and the issuance of supplementary
guidelines under 2a.15 and implementing instructions where required,
are determined hereby to constitute regulations or instructions pursuant
to section 208(b) of the Foreign Missions Act (22 U.S.C. 4308(b)), and
persons acting in compliance therewith are entitled to assert that
section in accordance with its term. This 2a.14 shall be applicable,
but shall not be limited to, authorized acts or omissions of law
enforcement and security personnel in jurisdictions outside those in
which they are otherwise authorized to perform official functions,
subject to Federal law enforcement standards applicable to such acts or
omissions, or in the absence of such standards, to the standards
otherwise applicable in the jurisdictions involved.
22 CFR 2a.15 Supplementary guidelines; State and local agreements.
(a) The Deputy Assistant Secretary may from time to time issue, or
authorize the issuance by designated Bureau of Diplomatic Security Field
Offices or United States Missions, supplementary guidelines implementing
these guidelines and applicable to particular jurisdictions or to
particular categories of protective security within such jurisdictions.
(b) The Deputy Assistant Secretary may enter into agreements with
state and local authorities for the provision of protective services
under these guidelines. Any such agreement shall be for a period of not
to exceed ninety days in any calendar year, but may be renewed after
review by the Deputy Assistant Secretary.
22 CFR 2a.16 Implementation date; retroactive application.
These guidelines were implemented as of the date of issuance,
(original draft September 26, 1985). The provisions of these guidelines
with respect to reimbursement may be applied retroactively to protective
services, subject to qualification under the terms herein and
ratification by the Deputy Assistant Secretary for the Diplomatic
Security Service, on and after October 1, 1984.
22 CFR 2a.17 Contact for information.
Requests for protective security assistance or for reimbursement in
cases determined to constitute an extraordinary need may be forwarded to
the Bureau of Diplomatic Security, Protective Liaison Division
(DS/PT/PL) -- Room 2435, Department of State, Washington, D.C. 20520, or
through Department of State Field Offices of the Bureau of Diplomatic
Security or the appropriate United States Mission to an international
organization.
(a) State Department, Bureau of Diplomatic Security, Protective
Liaison Division (DS/PT/PL) (202) -- 673-3881.
(b) After regular business hours, all inquiries shall be made to the
Coordination Center of the Bureau of Diplomatic Security, Department of
State: The Coordination Center operates on a 24-hour basis (647-2412).
(c) Office of Foreign Missions (202) 647-3416.
(d) Bureau of Diplomatic Security Field Offices:
Boston, Mass 02203, John F. Kennedy Bldg., Government Center, Room
405C, (617) 223-2753
Chicago, Ill 60604, Dirksen Federal Bldg., 219 S. Dearborn Street,
Suite 1378, (312) 353-6163
Dallas, Texas 75242, Federal Bldg. Room 7C-44, 110 Commerce Street,
(214) 767-0702
Los Angeles, California 90012, Federal Bldg., 300 N. Los Angeles
Street, Room 8120, (213) 688-3290
Miami, Florida 33130, Federal Bldg., 51 SW First Avenue, Room 1627,
(305) 536-5781
New York, NY 10278, 26 Federal Plaza, Suite 3409, (212) 264-1292
Philadelphia, Pennsylvania 19106, Mall Bldg., 325 Chestnut Street,
Room 512, (215) 597-7435
San Francisco, California 94102, Federal Bldg., 450 Golden Gate
Avenue, Room 13347, (415) 556-5097
(e) U.S. Mission to the United Nations (USUN) Host Country Section
(212) 415-4131. After regular business hours, all inquiries should be
made to the Communications Section of the U.S. Mission to the United
Nations. This Section operates on a 24-hour basis (212) 415-4444.
22 CFR 2a.17 PART 3 -- GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS
Sec.
3.1 Purpose.
3.2 Authority.
3.3 Definitions.
3.4 Restriction on acceptance of gifts and decorations.
3.5 Designation of officials and offices responsible for
administration of foreign gifts and decorations.
3.6 Procedure to be followed by employees in depositing gifts of more
than minimal value and reporting acceptance of travel or travel
expenses.
3.7 Decorations.
3.8 Approval of retention of gifts or decorations with employing
agency for official use.
3.9 Disposal of gifts and decorations which become the property of
the United States.
3.10 Enforcement.
3.11 Responsibility of chief of mission to inform host government of
restrictions on employees' receipt of gifts and decorations.
3.12 Exemption of grants and other foreign government assistance in
cultural exchange programs from coverage of foreign gifts and
decorations legislation.
Authority: Sec. 515(a)(1), 91 Stat. 862, amending 5 U.S.C. 7342
(1976).
Source: 45 FR 80819, Dec. 8, 1980, unless otherwise noted.
22 CFR 3.1 Purpose.
These regulations provide basic standards for employees of the
Department of State, the United States International Development
Cooperation Agency (IDCA), the Agency for International Development
(AID), and the International Communication Agency (USICA), their spouses
(unless separated) and their dependents to accept and retain gifts and
decorations from foreign governments.
22 CFR 3.2 Authority.
(a) Section 515(a)(1) of the Foreign Relations Authorization Act of
1978 (91 Stat. 862-866), approved August 17, 1977, (hereafter referred
to as ''the Act'') amended section 7342 of Title 5, U.S. Code (1976),
making substantial changes in the law relating to the acceptance and
retention of gifts and decorations from foreign governments.
(b) 5 U.S.C. 7342(g) authorizes each employing agency to prescribe
regulations as necessary to carry out the new law.
22 CFR 3.3 Definitions.
When used in this part, the following terms have the meanings
indicated:
(a) Employee means (1) an officer or employee of the Department, AID,
IDCA, or USICA, including an expert or consultant, however appointed,
and (2) a spouse (unless separated) or a dependent of such a person, as
defined in section 152 of the Internal Revenue Code of 1954 (26 U.S.C.
152).
(b) Foreign government means: (1) Any unit of foreign governmental
authority, including any foreign national, State, local, or municipal
government; (2) any international or multinational organization whose
membership is composed of any unit of foreign government as described in
paragraph (b)(1) of this section; (3) any agent or representative of
any such unit or organization, while acting as such;
(c) Gift means a tangible or intangible present (other than a
decoration) tendered by, or received from, a foreign government;
(d) Decoration means an order, device, medal, badge, insignia, emblem
or award tendered by, or received from, a foreign government;
(e) Minimal value means retail value in the United States at the time
of acceptance of $100 or less, except that on January 1, 1981, and at
3-year intervals thereafter, ''minimal value'' is to be redefined in
regulations prescribed by the Administrator of General Services, in
consultation with the Secretary of State, to reflect changes in the
consumer price index for the immediately preceding 3-year period.
22 CFR 3.4 Restriction on acceptance of gifts and decorations.
(a) An employee is prohibited from requesting or otherwise
encouraging the tender of a gift or decoration from a foreign
government. An employee is also prohibited from accepting a gift or
decoration from a foreign government, except in accordance with these
regulations.
(b) An employee may accept and retain a gift of minimal value
tendered and received as a souvenir or mark of courtesy, subject,
however, to the following restrictions --
(1) Where more than one tangible item is included in a single
presentation, the entire presentation shall be considered as one gift,
and the aggregate value of all items taken together must not exceed
''minimal value''.
(2) The donee is responsible for determining that a gift is of
minimal value in the United States at the time of acceptance. However,
should any dispute result from a difference of opinion concerning the
value of a gift, the employing agency will secure the services of an
outside appraiser to establish whether the gift is one of ''minimal
value''. If, after an appraisal has been made, it is established that
the value of the gift in question is $200 or more at retail in the
United States, the donee will bear the costs of the appraisal. If,
however, the appraised value is established to be less than $200, the
employing agency will bear the costs.
(c) An employee may accept a gift of more than minimal value when (1)
such gift is in the nature of an educational scholarship or medical
treatment, or (2) it appears that to refuse the gift would likely cause
offense or embarrassment or otherwise adversely affect the foreign
relations of the United States, except that a tangible gift of more than
minimal value is deemed to have been accepted on behalf of the United
States and, upon acceptance, shall become the property of the United
States.
(d) An employee may accept gifts of travel or expenses for travel
taking place entirely outside the United States (such as transportation,
food, and lodging) of more than minimal value if such acceptance is
appropriate, consistent with the interests of the United States, and
permitted by the employing agency. Except where the employing agency
has specific interests which may be favorably affected by employee
travel wholly outside the United States, even though it would not
normally authorize its employees to engage in such travel, the standards
normally applied to determine when proposed travel will be in the best
interests of the employing agency and of the United States Government
shall be applied in approving acceptance of travel or travel expenses
offered by a foreign government.
(1) There are two circumstances under which employees may accept
gifts of travel or expenses:
(i) When the employee is issued official travel orders placing him or
her in the position of accepting travel or travel expenses offered by a
foreign government which are directly related to the authorized purpose
of the travel; or
(ii) When the employee's travel orders specifically anticipate the
acceptance of additional travel and travel expenses incident to the
authorized travel.
(2) When an employee is traveling under circumstances described in
paragraph (d)(1)(i) of this section, that is, without specific
instructions authorizing acceptance of additional travel expenses from a
foreign government, the employee must file a report with the employing
angency under the procedures prescribed in 3.6.
(e) Since tangible gifts of more than minimal value may not lawfully
become the personal property of the donee, all supervisory officials
shall, in advising employees of their responsibilities under the
regulations, impress upon them their obligation to decline acceptance of
such gifts, whenever possible, at the time they are offered, or to
return them if they have been sent or delivered without a prior offer.
All practical measures, such as periodic briefings, shall be taken to
minimize the number of gifts which employees must deposit and which thus
become subject to disposal as provided by law and regulation. Employees
should not accept gifts of more than minimal value on the assumption
that refusal would be likely to ''cause offense or embarrassment or
otherwise adversely affect the foreign relations of the United States''.
In many instances it should be possible, by explanation of the
prohibition against an employee's retention of such gifts, to avoid
consequences of acceptance, including possible return of the gift to the
donor. Refusal of the gift at the inception should typically be
regarded as in the interest both of the foreign government donor and the
U.S. Government.
22 CFR 3.5 Designation of officials and offices responsible for
administration of foreign gifts and decorations.
(a) The Act effects a significant degree of decentralization of
administration relative to the disposal of foreign gifts and decorations
which become U.S. Government property. Each agency is now responsible
for receiving from its employees deposits of foreign gifts of more than
minimal value, as well as of foreign decorations not meeting the
statutory criteria for retention by the recipient. The agency is also
responsible for disposing of this property by return to the donor, for
retaining it in the agency if official use of it is approved, for
reporting to the General Services Administration within 30 calendar days
after deposit items neither disposed of nor retained, and for assuming
custody, proper care and handling of such property pending removal from
that custody pursuant to disposal arrangements by the General Services
Administration. The Secretary of State, however, is made responsible
for providing guidance to other executive agencies in the development of
their own regulations to implement the Act, as well as for the annual
publication of lists of all gifts of more than minimal value deposited
by Federal employees during the preceding year. (See 3.5(c).)
Authority for the discharge of the Secretary's responsibilities is
delegated by these regulations to the Chief of Protocol.
(b) The Office of the Chief of Protocol retains primary
responsibility for administration of the Act within the Department of
State. That Office will, however, serve as the depository only for
those foreign gifts and decorations which are turned in by State
Department employees. The Director of Personnel Services of the USICA
will have responsibility for administration of the Act within that
agency and will serve as the depository of foreign gifts and
decorations. Employees of the other foreign affairs agencies must
deposit with their respective agencies any gifts or decorations deposit
of which is required by law.
(c) Any questions concerning the implementation of these regulations
or interpretation of the law should be directed to the following:
(1) For the Department of State, to the Office of Protocol or to the
Office of the Assistant Legal Adviser for Management, as appropriate;
(2) For IDCA, to the Office of the General Counsel;
(3) For AID, to the Assistant General Counsel for Employee and Public
Affairs; and
(4) For USICA, to the General Counsel.
22 CFR 3.6 Procedure to be followed by employees in depositing gifts of
more than minimal value and reporting acceptance of travel or travel
expenses.
(a) An employee who has accepted a tangible gift of more than minimal
value shall, within 60 days after acceptance, relinquish it to the
designated depository office for the employing agency for disposal or,
with the approval of that office, deposit it for official use at a
designated location in the employing agency or at a specified Foreign
Service post. The designated depository offices are:
(1) For the Department of State, the Office of Protocol;
(2) For IDCA, the General Services Division of the Office of
Management Planning in AID;
(3) For AID, the General Services Division of the Office of
Management Planning; and
(4) For USICA, the Office of Personnel Services.
(b) At the time that an employee deposits gifts of more than minimal
value for disposal or for official use pursuant to paragraph (a) of this
section, or within 30 days after accepting a gift of travel or travel
expenses as provided in 3.4(d) (unless the gift of such travel or
travel expenses has been accepted in accordance with specific
instructions from the Department or agency), the employee shall file a
statement with the designated depository office with the following
information:
(1) For each tangible gift reported:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances justifying
acceptance;
(iii) The identity of the foreign government and the name and
position of the individual who presented the gift;
(iv) The date of acceptance of the gift;
(v) The donee's best estimate in specific dollar terms of the value
of the gift in the United States at the time of acceptance; and
(vi) Disposition or current location of the gift. (For State
Department employees, forms for this purpose are available in the Office
of Protocol.)
(2) For each gift of travel or travel expenses:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances justifying
acceptance; and
(iii) The identity of the foregign government and the name and
position of the individual who presented the gift.
(c) The information contained in the statements called for in
paragraph (b) of this section is needed to comply with the statutory
requirement that, not later than Janaury 31 of each year, the Secretary
of State publish in the Federal Register a comprehensive listing of all
such statements filed by Federal employees concerning gifts of more than
minimal value received by them during the preceding year.
22 CFR 3.7 Decorations.
(a) Decorations tendered in recognition of active field service in
time of combat operations or awarded for other outstanding or unusually
meritorious performance may be accepted, retained, and worn by an
employee, subject to the approval of the employing agency. Without such
approval, the decoration is deemed to have been accepted on behalf of
the United States and, like tangible gifts of more than minimal value,
must be deposited by the employee with the designated depository office
for the employing agency within sixty days after acceptance, for
retention for official use or for disposal in accordance with 3.9.
(b) The decision as to whether a decoration has been awarded for
outstanding or unusually meritorious performance will be made:
(1) For the Department of State, by the supervising Assistant
Secretary of State or comparable official, except that, in the case of a
decoration awarded to an Assistant Secretary or other officer of
comparable or higher rank, the decision shall be made by the Office of
Protocol;
(2) For IDCA, by the Assistant Director for Administration;
(3) For AID, by the Director of Personnel Management; and
(4) For USICA, by the Supervising Associate Director, the General
Counsel, or the Director of the Office of Congressional and Public
Liaison (for domestic employees), and by the Director of Area Offices
(for overseas employees).
(c) To justify an affirmative decision, a statement from the foreign
government, preferably in the form of a citation which shows the
specific basis for the tender of the award, should be supplied. An
employee who has received or been tendered a decoration should forward
to the designated depository office of the employing agency a request
for review of the case. This request should contain a statement of
circumstances of the award and such documentation from the foreign
government as has accompanied it. The depository office will obtain the
decision of the cognizant office as to whether the award meets the
statutory criteria and thus whether the decoration may be retained and
worn. Pending receipt of that decision, the decoration should remain in
the custody of the recipient.
22 CFR 3.8 Approval of retention of gifts or decorations with employing
agency for official use.
(a) At the request of an overseas post or an office within the
employing agency, a gift or decoration deemed to have been accepted on
behalf of the United States may be retained for official use. Such
retention should be approved:
(1) For the Department of State, by the Chief of Protocol;
(2) For IDCA, by AID's Director of Management Operations;
(3) For AID, by the Director of Management Operations; and
(4) For USICA, by the Associate Director for Management.
However, to qualify for such approval, the gift or decoration should
be an item which can be used in the normal conduct of agency business,
such as a rug or a tea service, or an art object meriting display, such
as a painting or sculpture. Personal gift items, such as wristwatches,
jewelry, or wearing apparel, should not be regarded as suitable for
''official use''. Only under unusual circumstances will retention of a
decoration for official use be authorized. Every effort should be made
to place each ''official use'' item in a location that will afford the
largest number of employees, and, if feasible, members of the public,
the maximum opportunity to receive the benefit of its display, provided
the security of the location is adequate.
(b) Items approved for official use must be accounted for and
safeguarded as Federal property at all times under standard Federal
property management procedures. Within 30 days after the official use
of a gift has been terminated, the gift or decoration shall be deposited
with the designated depository office of the employing agency to be held
pending completion of disposal arrangements by the General Services
Administration.
22 CFR 3.9 Disposal of gifts and decorations which become the property
of the United States.
(a) Gifts and decorations which have been reported to an employing
agency shall either be returned to the donor or kept in safe storage
pending receipt of instructions from the General Services Administration
for transfer, donation or other disposal under the provisions of the
Federal Property and Administrative Services Act of 1949, 63 Stat. 377,
as amended, and the Federal Property Management Regulations (41 CFR part
101-49). The employing agency shall examine each gift or decoration and
the circumstances surrounding its donation and assess whether any
adverse effect upon the foreign relations of the United States might
result from a return of the gift (or decoration) to the donor, which
shall be the preferred means of disposal. If this is not deemed
feasible, the employing agency is required by GSA regulations to report
deposit of the gift or decoration within 30 calendar days, using
Standard Form 120, Report of Excess Personal Property and, as necessary,
Standard Form 120A, Continuation Sheet, and citing section 7342 of Title
5, U.S. Code (1976), on the reporting document. Such reports shall be
submitted to the General Services Administration, Washington National
Capital Region (WDPO), Attention: Federal Property Resources Service,
Seventh and D Streets, SW., Washington, D.C. 20407.
(b) No gift or decoration deposited with the General Services
Administration for disposal may be sold without the approval of the
Secretary of State, upon a determination that the sale will not
adversely affect the foreign relations of the United States. When
depositing gifts or decorations with the designated depository office of
their employing agency, employees may indicate their interest in
participating in any subsequent sale of the items by the Government.
Before gifts and decorations may be considered for sale by the General
Services Administration, however, they must first have been offered for
transfer to Federal agencies and for donation to the States.
Consequently, employees should understand that there is no assurance
that an item will be offered for sale, or, if so offered, that it will
be feasible for an employee to participate in the sale. Employees are
reminded in this connection that the primary aim of the Act is to
discourage employees' acceptance of gifts of more than minimal value.
22 CFR 3.10 Enforcement.
(a) Each employing agency is responsible under the Act for reporting
to the Attorney General cases in which there is reason to believe that
one of its employees has violated the Act. The Attorney General in turn
may file a civil action in any United States District Court against any
Federal employee who has knowingly solicited or accepted a gift from a
foreign government in violation of the Act, or who has failed to deposit
or report such gift, as an Act required by the Act. In such case, the
court may assess a maximum penality of the retail value of a gift
improperly solicited or received, plus $5,000.
(b) Supervisory officials at all levels within employing agencies
shall be responsible for providing periodic reorientation of all
employees under their supervision on the basic features of the Act and
these regulations, and for ensuring that those employees observe the
requirements for timely reporting and deposit of any gifts of more than
minimal value they may have accepted.
(c) Employees are advised of the following actions which may result
from failure to comply with the requirements of the Act and these
regulations:
(1) Any supervisor who has substantial reason to believe that an
employee under his or her supervision has violated the reporting or
other compliance provisions of the Act shall report the facts and
circumstances in writing to the senior official in charge of
administration within the cognizant bureau or office or at the post
abroad. If that official upon investigation decides that an employee
who is the donee of a gift or is the recipient of travel or travel
expenses has, through actions within the employee's control, failed to
comply with the procedures established by the Act and these regulations,
the case shall be referred to the Attorney General for appropriate
action.
(2) In cases of confirmed evidence of a violation, whether or not
such violation results in the taking of action by the Attorney General,
the senior administrative official referred to in paragraph (c)(1) of
this section as responsible for forwarding a violation report to the
Attorney General shall institute appropriate disciplinary action against
an employee who has failed to (i) Deposit tangible gifts within 60 days
after acceptance, (ii) account properly for the acceptance of travel
expenses or (iii) comply with the Act's requirements respecting disposal
of gifts and decorations retained for official use.
(3) In cases where there is confirmed evidence of a violation, but no
evidence that the violation was willful on the part of the employee, the
senior administrative official referred to in paragraph (c)(1) of this
section shall institute appropriate disciplinary action of a lesser
degree than that called for in paragraph (c)(2) of this section in order
to deter future violations by the same or another employee.
22 CFR 3.11 Responsibility of chief of mission to inform host
government of restrictions on employees' receipt of gifts and
decorations.
A special provision of the Act requires the President to direct every
chief of a United States diplomatic mission to inform the host
government that it is a general policy of the United States Government
to prohibit its employees from receiving gifts of more than minimal
value or decorations that have not been tendered ''in recognition of
active field service in time of combat operations or awarded for other
outstanding or unusually meritorious performance.'' Accordingly, all
Chiefs of Mission shall in January of each year conduct a thorough and
explicit program of orientation aimed at appropriate officials of the
host government concerning the operation of the Act.
22 CFR 3.12 Exemption of grants and other foreign government assistance
in cultural exchange programs from coverage of foreign gifts and
decorations legislation.
The Act specifically excludes from its application grants and other
forms of assistance ''to which section 108A of the Mutual Educational
and Cultural Exchange Act of 1961 applies''. See 22 U.S.C. 2558 (a) and
(b) for the terms and conditions under which Congress consents to the
acceptance by a Federal employee of grants and other forms of assistance
provided by a foreign government to facilitate the participation of such
employee in a cultural exchange.
22 CFR 3.12 PART 3a -- ACCEPTANCE OF EMPLOYMENT FROM FOREIGN
GOVERNMENTS BY MEMBERS OF THE UNIFORMED SERVICES
Sec.
3a.1 Definitions.
3a.2 Requirement for approval of foreign government employment.
3a.3 Authority to approve or disapprove proposed foreign government
employment.
3a.4 Procedure for requesting approval.
3a.5 Basis for approval or disapproval.
3a.6 Notification of approval.
3a.7 Notification of disapproval and reconsideration.
3a.8 Change in status.
Authority: Sec. 509, 91 Stat. 859 (37 U.S.C. 801 Note); sec. 4, as
amended, 63 Stat. 111 (22 U.S.C. 2658).
Source: 43 FR 55393, Nov. 28, 1978, unless otherwise noted.
22 CFR 3a.1 Definitions.
For purposes of this part --
(a) Applicant means any person who requests approval under this part
to accept any civil employment (and compensation therefor) from a
foreign government and who is: (1) Any retired member of the uniformed
services;
(2) Any member of a Reserve component of the Armed Forces; or
(3) Any member of the commissioned Reserve Corps of the Public Health
Service.
The term ''applicant'' also includes persons described in paragraph
(a)(1), (2), or (3) of this section, who have already accepted foreign
government employment and are requesting approval under this part to
continue such employment.
(b) Uniformed services means the Armed Forces, the commissioned
Regular and Reserve Corps of the Public Health Service, and the
commissioned corps of the National Oceanic and Atmospheric
Administration.
(c) Armed Forces means the Army, Navy, Air Force, Marine Corps, and
Coast Guard.
(d) Secretary concerned means: (1) The Secretary of the Army, with
respect to retired members of the Army and members of the Army Reserve;
(2) The Secretary of the Navy, with respect to retired members of the
Navy and the Marine Corps, members of the Navy and Marine Corps
Reserves, and retired members of the Coast Guard and members of the
Coast Guard Reserve when the Coast Guard is operating as a service in
the Navy;
(3) The Secretary of the Air Force, with respect to retired members
of the Air Force and members of the Air Force Reserve;
(4) The Secretary of Transportation, with respect to retired members
of the Coast Guard and members of the Coast Guard Reserve when the Coast
Guard is not operating as a service in the Navy;
(5) The Secretary of Commerce, with respect to retired members of the
commissioned corps of the National Oceanic and Atmospheric
Administration; and
(6) The Secretary of Health, Education, and Welfare, with respect to
retired members of the commissioned Regular Corps of the Public Health
Service and members of the commissioned Reserve Corps of the Public
Health Service.
22 CFR 3a.2 Requirement for approval of foreign government employment.
(a) The United States Constitution (Article I, Section 9, clause 8)
prohibits the acceptance of civil employment with a foreign government
by an officer of the United States without the consent of Congress.
Congress has consented to the acceptance of civil employment (and
compensation therefor) by any person described in 3a.1(b) subject to
the approval of the Secretary concerned and the Secretary of State (37
U.S.C. 801, Note). Civil employment with a foreign government may not
be accepted without such approval by any person so described.
(b) The Secretary of State has no authority to approve employment
with a foreign government by any officer of the United States other than
a person described in 3a.1(a). The acceptance of employment with a
foreign government by any other officer of the United States remains
subject to the constitutional prohibition described in paragraph (a) of
this section.
(c) Any person described in 3a.1(a) who accepts employment with a
foreign government without the approval required by this section or
otherwise obtaining the consent of Congress is subject to forfeiture of
retired pay to the extent of his or her compensation from the foreign
government, according to the Comptroller General of the United States
(44 Comp. Gen. 139 (1964)). This forfeiture is in addition to any other
penalty which may be imposed under law or regulation. 1
1Approval under this part does not constitute an exception to the
provisions of the Immigration and Nationality Act concerning loss of
United States citizenship, for example, by becoming a citizen of or
taking an oath of allegiance to another country. See 8 U.S.C. 1481 et
seq.
22 CFR 3a.3 Authority to approve or disapprove proposed foreign
government employment.
The Director, Bureau of Politico-Military Affairs, is authorized to
approve or disapprove any request by an applicant for approval under
this part to accept civil employment (and compensation therefor) from a
foreign government. The Director may delegate this authority within the
Bureau of Politico-Military Affairs, Department of State.
22 CFR 3a.4 Procedure for requesting approval.
(a) An applicant must submit a request for approval of foreign
government employment to the Secretary concerned, whose approval is also
required by law for the applicant's acceptance of civil employment from
a foreign government. The request must contain information concerning
the applicant's status, the nature of the proposed employment in as much
detail as possible, the identity of and relationship to the foreign
government concerned, and other matters as may be required by the
Secretary concerned.
(b) Requests approved by the Secretary concerned will be referred to
the Director, Bureau of Politico-Military Affairs, for approval.
Requests received by the Director, Bureau of Politico-Military Affairs,
directly from an applicant will be initially forwarded to the Secretary
concerned, or his designee, for approval of disapproval.
22 CFR 3a.5 Basis for approval or disapproval.
Decisions by the Director, Bureau of Politico-Military Affairs, under
this part shall be based on whether the applicant's proposed employment
with a foreign government would adversely affect the foreign relations
of the United States, in light of the applicant's official status as a
retiree or reservist.
22 CFR 3a.6 Notification of approval.
The Director, Bureau of Politico-Military Affairs, will notify the
Secretary concerned when an applicant's proposed foreign government
employment is approved. Notification of approval to the applicant will
be made by the Secretary concerned or his designee.
22 CFR 3a.7 Notification of disapproval and reconsideration.
(a) The Director, Bureau of Politico-Military Affairs, will notify
the applicant directly when an applicant's proposed foreign employment
is disapproved, and will inform the Secretary concerned.
(b) Each notification of disapproval under this section must include
a statement of the reasons for the disapproval, with as much specificity
as security and foreign policy considerations permit, together with a
notice of the applicant's right to seek reconsideration of the
disapproval under paragraph (c) of this section.
(c) Within 60 days after receipt of the notice of disapproval, an
applicant whose request has been disapproved may submit a request for
reconsideration by the Director, Bureau of Politico-Military Affairs. A
request for reconsideration should provide information relevant to the
reasons set forth in the notice of disapproval.
(d) The disapproval of a request by the Director, Bureau of
Politico-Military Affairs, will be final, unless a timely request for
reconsideration is received. In the event of a request for
reconsideration, the Director, Bureau of Politico-Military Affairs, will
make a final decision after reviewing the record of the request. A
final decision after reconsideration to approve the applicant's proposed
employment with a foreign government will be communicated to the
Secretary concerned as provided in 3a.6. A final decision after
reconsideration to disapprove the applicant's proposed employment with a
foreign government will be communicated directly to the applicant as
provided in paragraph (a) of this section and the Secretary concerned
will be informed. The Director's authority to make a final decision
after reconsideration may not be redelegated.
22 CFR 3a.8 Change in status.
In the event that an applicant's foreign government employment
approved under this part is to be materially changed, either by a
substantial change in duties from those described in the request upon
which the original approval was based, or by a change of employer, the
applicant must obtain further approval in accordance with this part for
such changed employment.
22 CFR 3a.8 PART 4 -- NOTIFICATION OF FOREIGN OFFICIAL STATUS
Sec.
4.1 Persons required to give notification.
4.2 Persons exempted from the requirement to give notification.
4.3 Form to be used in giving notification.
4.4 Form required in duplicate.
4.5 Time limit for the submission of the form.
4.6 Termination of official status and departure from the United
States.
Authority: Sec. 10, 56 Stat. 257, sec. 4, 63 Stat. 111, as
amended; 22 U.S.C. 620, 2658.
Source: 22 FR 10788, Dec. 27, 1957, unless otherwise noted.
22 CFR 4.1 Persons required to give notification.
All persons who are entitled to exemption from the registration and
fingerprinting requirements of the Alien Registration Act of 1940 (54
Stat. 670), as amended, are required to give notification to the
Secretary of State of their presence in the United States. Such persons
comprise foreign government officials, members of their families
(including relatives by blood or marriage regularly residing in or
forming a part of their household), and their employees and attendants.
22 CFR 4.2 Persons exempted from the requirement to give notification.
Ambassadors and ministers, and members of their missions named in the
Diplomatic List issued monthly by the Department of State, are exempted
from the requirement to give notification to the Secretary of State
under this part.
22 CFR 4.3 Form to be used in giving notification.
A Notification of Status with a Foreign Government form is to be used
by the several diplomatic missions in Washington in giving notification
of foreign official status to the Secretary of State.
22 CFR 4.4 Form required in duplicate.
The form is to be submitted to the Secretary of State in duplicate.
22 CFR 4.5 Time limit for the submission of the form.
(a) The form is to be submitted within 30 days after the arrival of
the foreign official in the United States or after a change from a
nonofficial to an official status.
(b) If the official status claimed is not recognized by the Secretary
of State, the person submitting the form must register within another 30
days under the requirements of the Alien Registration Act.
22 CFR 4.6 Termination of official status and departure from the United
States.
(a) The diplomatic missions in Washington should notify the Secretary
of State of the termination of service of all officials and employees,
giving the dates of such termination of service, the dates and ports of
their departure from the United States, or their addresses if they are
remaining in the United States.
(b) Aliens remaining in the United States after terminating their
status as officials or employees are required to be registered and
finger-printed within 30 days thereafter under sections 37(a), 34(a) and
32(c) of the Alien Registration Act (54 Stat. 674, 675; 8 U.S.C. 453,
455, 458).
22 CFR 4.6 PART 5 -- ORGANIZATION
Sec.
5.1 Introduction.
5.2 Central and field organization, established places at which, the
officers from whom, and the methods whereby the public may secure
information, make submittals, or request, or obtain decisions; and
statements of the general course and method by which its functions are
channeled and determined.
5.3 Rules of procedure, description of forms available or the places
at which forms may be obtained, and instructions as to the scope and
content of all papers, reports, or examinations.
5.4 Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretation of general
applicability formulated and adopted by the agency.
Authority: Sec. 4, 63 Stat. 111, as amended, sec. 501, 65 Stat.
290; 22 U.S.C. 2658, 31 U.S.C. 483a, 5 U.S.C. 552, E.O. 10501; 18 FR
7049; 3 CFR, 1949-1953 Comp., page 979.
Source: 33 FR 7078, May 11, 1968, unless otherwise noted.
22 CFR 5.1 Introduction.
The sections in this Part 5 are issued pursuant to section 3 of the
Administrative Procedure Act, 5 U.S.C. 552, effective July 4, 1967.
22 CFR 5.2 Central and field organization, established places at which,
the officers from whom, and the methods whereby the public may secure
information, make submittals, or request, or obtain decisions; and
statements of the general course and method by which its functions are
channeled and determined.
(a) The following statements of the central and field organization of
the Department of State and its Foreign Service posts are hereby
prescribed:
(1) The central organization of the Department of State was issued as
Public Notice No. 267, 32 FR 8923, June 22, 1967.
(2) The foreign field organization of the Department of State was
issued as Public Notice No. 254, 32 FR 3712, March 3, 1967.
(3) The domestic field organization of the Department of State was
issued as Public Notice No. 268, 32 FR 8925, June 22, 1967.
(b) As used in the following sections, the term ''Department of
State'' includes all offices within the Department in Washington, its
domestic field offices in the United States, all Foreign Service posts
throughout the world, and U.S. missions to international organizations
unless otherwise specified.
(c) Any person desiring information concerning a matter handled by
the Department of State, or any person desiring to make a submittal or
request in connection with such a matter, should communicate either
orally or in writing with the appropriate office. If the office
receiving the communication does not have jurisdiction to handle the
matter, the communication, if written, will be forwarded to the proper
office, or, if oral, the person will be advised how to proceed. When
the submittal or request consists of a formal application for one of the
documents, privileges, or other benefits provided for in the laws
administered by the Department of State, or in the regulations
implementing these laws, the instructions on the form as to preparation
and place of submission should be followed. In such cases, the
provisions of this part referring to the particular regulation concerned
should be consulted.
22 CFR 5.3 Rules of procedure, description of forms available or the
places at which forms may be obtained, and instructions as to the scope
and content of alI papers, reports, or examinations.
Rules of procedure regarding the following listed matters may be
consulted under the corresponding regulations referenced in 5.4, or
obtained upon application to the offices listed below. Forms pertaining
to the following listed matters, and instructions relating thereto may
also be obtained at the offices indicated below:
22 CFR 5.4 Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretation of
general applicability formulated and adopted by the agency.
(a) The regulations of the Department of State required to be
published under the provisions of the Administrative Procedure Act are
found in the Code of Federal Regulations and the Federal Register. Any
person desiring information with respect to a particular procedure
should examine the pertinent regulation cited hereafter.
(b) The following are citations to regulations within the scope of
this section.
(1) Acceptance of Gifts and Decorations from Foreign Governments. 22
CFR part 3 et seq.
(2) Employee Responsibility and Conduct. 22 CFR part 10 et seq.
(3) Appointment of Foreign Service Officers. 22 CFR part 11 et seq.
(4) Fees for Services in the United States, fees and Charges, Foreign
service. 22 CFR part 21 et seq.; 22 CFR part 22 et seq.
(5) Claims and Stolen Property. 22 CFR part 31 et seq.
(6) Issuance of Visas. 22 CFR parts 41-42 et seq.
(7) Nationality and Passports. 22 CFR part 50 et seq.
(8) International Educational and Cultural Exchanges. 22 CFR part 61
et seq.
(9) Protection and Welfare of Americans Abroad. 22 CFR part 71 et
seq.
(10) Shipping and Seamen Abroad. 22 CFR part 81 et seq.
(11) Other Consular Services Abroad. 22 CFR part 91 et seq.
(12) Economic, Commercial and Civil Air Functions Abroad. 22 CFR
part 101 et seq.
(13) International Traffic in Arms. 22 CFR part 121 et seq.
(14) Certificates of Authentication. 22 CFR part 131 et seq.
(15) Civil Rights. 22 CFR part 141 et seq.
(16) Department of State Procurement. 41 CFR part 6-1 et seq.
(c) These regulations are supplemented from time to time by
amendments appearing initially in the Federal Register.
22 CFR 5.4 PART 7 -- BOARD OF APPELLATE REVIEW
Sec.
7.1 Definitions.
7.2 Establishment of Board of Appellate Review; purpose.
7.3 Jurisdiction.
7.4 Membership and organization.
7.5 Procedures.
7.6 Hearings.
7.7 Passport cases.
7.8 South African Fair Labor Standards cases.
7.9 Decisions.
7.10 Motion for reconsideration.
7.11 Computation of time.
7.12 Attorneys.
Authority: Sec. 1, 44 Stat. 887, sec. 4, 63 Stat. 111, as
amended, 22 U.S.C. 211a, 2658; secs. 104, 360, 66 Stat. 174, 273, 8
U.S.C. 1104, 1503; E.O. 11295, 36 FR 10603; 3 CFR 1966-1970 Comp.,
page 507; 22 CFR 60-65; E.O. 12532, 50 FR 36861 7.4 also issued under
22 U.S.C. 3926.
Source: 44 FR 68825, Nov. 30, 1979, unless otherwise noted.
22 CFR 7.1 Definitions
(a) Board means the Board of Appellate Review or the panel of three
members considering an appeal.
(b) Department means the Department of State.
(c) Party means the appellant or the Department of State.
22 CFR 7.2 Establishment of Board of Appellate Review; purpose.
(a) There is hereby established the Board of Appellate Review of the
Department of State to consider and determine appeals within the purview
of 7.3. The Board shall take any action it considers appropriate and
necessary to the disposition of cases appealed to it.
(b) For administrative purposes, the Board shall be part of the
Office of the Legal Adviser. The merits of appeals or decisions of the
Board shall not be subject to review by the Legal Adviser or any other
Department official, except that the Department may administratively
vacate a Certificate of Loss of Nationality on its own initiative at any
time, notwithstanding an intervening decision by the Board sustaining
the Department's original determination.
(44 FR 68825, Nov. 30, 1979, as amended at 56 FR 55457, Oct. 28,
1991)
22 CFR 7.3 Jurisdiction.
The jurisdiction of the Board shall include appeals from decisions in
the following cases:
(a) Appeals from administrative determinations of loss of nationality
or expatriation under subpart C of part 50 of this chapter.
(b) Appeals from administrative decisions denying, revoking,
restricting or invalidating a passport under 51.70 and 51.71 of this
chapter.
(c) Appeals from final decisions of contracting officers arising
under contracts or grants of the Department of State, not otherwise
provided for in the Department of State contract appeal regulations
(part 6-60 of title 41).
(d) Appeals from administrative determinations under 64.1(a) of this
chapter, denying U.S. Government assistance to U.S. nationals who do not
comply with the Fair Labor Standards in 61.2 of this chapter.
(e) Appeals from administrative decisions of the Department of State
in such other cases and under such terms of reference as the Secretary
of State may authorize.
(44 FR 68825, Nov. 30, 1979, as amended at 51 FR 15319, Apr. 23,
1986)
22 CFR 7.4 Membership and organization.
(a) Membership. The Board shall consist of regular and ad hoc
members as the Legal Adviser may designate. Regular members shall serve
on a fulltime basis. Ad hoc members may be designated from among senior
officers of the Department of State or from among persons not employed
by the Department. Regular and ad hoc members shall be attorneys in
good standing admitted to practice in any State of the United States,
the District of Columbia, or any Territory or possession of the United
States.
(b) Chairperson. The Legal Adviser shall designate a regular member
of the Board as chairperson. A member designated by the chairperson
shall act in the absence of the chairperson. The chairperson or
designee shall preside at all proceedings before the Board, regulate the
conduct of such proceedings, and pass on all issues relating thereto.
(c) Composition. In considering an appeal, the Board shall act
through a panel of three members, not more than two of whom shall be ad
hoc members.
(d) Rules of procedure. The Board may adopt and promulgate rules of
procedure approved by the Secretary of State as may be necessary to
govern its proceedings.
(22 U.S.C. 2658 and 3926)
(44 FR 68825, Nov. 30, 1979, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 7.5 Procedures.
(a) Filing of appeal. A person who has been the subject of an
adverse decision in a case falling within the purview of 7.3 shall be
entitled upon written request made within the prescribed time to appeal
the decision to the Board. The appeal shall be in writing and shall
state with particularity reasons for the appeal. The appeal may by
accompanied by a legal brief. An appeal filed after the prescribed time
shall be denied unless the Board determines for good cause shown that
the appeal could not have been filed within the prescribed time.
(b) Time limit on appeal. (1) A person who contends that the
Department's administrative determination of loss of nationality or
expatriation under subpart C of part 50 of this chapter is contrary to
law or fact, shall be entitled to appeal such determination to the Board
upon written request made within one year after approval by the
Department of the certificate of loss of nationality or a certificate of
expatriation.
(2) A person who has been subject of an adverse decision under
51.89, of this Chapter shall be entitled to appeal the decision to the
Board upon written request made within 60 days after receipt of notice
of such decision.
(3) A national who has been subject of an adverse decision under
64.1(a) of this chapter shall be entitled to appeal the decision to the
Board within 30 days after receipt of notice of such decision.
(4) Time limits for other appeals shall be established by the Board
as appropriate.
(c) Department case record. Upon the written request of the Board,
the office or bureau in the Department of State responsible for the
decision from which the appeal was taken shall assemble and transmit to
the Board within 45 days the record on which the Department's decision
in the case was based. The case record may be accompanied by a
memorandum setting forth the position of the Department on the case.
(d) Briefs. Briefs in support of or in opposition to an appeal shall
be submitted in triplicate to the Board. The appellant shall submit his
or her brief within 60 days after filing of the appeal. The Department
shall then file a brief within 60 days after receipt of a copy of
appellant's brief. Reply briefs, if any, shall be filed within 30 days
after the date the Department's brief is filed with the Board.
Extension of time for submission of a reply brief may be granted by the
Board for good cause shown. Posthearing briefs may be submitted upon
such terms as may be agreed to by the parties and the presiding member
of the Board at the conclusion of a hearing.
(e) Hearing. An appellant shall be entitled to a hearing upon
written request to the Board. An appellant may elect to waive a hearing
and submit his or her appeal for decision on the basis of the record
before the Board.
(f) Pre-hearing conference. Whether there is a hearing before the
Board on an appeal or whether an appeal is submitted for decision on the
record without a hearing the Board may call upon the parties to appear
before a member of the Board for a conference to consider the
simplification or clarification of issues and other matters as may aid
in the disposition of the appeal. The results of the conference shall
be reduced to writing by the presiding Board member, and this writing
shall constitute a part of the record.
(g) Admissibility of evidence. Except as otherwise provided in 7.7
and 7.8, the parties may introduce such evidence as the Board deems
proper. Formal rules of evidence shall not apply, but reasonable
restrictions shall be imposed as to the relevancy, competency and
materiality of evidence presented.
(h) Depositions. The Board may, upon the written request of either
party or upon agreement by the parties, permit the taking of the
testimony of any person by deposition upon oral examination or written
interrogatories for use as evidence in the appeal proceedings. The
deponent shall be subject to cross-examination either by oral
examination or by written interrogatories by the opposing party or by
the Board. Leave to take a deposition shall not be granted unless it
appears impracticable to require the deponent's testimony at the hearing
on the appeal, or unless the taking of a deposition is deemed to be
warranted for other valid reasons.
(i) Record of proceedings. The record of proceedings before the
Board shall consist of the Department's case record, briefs and other
written submissions of the parties, the stipulation of facts, if any,
the evidence admitted, and the transcript of the hearing if there is a
hearing. The record shall be available for inspection by the parties at
the Office of the Board.
(j) Scope of review. Except as otherwise provided in 7.7 and 7.8,
the Board shall review the record in the case before it. The Board
shall not consider argument challenging the constitutionality of any law
or of any regulation of the Department of State or take into
consideration any classified or administratively controlled material.
(k) Appearance before the Board. Any party to any proceeding before
the Board is entitled to appear in person or by or with his or her
attorney, who must possess the requisite qualifications, set forth in
7.12, to practice before the Board.
(l) Failure to prosecute an appeal. Whenever the record discloses
the failure of an appellant to file documents required by these
regulations, respond to notices or correspondence from the Board, or
otherwise indicates an intention not to continue the prosecution of an
appeal, the Board may in its discretion terminate the proceedings
without prejudice to the later reinstatement of the appeal for good
cause shown.
(44 FR 68825, Nov. 30, 1979, as amended at 51 FR 15319, Apr. 23,
1986; 52 FR 41560, Oct. 29, 1987)
22 CFR 7.6 Hearings.
(a) Notice and place of hearing. The parties shall be given at least
15 days notice in writing of the scheduled date and place of a hearing
on an appeal. The Board shall have final authority to fix or change any
hearing date giving consideration to the convenience of the parties.
Hearings shall be held at the Department of State, Washington, D.C.,
unless the Board determines otherwise.
(b) Conduct of hearing. The appellant may appear and testify on his
own behalf. The parties may present witnesses, offer evidence and make
argument. The appellant and witnesses may be examined by any member of
the Board, by the Department, and by the appellant's attorney, if any.
If any witness whom the appellant or the Department wishes to call is
unable to appear personally, the Board in its discretion, may accept an
affidavit by the witness or grant leave to take the deposition of such
witness. Any such witness will be subject to cross examination by means
of sworn responses to interrogatories posed by the opposing party. The
appellant and the Department shall be entitled to be informed of all
evidence before the Board and of the source of such evidence, and to
confront and cross-examine any adverse witness. The Board may require a
stipulation of facts prior to or at the beginning of the hearing and may
require supplemental statements on issues presented to it, or
confirmation, verification or authentication of any evidence submitted
by the parties. The parties shall be entitled to reasonable
continuances upon request for good cause shown.
(c) Privacy of hearing. The hearing shall be private unless an
appellant requests in writing that the hearing be open to the public.
Attendance at the hearing shall be limited to the appellant, attorneys
of the parties, the members of the Board, Department personnel who are
directly involved in the presentation of the case, official
stenographers, and the witnesses. Witnesses shall be present at the
hearing only while they are giving testimony or when otherwise directed
by the Board.
(d) Transcript of hearing. A complete verbatim transcript shall be
made of the hearing by a qualified reporter, and the transcript shall
constitute a permanent part of the record. Upon request, the appellant
shall have the right to inspect the complete transcript and to purchase
a copy thereof.
(e) Nonappearance of a party. The unexcused absence of a party at
the time and place set for a hearing shall not be occasion for delay.
In the event of such absence, the case will be regarded as having been
submitted by the absent party on the record before the Board.
(44 FR 68825, Nov. 30, 1979, as amended at 53 FR 39589, Oct. 11,
1988)
22 CFR 7.7 Passport cases.
(a) Scope of review. With respect to appeals taken from decisions of
the Assistant Secretary for Consular Affairs denying, revoking,
restricting, or invalidating a passport under 51.70 and 51.71 of this
chapter, the Board's review, except as provided in paragraph (b) of this
section, shall be limited to the record on which the Assistant
Secretary's decision was based.
(b) Admissibility of evidence. The Board shall not receive or
consider evidence or testimony not presented at the hearing held under
51.81-51.89 of this chapter unless it is satisfied that such evidence or
testimony was not available or could not have been discovered by the
exercise of reasonable diligence prior to such hearing.
(44 FR 68825, Nov. 30, 1979, as amended at 53 FR 39589, Oct. 11,
1988)
22 CFR 7.8 South African Fair Labor Standards cases.
(a) Scope of review. With respect to appeals taken from decisions of
the Assistant Secretary for African Affairs denying assistance to U.S.
nationals operating in South Africa which do not comply with the Fair
Labor Standards outlined in 61.2 of the chapter, the Board's review
except as provided in paragraph (b) of this section shall be limited to
the record on which the Assistant Secretary's decision was based.
(b) Admissibility of evidence. The Board shall not receive or
consider evidence or testimony not presented pursuant to 63.3(a) or
63.3(b) of this chapter unless it is satisfied that such evidence was
not available or could not have been discovered by the exercise of
reasonable diligence prior to entry of the decision of the Assistant
Secretary for African Affairs.
(51 FR 15319, Apr. 23, 1986, as amended at 52 FR 41560, Oct. 29,
1987; 53 FR 39589, Oct. 11, 1988)
22 CFR 7.9 Decisions.
The Board shall decide the appeal on the basis of the record of the
proceedings. The decision shall be by majority vote in writing and
shall include findings of fact and conclusions of law on which it is
based. The decision of the Board shall be final, subject to 7.2(b)
and 7.10. Copies of the Board's decision shall be forwarded promptly to
the parties.
(56 FR 55457, Oct. 28, 1991)
22 CFR 7.10 Motion for reconsideration.
The Board may entertain a motion for reconsideration of a Board's
decision, if filed by either party. The motion shall state with
particularity the grounds for the motion, including any facts or points
of law which the filing party claims the Board has overlooked or
misapprehended, and shall be filed within 30 days from the date of
receipt of a copy of the decision of the Board by the party filing the
motion. Oral argument on the motion shall not be permitted. However,
the party in opposition to the motion will be given opportunity to file
a memorandum in opposition to the motion within 30 days of the date the
Board forwards a copy of the motion to the party in opposition. If the
motion to reconsider is granted, the Board shall review the record, and,
upon such further reconsideration, shall affirm, modify, or reverse the
original decision of the Board in the case.
(44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23,
1986)
22 CFR 7.11 Computation of time.
In computing the period of time for taking any action under this
part, the day of the act, event, or notice from which the specified
period of time begins to run shall not be included. The last day of the
period shall be included, unless it falls on a Saturday, Sunday, or a
legal holiday, in which event the period shall extend to the end of the
next day which is not a Saturday, Sunday, or a legal holiday. The Board
for good cause shown may in its discretion enlarge the time prescribed
by this part for the taking of any action.
(44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23,
1986)
22 CFR 7.12 Attorneys.
(a) Attorneys at law who are admitted to practice in any State of the
United States, the District of Columbia, or any Territory or possession
of the United States, and who are members of the Bar in good standing,
may practice before the Board unless disqualified under paragraph (b) of
this section or for some other valid reason.
(b) No attorney shall be permitted to appear before the Board as
attorney representing an appellant if he or she is subject to the
conflict of interest provisions of Chapter 11 of Title 18 of the United
States Code.
(44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23,
1986)
22 CFR 7.12 PART 8 -- ADVISORY COMMITTEE MANAGEMENT
Sec.
8.1 Authorities.
8.2 Policy.
8.3 Scope.
8.4 Definitions.
8.5 Creation of a committee.
8.6 Membership.
8.7 Security.
8.8 Chartering of committees.
8.9 Meetings of advisory committees.
8.10 Reports.
8.11 Records.
8.12 Financial records.
8.13 Availability of records.
8.14 Public inquiries.
Authority: 22 U.S.C. 2658; sec. 8(a) Federal Advisory Committee Act
(Pub. L. 92-463); E.O. 11769; and OMB Circular A-63, Rev.
Source: 40 FR 28606, July 8, 1975, unless otherwise noted.
22 CFR 8.1 Authorities.
(a) Regulatory authorities. (1) These regulations are issued to
implement the Federal Advisory Committee Act, Pub. L. 92-463, which
became effective January 5, 1973, and Office of Management and Budget
Circular No. A-63 of March 27, 1974. These regulations also are in
accordance with Executive Order 11769 of February 21, 1974, and the
responsibilities of the Secretary of State under 22 U.S.C. 2656.
(2) These regulations apply to any advisory committee which provides
advice to the Department of State or any officer of the Department.
However, to the extent that an advisory committee is subject to
particular statutory provisions, which are inconsistent with the Federal
Advisory Committee Act, these regulations do not apply.
(b) Delegated authority. (1) The Deputy Under Secretary for
Management has been designated by the Secretary (Delegation of Authority
No. 125 signed November 7, 1972) to have full responsibility for the
Committee Management function.
(2) The Advisory Committee Management Officer in the Management
Systems Staff administers the Committee Management Program for the
Deputy Under Secretary for Management.
22 CFR 8.2 Policy.
(a) Advisory Committees are to be used for obtaining advice and
recommendations on matters for which they were established, and may be
utilized only when the information sought is not otherwise efficiently
and economically available.
(b) Unless provided otherwise by statute or Presidential directive,
advisory committees shall be utilized solely for advisory functions and
any decision taken pursuant to the advice or recommendation of an
advisory committee is the responsibility of the appropriate Department
officer. For the purposes of this provision, ''Presidential directive''
includes an executive order or executive memorandum.
(c) Meetings of advisory committees will be open to the public unless
there is a compelling reason which requires nondisclosure of the subject
matter in accordance with public law (5 U.S.C. 552 (b)).
22 CFR 8.3 Scope.
(a) The Federal Advisory Committee Act applies to committees
''established'' by the Government and to committees ''utilized'' though
not established by the Government.
(1) The President and the Congress, or the Department in consultation
with the Office of Management and Budget, may establish a group which
shall be known as an advisory committee for the purpose of obtaining
advice or recommendations and which shall be subject to the Federal
Advisory Committee Act throughout its existence.
(2) Though not established by the President or the Department, a
group utilized for the purpose of obtaining advice or recommendations
must file a charter prior to a meeting, and otherwise conform to the
requirements of the Act during any meetings or other contacts with the
Department.
(b) One requisite for coverage of either type (established or
utilized) under the Federal Advisory Committee Act is that the group can
be defined as a committee as set forth in the definition of a committee,
as contained in 8.4 of these regulations, and have all or most of the
following characteristics:
(1) The purpose, objective or intent is that of providing advice to
any officer or organizational component of the Department;
(2) Has regular or periodic meetings;
(3) Has fixed membership (membership may include more than one full
time Federal officer or employee but is not comprised wholly of
Government personnel);
(4) Has an organizational structure (e.g., officers) and a staff.
(c) Where a group provides some advice to an agency, but the group's
advisory function is incidental to and inseparable from other
operational functions such as making or implementing decisions, the
Federal Advisory Committee Act does not apply.
(d) Where the advisory function of a group is separable from its
operational function, the group is subject to the Act to the extent that
it operates as an advisory committee.
22 CFR 8.4 Definitions.
(a) The Federal Advisory Committee Act defines advisory committee as
any committee, board, commission, council, conference, panel, task
force, or other similar group, or any subcommittee or other subgroup
thereof, which is --
(1) Established by statute or reorganization plan, or
(2) Established or utilized by the President, or
(3) Established or utilized by one or more agencies, in the interest
of obtaining advice or recommendations for the President or one or more
agencies or officers of the Federal Government, except a committee
composed wholly of full-time officers and employees of the Government.
(b) A formal subgroup or subcommittee independently possesses
significant requisites of an advisory committee, i.e., fixed membership,
periodic meetings, et cetera.
(c) An informal subgroup or subcommittee is one that facilitates the
activities of its advisory committee. For example, during a particular
meeting, the advisory committee may divide itself into subgroups to
permit simultaneous discussion of different topics.
22 CFR 8.5 Creation of a committee.
(a) A bureau or an office designated or desiring to sponsor an
advisory committee will prepare a memorandum to the Advisory Committee
Management Officer setting forth the purpose, organization (including
subgroups), proposed balanced membership (see 8.6), and a justification
for the need of the particular committee.
(b) The Advisory Committee Management Officer will review the request
and will make an action recommendation to the Deputy Under Secretary for
Management through the Director of the Management Systems Staff.
(c) If the Deputy Under Secretary for Management approves the
request, it will be submitted to the Committee Management Secretariat of
the Office of Management and Budget for approval. The OMB Secretariat
will usually take action within 15 days.
(d) The Advisory Committee Management Officer will advise the
sponsoring bureau or office of the approval for or rejection of the
request to establish the advisory committee.
(e) After OMB approval the intent to establish an advisory committee,
containing a description of the committee and a statement of why it is
in the public interest to create it, will be published in the Federal
Register at least 15 days prior to filing the committee charter.
22 CFR 8.6 Membership.
(a) The act requires a balanced membership in terms of the points of
view represented. Members are selected for their expertise in the
committee's functions and should be chosen from different vocations
having knowledge in the subject.
(b) It is Department policy that members will be selected without
regard to national origin, religion, race, sex, or color.
(c) The committee office will keep the Advisory Committee Management
Officer currently advised of a committee's membership including
vacancies.
22 CFR 8.7 Security.
(a) All officers and members of a committee must have a security
clearance for the subject matter level of security at which the
committee functions.
(b) The responsible committee office will provide the Advisory
Committee Management Officer with each member's security clearance level
and date of issue.
(c) The substantive office sponsoring an advisory committee is
responsible for access to and removal from official premises of
classified material in accordance with the Department's security
regulations (5 FAM 940 and 973). Any questions arising involving
security procedures are to be presented to the Office of Security for
guidance and resolution.
22 CFR 8.8 Chartering of committees.
(a) Requirements. (1) Each advisory committee, whether established
or utilized, must have a charter approved by the Deputy Under Secretary
of State for Management and filed with the Advisory Committee Management
Officer, the Senate Foreign Relations Committee and the House Committee
on International Relations, and in the case of a Presidential advisory
committee only with the Committee Management Secretariat of OMB before
it can hold a meeting.
(2) Formal subgroups may be chartered separately or the requisite
information set forth in the charter of the parent committee.
(3) Informal subgroups may not require a charter; however, the
charter of the parent committee must cover this aspect of its
organization.
(4) The Advisory Committee Management Officer will, at the time a
charter is filed, furnish a copy of the filed charter to the Library of
Congress.
(b) Contents. Each committee charter shall contain: The official
name and acronym, if any; the objectives, scope of activity, and full
description of duties; the authority for such functions; the
Department official (by title) to whom the committee reports; the
relationship to or with other committees; the committee organization,
composition of membership and officers' responsibilities; a description
of the type of minutes, with their certification of accuracy, and
records to be maintained; the estimated annual operating costs in
dollars and man-years, and the source and authority for these resources;
the period of time that will be required by the committee to accomplish
its stated purpose; the estimated number and frequency of meetings;
the termination date; and the filing date of the charter.
(c) Termination and Renewal. (1) An existing advisory committee will
be automatically terminated at the end of a 2-year period (i.e., date
specified in charter) unless its charter is renewed, except for a
statutory committee which has provisions providing to the contrary.
(2) The Deputy Under Secretary for Management will make a
determination, based on a comprehensive review, whether or not a
committee will be continued.
(3) The OMB Secretariat will be advised of the determination and
reasons therefore 60 days prior to the charter expiration date of the
committee. If the Secretariat concurs, the Advisory Committee
Management Officer will publish in the Federal Register the Department's
intent to continue those advisory committees so designated by the Deputy
Under Secretary for Management.
(4) Each office responsible for an advisory committee it wishes to
continue will prepare a new charter and submit it to the Advisory
Committee Management Officer before October 1 biennially.
(5) No advisory committee shall meet, advise or make recommendations
between the expiration date of its charter and the date its new charter
is filed.
(d) Amendments. (1) The charter of a committee may be amended, as
necessary, to reflect current information on organization, composition,
activities, et cetera.
(2) A proposed amendment must be approved prior to any committee
activity to which the proposed amendment relates.
22 CFR 8.9 Meetings of advisory committees.
(a) Applicability. The term ''meeting'' covers any situation in
which all or some of the members of an advisory committee convene with a
representative of the Department to transact committee business or to
discuss matters related to the committee. This is applicable to an
advisory committee and to its subordinate components.
(b) Designated Department Official. (1) No advisory committee may
hold a meeting in the absence of the designated full-time Department or
other U.S. Government officer.
(2) The designated Department or other U.S. Government officer has
the following responsibilities:
(i) Prepares or approves the agenda for all meetings;
(ii) Calls or approves in advance the calling of the meetings;
(iii) Adjourns any meeting whenever he or she determines that
adjournment is in the public interest.
(c) Notice of Meetings. (1) All advisory committee meetings, open or
closed, will be publicly announced except when the President of the
United States determines otherwise for reasons of national security.
(2) Notice of each such meeting shall be published in the Federal
Register and in a Department of State Press Release at least 15 days
prior to the meeting date.
(3) The responsible committee office will prepare the notice and
press release, obtaining clearances as set forth in paragraphs (c)(3)
(i) and (ii) of this section, and deliver to the Advisory Committee
Management Officer for action:
(i) Open meeting -- clearance within initiating office/bureau;
(ii) Closed meeting -- clearance within initiating office/bureau
including its legal adviser, and the Bureau of Public Affairs at the
Bureau level.
(4) The Deputy Under Secretary for Management will determine if an
advisory committee may hold a closed meeting, after a request for a
meeting not open to the public is cleared by the Advisory Committee
Management Officer and the Office of the Legal Adviser.
(5) After the clearances set forth in paragraphs (c) (3) and (4) of
this section, a notification of meeting may also be provided by the
office/bureau to any persons or organizations known to be interested in
the activities of the committee.
(6) The office sponsoring the committee is responsible for meeting
publishing date requirements. Overall normal processing time prior to a
meeting date is 25 days for an open meeting and 47 days for a closed
meeting.
(d) Contents of Notice. (1) The content of the Federal Register
public notice and the Department of State press release will be
identical.
(2) An open meeting announcement will state the name of the
committee; the date, time, and place of the meeting; the agenda or
summary thereof; that the meeting will be open to the public; the
extent to which the public may participate in the meeting, either orally
or in writing; seating space available; and the name and telephone
number of a committee officer to whom inquiries may be directed,
including arrangments for those attending if the meeting is in a secure
building.
(3) A closed meeting announcement will state the name of the
committee, the date of meeting and the reason or reasons which justify
the closing of the meeting in the public interest.
(e) Closed Meetings. (1) An advisory committee meeting may be closed
in accordance with the Federal Advisory Committee Act when the President
or Department determines that the meeting is concerned with matters
listed in section 552(b) of Title 5, United States Code.
(2) Any determination to close all or a part of a meeting must be
based upon specific reasons. If a meeting is to cover separable
matters, not all of which are within the exemptions of 5 U.S.C. 552(b),
only the portion of the meeting dealing with exempt matters may be
closed.
(3) When a meeting or portion of a meeting is to be closed to the
public, the notice should state the reasons for the closing.
(4) The written request in accordance with paragraph (c)(4) of this
section, for a determination by the Deputy Under Secretary for
Management that a committee may hold a closed meeting must be submitted
at least 47 days before the scheduled date of the meeting unless the
Deputy Under Secretary for Management determines that a shorter period
of time is necessary.
(f) Cancelled Meetings. (1) The cancellation of a scheduled
committee meeting must be publicized without delay.
(2) The responsible committee office will prepare a public notice and
press release and hand-carry them to the Advisory Committee Management
Officer as soon as the decision to cancel the meeting is made.
(3) The notice and press release will state the name of the advisory
committee, identify the meeting that is cancelled, and state why it is
cancelled. The Federal Register data, if known, concerning the
announcement should be cited.
(g) Rescheduled Meetings. When it is not feasible to hold an
advisory committee meeting on the date that has been announced such
meeting may be rescheduled for a later date by utilizing the same
procedure as set forth in paragraph (f) of this section except the word
rescheduled is substituted for cancelled.
(h) Minutes. (1) Detailed minutes of each advisory committee
meeting, including subgroups, shall be kept.
(2) The minutes for an open meeting shall as a minimum cover the
folllowing items: The time and place of the meeting; a listing of
advisory committee members and staff and agency employees present at the
meeting; a complete summary of matters discussed and conclusions
reached; copies of all reports received, issued, or approved by the
advisory committee; a description of the extent to which the meeting
was open to the public; an explanation of the extent of public
participation, including a list of members of the public who presented
oral or written statements; and an estimate of the number of members of
the public who attended the meeting.
(3) The minutes for a closed meeting shall include all that is
required for an open meeting except those items relating to the presence
of the public.
(4) The chairperson of each advisory committee shall certify the
accuracy of the committee minutes.
(22 U.S.C. 2658 and 3926)
(40 FR 28606, July 8, 1975, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 8.10 Reports.
(a) There are two categories of reports on advisory committees. One
category is concerned with management and the other with advisory
activities.
(b) Management reports include:
(1) Comprehensive Review. An annual review shall be conducted on a
calendar year basis to determine the essentiality of the committee. The
results of that Review are included in the Annual Report. The due date
is October 1.
(2) Annual Report. A calendar year report which covers the status of
the committee. It is a component report for the President's annual
report to the Congress. The due date is December 31.
(3) Report of Closed Meeting(s). A summary of the activities and
related matters discussed by a committee during a closed meeting shall
be prepared annually. It is to be as informative as possible for the
public consistent with section 552(b) policy of the Freedom of
Information Act.
(4) Other Reports. Other management reports that may be required,
such as requests from the Office of Management and Budget, Congressional
Committees, et cetera, will be submitted in accordance with the
requested due date.
(c) Advisory activities reports are reports issued by the committee.
They are to be submitted, when prepared in final as a committee document
or published, on a current basis.
(d) All reports are submitted to the Advisory Committee Management
Officer.
(1) The Comprehensive Review is signed by the responsible committee
officer and approved by the bureau/office policy making officer. It is
submitted in original only.
(2) The Annual Report will be prepared on Standard Forms 248 and 249
in original and one copy. (Instructions for preparation are printed on
the back of the forms.)
(3) The Report of Closed Meeting(s) is signed by the committee
chairman and submitted in original and 8 copies.
(4) The Advisory activities reports are submitted in 9 copies each,
except Presidential advisory committee reports are submitted in 12
copies.
22 CFR 8.11 Records.
(a) The records of an advisory committee consist of all papers and
documents which are prepared for or by and/or made available to the
committee, and are maintained by the office responsible for the
committee. Such records are inter alia agenda, drafts, minutes,
notices, press releases, reports, studies, transcripts, and working
papers.
(b) The Advisory Committee Management Officer maintains the
Department's official records relating to the management of all
committees.
22 CFR 8.12 Financial records.
Accurate records will be kept by the responsible committee office of
all operating and salary costs of a committee. (See instruction item 17
on SF-248.)
22 CFR 8.13 Availability of records.
The records of a committee are to be made available upon request in
accordance with the Department's regulations promulgated in accordance
with the provisions of the Freedom of Information Act (40 Federal
Register 7256-7529, February 19, 1975).
22 CFR 8.14 Public inquiries.
Public inquiries concerning the implementation of the Federal
Advisory Committee Act and the management of the advisory committees of
the Department should be addressed to the Advisory Committee Management
Officer, Management Systems Staff, Department of State, Washington, D.C.
20520.
22 CFR 8.14 Pt. 9
22 CFR 8.14 PART 9 -- SECURITY INFORMATION REGULATIONS
Sec.
9.1 General policy.
9.2 Implementation and oversight responsibilities.
9.3 Responsibility for safeguarding classified information.
9.4 Classification.
9.5 Classification designations.
9.6 Requirements for classification.
9.7 Classification authority.
9.8 Limitations on classification.
9.9 Duration of classification.
9.10 Derivative classification.
9.11 Derivative classification guides.
9.12 Identification and markings.
9.13 Transferred material.
9.14 Declassification and downgrading.
9.15 Systematic review for declassification guidelines.
9.16 Mandatory review.
9.17 Schedule of fees.
9.18 Access by Presidential appointees.
Appendix A to Part 9 -- Definitions
Authority: E.O. 12356, National Security Regulations of April 2,
1982 (47 FR 14874, April 6, 1982): Information Security Oversight
Office Directive No. 1 (47 FR 27836, June 25, 1982).
Source: 47 FR 55594, Dec. 10, 1982, unless otherwise noted.
22 CFR 9.1 General policy.
(a) E.O. 12356 (hereinafter called ''the Order'') recognizes that it
is essential that the public be informed concerning the activities of
its government, but that the interests of the United States and its
citizens require that certain information concerning the national
defense and foreign relations be protected against unauthorized
disclosure. With this object, the Order prescribes a uniform system for
classifying, declassifying, and safeguarding national security
information.
(b) The purpose of these regulations is to assist in the
implementation of the Order and Information Security Oversight Office
(hereinafter referred to as ISOO), Directive No. 1, (hereinafter called
''the Directive''), and users of these regulations may refer to the
Order and Directive for additional guidance.
22 CFR 9.2 Implementation and oversight responsibilities.
The Order requires each agency that originates or handles classified
information to promulgate implementing regulations. The Order further
requires that each agency originating or handling classified material
shall designate a senior official to direct and administer its
information security program. This official shall be responsible for
actively overseeing the agency's program, including a security education
program, to ensure effective implementation of the Order.
(a) In addition, this official shall have the following
responsibilities:
(1) To establish and monitor agency policies and procedures to
prevent over or under classification, to ensure the protection from
unauthorized disclosure of properly classified information, including
intelligence information, and to ensure orderly and effective
declassification of agency documents which no longer require protection,
in accordance with the terms of the Order.
(2) To review proposed classified disclosures of an exceptional
nature bearing upon issues of concern to the Congress and the public.
(3) To issue any needed guidelines for classification or
declassification.
(4) To recommend to the agency head the following:
(i) Proposals for reclassification in accordance with section 1.6(c)
of the Order;
(ii) Other categories of information, as defined in section
1.3(a)(10) of the Order, which require protection against unauthorized
disclosure but which are not specifically protected by sections 1.3(a)
(1) through (9) of the Order;
(iii) Waivers, for specified classes of documents or information of
the requirement to indicate which portions of documents are classified
and which are not, as provided by section 1.5(b) of the Order; and
(iv) Waivers for specified classes of documents or information, of
the requirement to prepare derivative classification guides, as provided
by section 2.2(c) of the Order.
(5) To prepare a list of officials, by name or position, delegated
Top Secret, Secret, and Confidential classification authority.
(6) To receive, and if necessary act on, suggestions and complaints
with respect to that agency's administration of its information security
program.
(7) To provide guidance concerning corrective or disciplinary action
in unusually important cases involving unauthorized disclosure or
refusal to declassify.
(8) To maintain liaison with the Director of ISOO and to furnish
reports and information as required by section 5.2 of the Order.
(b) Department of State. Within the Department of State, the senior
official is the Deputy Assistant Secretary,
Classification/Declassification Center, hereinafter referred to as
(DAS/CDC).
(c) AID. Within AID (a component of the International Development
Cooperation Agency), the senior official is the Inspector General.
(d) USIA. Within USIA, the senior official is the Director, Office
of the Public Liaison.
22 CFR 9.3 Responsibility for safeguarding classified information.
(a) Primary. The specific responsibility for the maintenance of the
security of classified information rests with each person having
knowledge or physical custody thereof, no matter how obtained.
(b) Individual. Each employee is responsible for becoming familiar
with and adhering to all security regulations.
(c) Supervisory. The ultimate responsibility for safeguarding
classified information rests upon each supervisor to the same degree
that the supervisor is charged with functional responsibility for the
organizational unit. While certain employees may be assigned specific
security responsibilities, such as Top Secret Control Officer or Unit
Security Officer, it is nevertheless the basic responsibility of
supervisors to ensure that classified material entrusted to their
organizational units is handled in accordance with the procedures
prescribed in these regulations. Each supervisor should ensure that no
one employee is assigned unreasonable security responsibilities in
addition to usual administrative or functional duties.
(d) Organizational. The Offices of Security in State, AID, and USIA
are responsible for physical, procedural, and personnel security in
their respective agencies. In the Department of State, the Office of
Communications (COMSEC) is responsible for communications security.
22 CFR 9.4 Classification.
(a) When there is reasonable doubt about the need to classify
information, the information shall be safeguarded as if it were
''Confidential'' pending a determination about its classification by an
original classification authority. When there is reasonable doubt about
the appropriate classification level, the information shall be
safeguarded at the higher level pending the determination of its
classification level by an original classification authority.
Determinations hereunder shall be made within 30 days.
(b) Information may not be classified unless its disclosure
reasonably could be expected to cause damage to the national security.
Information may not be classified to conceal violations of law,
inefficiency, or administrative error; to prevent embarrassment to a
person, organization, or agency; to restrain competition; or to
prevent or delay the release of information that does not require
protection in the interest of national security.
(c) The President or an agency head or official designated under
section 1.2 (a)(2), 1.2 (b)(1), or 1.2 (c)(1) of the Order may
reclassify information previously declassified and disclosed if it is
determined in writing that (1) the information requires protection in
the interest of national security, and (2) the information may
reasonably be recovered. These reclassification actions shall be
reported promptly to the Director of ISOO.
(d) It is permitted to classify or reclassify information after an
agency has received a request for it under the Freedom of Information
Act or the Privacy Act, or the mandatory review provisions of the Order,
provided that such classification meets the requirements of the Order
and is accomplished personally and on a document-by-document basis by
the agency head, the deputy agency head, the senior official, or an
official with original Top Secret classification authority. Every
effort should be made to classify properly at the time of origin. When
a determination is made that a document requires classification or
reclassification, however, all holders of the document should be
notified and, in the Department of State, a copy of the classification
or reclassification memorandum should be sent to the Foreign Affairs
Information Management Center (FAIM). In addition, if the
classification or reclassification was done in any office other than the
DAS/CDC, that office should send a copy of the pertinent memorandum to
the CDC.
(e) For the Department of State, these functions will be performed by
the DAS/CDC.
(f) For AID, the function will be performed by the Administrator.
(g) For USIA, the function will be performed by the Director of
Public Liaison.
(h) Information classified in accordance with these regulations shall
not be declassified automatically as a result of any unofficial
publication or inadvertent or unauthorized disclosure in the United
States or abroad of identical or similar information.
22 CFR 9.5 Classification designations.
(a) Only three (3) designations of classification are authorized:
''Top Secret,'' ''Secret,'' and ''Confidential.''
(1) Top Secret. Information may be classified ''Top Secret'' if its
unauthorized disclosure could reasonably be expected to cause
exceptionally grave damage to the national security. This
classification should be used with the utmost restraint. Examples of
''exceptionally grave damage'' include armed hostilities against the
United States or its allies; disruption of foreign relations vitally
affecting the national security; the compromise of vital national
defense plans or complex cryptologic and communications intelligence
systems; the revelation of sensitive intelligence operations; and the
disclosure of scientific or technological developments vital to national
security.
(2) Secret. Information may be classified ''Secret'' if its
unauthorized disclosure could reasonably be expected to cause serious
damage to the national security. This classification should be used
sparingly. Examples of ''serious damage'' include disruption of foreign
relations significantly affecting the national security; significant
impairment of a program or policy directly related to the national
security; revelation of significant military plans or intelligence
operations; and compromise of significant scientific or technological
developments relating to national security.
(3) Confidential. Information may be classified ''Confidential'' if
its unauthorized disclosure could reasonably be expected to cause damage
to the national security. Except as otherwise provided by statute, no
other terms shall be used to identify classified information. Terms or
phrases such as ''For Official Use Only'' or ''Limited Official Use''
shall not be used to identify national security information. No other
term or phrase shall be used in conjunction with these national security
information designations, such as ''Secret Sensitive'' or ''Agency
Confidential'' to identify national security information.
(b) Foreign government information. If classified by the foreign
government, the information shall either retain its original
classification or be assigned a U.S. classification designation which
will ensure a degree of protection at least equivalent to that required
by the entity that furnished the information. If not given a specific
classification by the foreign government, the information will be
assigned an appropriate classification dependent on the sensitivity of
the subject matter and the degree of damage its unauthorized disclosure
could reasonably be expected to cause to the national security.
Classification designations assigned by the U.S. agency shall be marked
on the foreign government information in accordance with the provisions
of 9.12.
22 CFR 9.6 Requirements for classification.
With the exception of the Atomic Energy Act of 1954, as amended,
these regulations are the only basis for classifying information in the
agencies named herein. To be eligible for classification, information
must meet the two following requirements:
(a) First, it must deal with one of the following criteria:
(1) Military plans, weapons, or operations;
(2) The vulnerabilities or capabilities of systems, installations,
projects, or plans relating to the national security;
(3) Foreign government information;
(4) Intelligence activities (including special activities), or
intelligence sources or methods;
(5) Foreign relations or foreign activities of the United States;
(6) Scientific, technological, or economic matters relating to the
national security;
(7) U.S. Government programs for safeguarding nuclear materials or
facilities;
(8) Cryptology;
(9) Confidential sources; or
(10) Other categories of information that are related to the national
security and that require protection against unauthorized disclosure as
determined by the President or by agency heads or other officials who
have been delegated original classification authority by the President.
In the Department of State, the DAS/CDC, as the senior official, shall
recommend such other categories of information to the Secretary. Any
determination made under this subsection shall be reported promptly to
the Director of ISOO.
(b) Second, an official with original classification authority must
determine that 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. Unauthorized
disclosure of foreign government information, the identity of a
confidential foreign source, or intelligence sources or methods is
presumed to cause damage to the national security.
(c) Certain information which would otherwise be unclassified may
require classification when combined or associated with other classified
or unclassified information. Classification on this basis shall be
supported by a written explanation that, at a minimum, shall be
maintained with the file or record copy of the information.
22 CFR 9.7 Classification authority.
(a) In the Department of State authority for original classification
of information as ''Top Secret'' may be exercised only by the Secretary
of State and those officials delegated this authority in writing, by
position or by name, by the Secretary or the DAS/CDC, as the senior
official, on the basis of their frequent need to exercise such
authority. Normally these will not be below the level of Deputy
Assistant Secretary in the Department; or Chief of Mission, Charge
d'Affairs, or principal officer at an autonomous consular post overseas.
(b) Authority for original classification of information as
''Secret'' may be exercised by officials with Top Secret authority, the
Administrator of AID, and the Director of USIA. This authority may be
delegated to such subordinate officials as the senior official in the
Department, the administrator of AID or the Director of USIA may
designate in writing, by position or by name, on the basis of their
frequent need to exercise such authority. Normally, these will not be
below the level of office director, section head (in a mission abroad),
country public affairs officer, or equivalent.
(c) Authority for original classification of information as
''Confidential'' may be exercised by officials with Top Secret or Secret
classification authority, and the President of the Overseas Private
Investment Corporation; and may be delegated to such subordinate
officials as the senior official in the Department, the Administrator of
AID, the Director of USIA, or the President of OPIC may designate in
writing, by position or by name, on the basis of their frequent need to
exercise such authority.
(d) Delegated original classification authority at any level may not
be redelegated.
(e) In the absence of an authorized classifier, the person designated
to act for that official may exercise the classifying authority.
(f) In the Department of State the Classification/Declassification
Center, and in AID and USIA the Office of Security, shall maintain a
current listing, by classification designation, of the positions or
officials carrying original classification authority. The listing shall
be reviewed as needed to ensure that such delegations have been held to
a minimum, and that officials so designated have a continuing need to
exercise such authority.
22 CFR 9.8 Limitations on classification.
A reference to classified documents which does not directly or
indirectly disclose classified information may not be classified or used
as a basis for classification.
22 CFR 9.9 Duration of classification.
(a) Information shall be classified for as long as is required by
national security considerations. 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.
(b) Information classified under predecessor orders that is not
subject to automatic declassification or that is marked for review
before declassification shall remain classified until reviewed for
declassification.
(c) Automatic declassification determinations under predecessor
orders shall remain valid unless the classification is extended by an
authorized official of the originating agency. These extensions may be
by individual documents or categories of information. The agency shall
be responsible for notifying holders of the information of such
extensions as soon as possible. The authority to extend the
classification of information subject to automatic declassification
under predecessor orders is limited to those officials who have
classification authority over the information and are designated in
writing to have original classification authority at the level of the
information to remain classified. Any decision to extend this
classification on other than a document-by-document basis shall be
reported to the Director of the ISOO.
22 CFR 9.10 Derivative classification.
(a) Derivative classification is made by a person, not necessarily
having original classification authority, based on an originally
classified document or as directed by a classification guide. The
derivative classifier may be one who reproduces, extracts, restates,
paraphrases, or summarizes classified materials, or applies markings in
accordance with source material or a classification guide.
(b) Derivative classifiers must respect original classification
markings. Only if the derived document, by means of paraphrasing,
excising, etc., has clearly lost the original grounds for
classification, may its original classification be removed or lowered.
(c) Subject to paragraph (b) of this section, markings on
derivatively classified material, including declassification
instructions, shall be carried forward from the original material, or
shall be as directed by the classification guide.
22 CFR 9.11 Derivative classification guides.
(a) Agencies with original classification authority shall prepare
classification guides to facilitate the proper and uniform derivative
classification of information, except as provided in paragraph (e) of
this section.
(b) Each guide shall be approved personally and in writing by an
official who:
(1) Has program or supervisory responsibility over the information or
is the senior agency official who directs and administers the
information security program; and
(2) Is authorized to classify information originally at the highest
level of classification prescribed in the guide.
(c) Classification guides shall, at a minimum:
(1) Identify or categorize the elements of information to be
protected;
(2) State which classification level applies to each element or
category of information; and
(3) Prescribe declassification instructions for each element or
category of information in terms of (i) a period of time, (ii) the
occurrence of an event, or (iii) a notation that the information shall
not be automatically declassified without the approval of the
originating agency.
(d) Classification guides shall be reviewed at least every two years
and updated as necessary. Each agency shall maintain a list of its
classification guides in current use.
(e) Agency heads may, for good cause, grant and revoke waivers of the
requirement to prepare classification guides for specified classes of
documents or information. In the Department of State, the DAS/CDC, as
senior official, shall make recommendations to the Secretary concerning
such waivers. In AID, the Inspector General shall make recommendations
to the Administrator concerning such waivers. In USIA, the Director of
the Office of Public Liaison shall make recommendations to the Director
concerning such waivers. The Director of ISOO shall be notified of any
waivers. The decision to waive the requirement to issue classification
guides for specific classes of documents or information should be based,
at a minimum, on an evaluation of the following factors:
(1) The ability to segregate and describe the elements of
information;
(2) The practicality of producing or disseminating the guide because
of the nature of the information;
(3) The anticipated usage of the guide as a basis for derivative
classification; and
(4) The availability of alternative sources for derivatively
classifying the information in a uniform manner.
22 CFR 9.12 Identification and markings.
Except in extraordinary circumstances as as provided in section
1.5(a) of the Order, or as indicated herein, the marking of paper
documents shall not deviate from the following prescribed formats.
These markings shall also be affixed to material other than paper
documents, or the originator shall provide holders or recipients of the
information with written instructions for protecting the information.
These markings include one of the three (3) classification levels
defined in 9.5, the identity of the original classification authority
(except as noted under paragraph (b)(ii) of this section) the agency and
office of origin (except as noted under paragraph (b)(ii) of this
section) and the date or event for declassification or the notation
''Originating Agency's Determination Required'' (OADR).
(a) Classification level. The markings ''Top Secret,'' ''Secret,''
and ''Confidential'' are used to indicate: That information requires
protection as national security information under the Order; the
highest level of classification contained in a document; and the
classification level of each page and, in abbreviated form, each portion
of a document.
(1) Overall marking. The highest level of classification of
information in a document shall be marked in such a way as to
distinguish it clearly from the informational text. These markings
shall appear at the top and bottom of the outside of the front cover (if
any), on the title page (if any), on the first page, and on the outside
of the back cover (if any).
(2) Page marking. Each interior page of a classified document shall
be marked at the top and bottom either according to the highest
classification of the content of the page, including the designation
''UNCLASSIFIED'' when it is applicable, or with the highest overall
classification of the document.
(3) Portion-marking. Agency heads may waive the portion marking
requirement for specified classes of documents or information only upon
a written determination that (i) there will be minimal circulation of
the specified documents or information and minimal potential usage of
these documents or information as a source for derivative classification
determination; or (ii) there is some other basis to conclude that the
potential benefits of portion marking are clearly outweighed by the
increased administrative burdens. Unless this requirement has been
waived, each portion of a document, including subjects and titles, shall
be marked by placing a parenthetical designation immediately preceding
or following the text to which it applies. The symbols ''(TS)'' for Top
Secret, ''(S)'' for Secret, ''(C)'' for Confidential, and ''(U)'' for
Unclassified shall be used for this purpose. If the application of
these symbols is not practicable, the document shall contain a statement
sufficient to identify the information that is classified and the level
of such classification, and the information that is not classified. If
all portions of a document are classified at the same level, it may be
marked with a statement to that effect, e.g., ''Confidential -- Entire
Text.'' If a subject or title requires classification, an unclassified
identifier may be assigned to facilitate reference.
(A) For the Department of State, the Secretary has waived the portion
marking requirement for the following classes of documents under section
2001.5(a)(3)(i) of the Directive -- documents which will have minimal
circulation and minimal potential usage as a source for derivative
classification:
(1) Documents containing Top Secret information;
(2) Action/informational memoranda prepared for Assistant Secretaries
and above;
(3) Instructions to posts and negotiating delegations;
(4) In-house research studies; and
(5) Inter and intra-office memoranda.
(B) The Secretary has also waived the portion marking requirement for
documents, both telegraphic and non-telegraphic, containing foreign
government information, under section 2001.5(a)(3)(ii) of the Directive.
(4) Omitted markings. Information assigned a level of classification
under predecessor orders shall be considered as classified at the level
of classification despite the omission of other required markings.
Omitted markings may be inserted on a document by the officials
specified in section 3.1(b) of the Order.
(b) Classification authority. If the original classifier is other
than the signer or approver of the document, the identity shall be shown
as ''CLASSIFIED BY'' (''identification of original classification
authority'').
(c) Agency and office of origin. If the identity of the originating
agency and office is not apparent on the face of the document, it shall
be placed below the ''CLASSIFIED BY'' line.
(d) Declassification and downgrading instructions. Declassification
and, as applicable, downgrading instructions shall be shown as follows:
(1) For information to be declassified automatically on a specific
date or event: ''DECLASSIFY ON: (date)'' or ''DECLASSIFY ON:
(description of event)''.
(2) For information not to be automatically declassified:
''DECLASSIFY ON: Originating Agency Determination Required or OADR''.
(3) For information to be downgraded automatically on a specific date
or upon occurrence of a specific event: ''DOWNGRADE TO (classification
level) ON (date or description of event)''.
(e) Special markings -- (1) Transmittal documents. A transmittal
document shall indicate on its face the highest classification of any
information transmitted by it. It shall also include the following or
similar instructions:
(i) For an unclassified transmittal document: ''Unclassified When
Classified Enclosure is Removed;'' or
(ii) For classified transmittal document: ''Upon Removal of
Attachments This Document Is (classification level of the transmittal
document standing alone).''
(2) Restricted Data or Formerly Restricted Data. Restricted Data and
Formerly Restricted Data information shall be marked in accordance with
regulations issued under the Atomic Energy Act of 1954, as amended.
(3) Intelligence sources or methods. Documents that contain
information relating to intelligence sources or methods shall include
the following markings unless otherwise prescribed by the Director of
Central Intelligence: ''WARNING NOTICE -- INTELLIGENCE SOURCES OR
METHODS INVOLVED.''
(4) Foreign government information (FGI). Documents that contain FGI
shall include either the marking ''FOREIGN GOVERNMENT INFORMATION'', or
a marking that otherwise indicates that the information is foreign
government information. If the fact that information is foreign
government information must be concealed, the marking shall not be used
and the document shall be marked as if it were wholly of U.S. origin.
(5) Electrically transmitted information (messages, cables).
National security information that is transmitted electrically shall be
marked as follows:
(i) The highest level of classification shall appear before the first
line of text;
(ii) A ''Classified By'' line is not required; i.e., name and office
of classifier may be omitted; and
(iii) The duration of classification shall appear as follows:
(A) For information to be declassified automatically on a specific
date or event: ''DECL: (date)'' or ''DECL: (description of event).''
(B) For information not to be automatically declassified which
requires the originating agency's determination: ''DECL: OADR.''
(C) For information to be automatically downgraded: ''DNG
(abbreviation of classification level to which the information is to be
downgraded and date or description of event on which downgrading is to
occur).''
(iv) Portion marking shall be as prescribed in paragraph (a)(3) of
this section.
(v) Special markings as prescribed in section 2001.5(e) 2, 3, & 4 of
the Directive shall appear after the marking for the highest level of
classification. These include:
(A) Restricted Data or Formerly Restricted Data: Electrically
transmitted information containing Restricted Data or Formerly
Restricted Data shall be marked in accordance with regulations issued
under the Atomic Energy Act of 1954, as amended.
(B) Information concerning intelligence sources and methods;
''WNINTEL,'' unless proscribed by the Director of Central Intelligence.
(C) Foreign government information: ''FGI'' or a marking that
otherwise indicates that the information is foreign government
information. If the fact must be concealed, the marking shall not be
used and the message shall be marked as if it were wholly of U.S.
origin.
(vi) Paper copies of electrically transmitted messages shall be
marked as provided in paragraph (a) through (e) of this section.
(6) Changes in classification markings. When a change is made in the
level or the duration of classified information, all holders of record
shall be promptly notified. Holders shall alter the markings to conform
to the change, citing the authority for it. If the remarking of large
quantities of information is unduly burdensome, the holder may attach a
change of classification notice to the storage unit in lieu of the
marking action otherwise required. Items withdrawn from the collection
for purposes other than transfer for storage shall be marked promptly in
accordance with the change notice.
22 CFR 9.13 Transferred material.
(a) In the case of classified information transferred in conjunction
with a transfer of functions, and not merely for storage purposes, the
receiving agency shall be deemed to be the originating agency for
purposes of the Order.
(b) In the case of classified information that is not officially
transferred as described in section 3.2(a) of the Order, but that
originated in an agency that has ceased to exist and for which there is
no successor agency, each agency in possession of such information shall
be deemed to be the originating agency for purpose of the Order. Such
information may be declassified or downgraded by the agency in
possession after consultation with any other agency that has an interest
in the subject matter of the information.
(c) Classified information accessioned into the National Archives of
the United States shall be declassified or downgraded by the Archivist
of the United States in accordance with the Order, the Directive, and
agency guidelines.
22 CFR 9.14 Declassification and downgrading.
(a) General. Information should be declassified or downgraded as
soon as national security considerations permit. Information will be
protected in accordance with the provisions of the Order for as long as
it meets the classification requirements prescribed by these
regulations. Agencies shall coordinate their review of classified
information with other agencies or foreign governments that have a
direct interest in the subject matter.
(b) Authority to declassify or downgrade. Information shall be
declassified or downgraded by the official who authorized the original
classification, if that official is still serving in the same position;
the originator's successor; a supervisory official of either; or
officials delegated such authority in writing by the agency head or the
senior agency official designated pursuant to section 5.3(a)(1) of the
Order. In addition, if the Director of ISOO determines that information
is classified in violation of the Order, the Director may require the
agency which classified the information to declassify it. Any such
decision by the Director may be appealed to the National Security
Council. The information shall remain classified until a decision has
been made on the appeal.
(c) The agency shall maintain a current, unclassified, listing of
officials delegated declassification and downgrading authority.
22 CFR 9.15 Systematic review for declassification guidelines.
(a) The agency may schedule classified records of permanent
historical or other value for bulk review for declassification and may
either perform such review itself, or may refer the records, together
with guidelines for declassification, to the Archivist of the United
States for review.
(b) For records of the Department of State, a sampling of classified
records of permanent value for a given period will be selected by the
Office of the Historian (PA/HO), and reviewed by the Systematic Review
Office of the Classification/Declassification Center. The Systematic
Review Office will prepare guidelines, which will be transmitted by the
Secretary of State to the Archivist of the United States, not later than
February 1, 1983, for use in reviewing the remainder of the permanently
valuable classified records of the given period when these records are
accessioned to the National Archives.
(c) AID will prepare guidelines, and transmit them to the Archivist
of the United States not later than February 1, 1983, for use in
reviewing permanently valuable classified records that have been
accessioned to the National Archives. The Records Management Branch,
Communications and Records Management Division, (M/SER/MO), is
designated as the office responsible for systematic review matters
within the agency. The Branch Staff will provide assistance to the
Archivist in the systematic review process.
(d) For information concerning records of ICA, contact the agency's
Declassification Officer, Office of Administration.
(e) The agency guidelines will identify categories of information
which cannot be automatically declassified but must be reviewed
item-by-item to determine if there is a need for continued protection.
(f) These guidelines may be authorized by the agency head for use by
other agencies, in addition to the National Archives, having custody of
the originating agency's classified information of the period covered.
(g) These guidelines shall be reviewed and updated every five years,
unless earlier review is requested by the Archivist.
(h) For foreign government information, the agency will prepare by
February 1, 1983, specific guidelines for systematic review of foreign
government information in records accessioned to the National Archives,
and will revise such guidelines every five years or earlier as requested
by the Archivist.
(i) Special procedures. The agency shall be bound by the special
procedures for systematic review of classified cryptologic records and
classified records pertaining to intelligence activities (including
special activities) sources or methods issued by the Secretary of
Defense and the Director of Central Intelligence, respectively.
22 CFR 9.16 Mandatory review.
Each agency shall review for declassification any classified
information requested, under the Mandatory Review provisions of the
Order except as noted in paragraph (d) of this section, provided that:
The requester is a U.S. citizen, resident alien, Federal agency, or
state or local government; the request describes the information with
sufficient specificity to enable the agency to locate the records
containing the information with a reasonable amount of effort; and the
agency receiving the request is the agency that originated the
information. When an agency receives a request for information in its
custody which was originated by another agency, it shall refer the
information and request to the originating agency for its review and
direct response to the requester.
(a) Foreign government information. Except as provided in this
paragraph, agencies shall process mandatory review requests for
classified records containing foreign government information in
accordance with 2001.32(a) of the ISOO Directive. The agency that
initially received or classified the foreign government information
shall be responsible for making a declassification determination after
consultation with concerned agencies. If the agency receiving the
request is not the agency that received or classified the foreign
government information, it shall refer the request to the appropriate
agency for action. Consultation with the foreign originator through
appropriate channels may be necessary prior to final action on the
request.
(b) Information requested shall be declassified if it no longer
requires protection under the provisions of the Order. It will then be
released to the requester unless withholding is otherwise authorized
under applicable law, such as the Freedom of Information or Privacy Act.
If the information requested cannot be declassified in its entirety,
the agency will make reasonable efforts to release those declassified
portions that constitute a coherent segment. Upon the denial of an
initial request, the agency shall also notify the requester of the right
of administrative appeal, which must be filed within 60 days of receipt
of the denial, and shall enclose a copy of the agency's regulations
governing the appeal process.
(c) Initial requests may be addressed to:
(1) Department of State: The Information and Privacy Coordinator,
Room 1239, Bureau of Administration, Department of State, Washington,
D.C. 20520, with the envelope clearly marked MANDATORY REVIEW REQUEST;
(2) AID: Director, Office of Public Affairs for AID; Room 4899,
2201 C Street, NW., Washington, D.C. 20523; or
(3) USIA: Freedom of Information and Privacy Act Coordinator, Office
of Administration, 1776 Pennsylvania Avenue, NW., Washington, D.C.
20547.
(d) In responding to mandatory review requests, agencies shall either
make a prompt declassification determination and notify the requester
accordingly, or inform the requester of the additional time needed to
process the case. Agencies shall make a final determination in one year
from the date of receipt, except in unusual circumstances.
(e) Information originated by a President, the White House Staff, by
committees, commissions, or boards appointed by the President, or others
specifically providing advice and counsel to a President or acting on
behalf of a President is exempted from mandatory review. However, the
Archivist of the United States has the authority to review, downgrade,
and declassify such information which is under the control of the
Administrator of General Services or the Archivist, for example in
Presidential Libraries, pursuant to section 2107, 2107 note, or 2203 of
title 44, United States Code. The Archivist will consult with agencies
having primary subject matter interest concerning the declassification
of the requested material. Any decision by the Archivist may be
appealed to the Director of ISOO, with the right of further appeal to
the National Security Council. The information shall remain classified
pending a prompt decision on the appeal.
(f) Requests for classified information not specifically identified
as being made under the Mandatory Review provisions of the Order will be
processed under the terms of the FOIA, the Privacy Act, or other
appropriate procedures.
(g) In considering requests for mandatory review, the agency may
decline to review again any request for material which has been recently
reviewed and denied, unless the request constitutes an appeal of an
initial denial.
(h) Mandatory review requests for cryptologic information and
information concerning intelligence activities (including special
activities) or intelligence sources or methods shall be processed solely
in accordance with special procedures issued by the Secretary of Defense
and the Director of Central Intelligence, respectively.
(i) In response to a request for information under the Freedom of
Information Act, the Privacy Act of 1974, or the mandatory review
provisions of the Order, an agency shall refuse to confirm or deny the
existence or non-existence of requested information whenever the fact of
its existence or non-existence is itself classifiable under these
regulations.
(j) For detailed regulations for the internal processing of mandatory
review initial requests and appeals see:
(1) Department of State: 5 FAM 900, 22 CFR 171.22 and 171.60;
(2) AID: AID Handbook 18, Part III, Chapter 11; or
(3) USIA: 22 CFR Part 503.
22 CFR 9.17 Schedule of fees.
For State, see 22 CFR 171.6 and 171.13; For AID, see 22 CFR 212.35;
or For USIA, see 22 CFR 503.6(c).
22 CFR 9.18 Access by presidential appointees.
For procedures of the Department of State, see 22 CFR 171.25; For
procedures of AID, see 22 CFR 171.25; or For procedures of USIA, see 22
CFR Part 503.
22 CFR 9.18 Pt. 9, App. A
22 CFR 9.18 Appendix A to Part 9 -- Definitions
For the purpose of these security regulations, the following
definitions of terms shall apply.
Agency. A Federal agency, including department, agency, commission
etc, as defined in 5 U.S.C. 552(e).
Original classification. The initial determination that, in the
interest of national security, information requires protection against
unauthorized disclosure, together with a classification designation
signifying the level of protection required.
Original classification authority. The authority vested in an
executive branch official to make a determination of original
classification. A person having original classification authority may
also have the authority to prolong or restore classification.
Originating agency. The agency responsible for the initial
determination that particular information is classified.
Information. Any information or material, regardless of its physical
form or characteristics, that is owned by, produced by or for, or is
under the control of the U.S. Government.
National security information. Information that has been determined
pursuant to this Order or any predecessor Order to require protection
against unauthorized disclosure and that is so designated.
Foreign government. Includes foreign governments and international
organizations of governments.
Foreign government information. Foreign government information is:
(1) Information provided by a foreign government or governments, an
international organization of governments, or any element thereof with
the expectation, expressed or implied, that the information, the source
of the information, or both, are to be held in confidence; or (2)
Information produced by the United States pursuant to or as a result of
a joint arrangement with a foreign government or governments or an
international organization of governments, or any element thereof,
requiring that the information, the arrangement, or both, are to be held
in confidence.
National security. The national defense or foreign relations of the
United States.
Confidential source. Any individual or organization that has
provided, or that may reasonably be expected to provide, information to
the United States on matters pertaining to the national security with
the expectation, expressed or implied, that the information or
relationship, or both, be held in confidence.
Classification guide. A document issued by an authorized original
classifier that prescribes the level of classification and appropriate
declassification instructions for specified information to be classified
derivatively.
Derivative classification. A determination that information is in
substance the same as information currently classified, together with
the designation of the level of classification.
Special access program. Any program imposing ''need-to-know'' or
access controls beyond those normally provided for access to
Confidential, Secret, or Top Secret information. Such a program may
include, but is not limited to, special clearance, adjudication, or
investigative requirements, special designations of officials authorized
to determine ''need-to-know,'' or special lists of persons determined to
have a ''need-to-know.'' It does not include special captions such as
NODIS, LIMDIS.
Intelligence activity. An activity that an agency within the
Intelligence Community is authorized to conduct pursuant to the Order.
Unauthorized disclosure. A communication or physical transfer of
classified information to an unauthorized recipient.
22 CFR 9.18 PART 9a -- SECURITY INFORMATION REGULATIONS APPLICABLE TO
CERTAIN INTERNATIONAL ENERGY PROGRAMS; RELATED MATERIAL
Sec.
9a.1 Security of certain information and material related to the
International Energy Program.
9a.2 General policy.
9a.3 Scope.
9a.4 Classification.
9a.5 Declassification and downgrading.
9a.6 Marking.
9a.7 Access.
9a.8 Physical protection.
Authority: E.O. 11932 (41 FR 32691), E.O. 11652 (37 FR 5209,
National Security Council Directive of May 17, 1972 (37 FR 10053).
Source: 42 FR 46516, Sept. 16, 1977; 42 FR 57687, Nov. 4, 1977,
unless otherwise noted.
22 CFR 9a.1 Security of certain information and material related to the
International Energy Program.
These regulations implement Executive Order 11932 dated August 4,
1976 (41 FR 32691, August 5, 1976) entitled ''Classification of Certain
Information and Material Obtained from Advisory Bodies Created to
Implement the International Energy Program.''
22 CFR 9a.2 General policy.
(a) The United States has entered into the Agreement on an
International Energy Program of November 18, 1974, which created the
International Energy Agency (IEA). This program is a substantial factor
in the conduct of our foreign relations and an important element of our
national security. The effectiveness of the Agreement depends
significantly upon the provision and exchange of information and
material by participants in advisory bodies created by the IEA.
Confidentiality is essential to assure the free and open discussion
necessary to accomplish the tasks assigned to those bodies.
(b) These regulations establish procedures for the classification,
declassification, storage, access, and dissemination of certain
information related to the International Energy Program.
22 CFR 9a.3 Scope.
These regulations apply to all information and material classified by
the United States under the provisions of E.O. 11932, dated August 4,
1976 entitled ''Classification of Certain Information and Material
Obtained From Advisory Bodies Created To Implement The International
Energy Program.''
22 CFR 9a.4 Classification.
(a) Section 1 of E.O. 11932, August 4, 1976 directs that information
and material obtained pursuant to the International Energy Program and
which requires protection against unauthorized disclosure in the
interest of the national defense or foreign relations of the United
States shall be classified pursuant to Executive Order 11652.
(b) Information and material, including transcripts, records, and
communications, in the possession of the United States Government which
has been obtained pursuant to (1) section 252(c)(3), (d)(2) or (e)(3) of
the Energy Policy and Conservation Act (89 Stat. 871, 42 U.S.C.
6272(c)(3), (d)(2), (e)(3)), or (2) The Voluntary Agreement and Program
Relating to the International Energy Program (40 FR 16041, April 8,
1975), or (3) the Voluntary Agreement and Plan of Action to Implement
the International Energy Program (41 FR 13998, April 1, 1976), or (4)
Any similar Voluntary Agreement and Program entered into under the
Energy Policy and Conservation Act shall be reviewed by an officer of
the Department of State with classifying authority for the purpose of
determining whether such information or material should be classified
pursuant to E.O. 11652. If the officer determines that the information
or material warrants classification, he shall assign it the appropriate
classification. Such information or material may be exempted from the
General Declassification Schedule established by section 5 of Executive
Order No. 11652 if it was obtained by the United States on the
understanding that it be kept in confidence, or if it might otherwise be
exempted under section 5(B) of such Order.
(c) In classifying such information or material, officers of the
Department of State shall follow the standards in E.O. 11652 and the
provisions of 22 CFR 9.5 through 9.8.
22 CFR 9a.5 Declassification and downgrading.
The provisions of E.O. 11652, 22 CFR 9.9 through 9.15, and 9a.4(b)
shall govern declassification and downgrading of such information or
material.
22 CFR 9a.6 Marking.
(a) The provisions of 22 CFR 9.15 through 9.19 shall govern the
marking of information or material classified under the provisions of
these regulations, except that the following stamp shall be used as
appropriate:
(Top Secret, Secret or Confidential)
Classified by: ------------------------------
Under Executive Order 11932
Exempt from General Declassification Schedule of E.O. 11652 Exemption
Category section 5B (2), (3), or (4); or E.O. 11932
Automatically Declassified on --------------
(effective date or event if any)
Exemption category ''E.O. 11932'' shall be used for information and
material obtained by the United States on e understanding that it be
kept in confidence and classified under E.O. 11932.
(b) If the information or material does not qualify for exemption
from the General Declassification Schedule, ordinary stamps and marking
may be used.
22 CFR 9a.7 Access.
(a) Except as set forth in this section, access to information or
material classified under the provisions of these regulations shall be
governed by the provisions of 22 CFR 9.20 through 9.25.
(b) Classified information and material which was created by or in
connection with an advisory body to the IEA may be made available to
participants in such advisory body and their colleagues in accordance
with the following subsections.
(c) Such information and material classified ''Confidential'' may be
made available for review to participants in the meeting of the advisory
body in which it was developed or discussed. Where participants are
acting as representatives of companies or of the IEA Secretariat, such
information and material may be made available for review to employees
or other representatives of, or counsel for, such companies or
Secretariat: Provided, That such person is determined by an appropriate
officer of the Department to be trustworthy and to have a need for
access to the particular classified information sought in connection
with the performance of duties in furtherance of the purposes of the
IEA, including the furnishing of legal advice to such participants.
(d) Such information and material classified ''Confidential'' may be
left in the custody of such participants or other persons who may review
it for reasonable period of time: Provided, That an appropriate officer
of the Department determines that it will be protected from unauthorized
disclosure by adequate security safeguards. Such information or
material may not be reproduced by those permitted to review it pursuant
to this section without the written consent of an officer of the
Department with classifying authority.
(e) Such information and material classified other than
''Confidential'' under E.O. 11652 may be made available for review only
to participants in the meeting in which it was developed or discussed;
it must be reviewed in the presence of an official of the United States
Government with an appropriate security clearance granted by the
Department, and may not be left in the custody of such participants.
22 CFR 9a.8 Physical protection.
Except as provided in 9a.7, the physical protection of information
or material classified under this regulation shall be governed by the
appropriate provisions of 22 CFR 9.45 through 9.49.
22 CFR 9a.8 PART 9b -- REGULATIONS GOVERNING DEPARTMENT OF STATE PRESS
BUILDING PASSES
Sec.
9b.1 Press access to the Department of State.
9b.2 Press correspondents employed by American media organizations.
9b.3 Press correspondents employed by foreign media organizations.
9b.4 Department of State building press pass for technical crews.
9b.5 Temporary Department of State press building passes.
9b.6 Grounds for denial, revocation, or non-renewal of Department of
State press building passes.
9b.7 Procedures for denial, revocation, or non-renewal of Department
of State press building passes.
9b.8 Term and renewal of Department of State press building passes.
Authority: 22 U.S.C. 2658.
Source: 49 FR 4465, Feb. 7, 1984, unless otherwise noted.
22 CFR 9b.1 Press access to the Department of State.
(a) Media correspondents without valid Department of State press
building passes shall have access to the Main State building identical
to that enjoyed by members of the public.
(b) Media correspondents holding valid Department of State press
building passes:
(1) May enter and have access 24 hours a day, during regular working
hours, outside regular working hours, on weekends and on holidays,
without an appointment, to the reception area of the Diplomatic Lobby, C
Street Mezzanine area, press booths (Room 2310), press briefing room
(Room 2118), and when in operation, the Office of Press Relations (Room
2109).
(2) May enter and have access without an appointment, on the basement
level or on the first and second floors, to the cafeteria, post office,
banks, concessionaries, barber shop, dry cleaners and the Foreign
Affairs Recreation Association offices for the purposes for which they
are established and when they are in operation.
(3) May not escort non-passholders into the Department of State
building.
(c) Media correspondents, with or without a Department of State press
building pass, may enter areas above the second floor of the Main State
building only if the correspondent is invited by a Department employee
to attend a specific social or official function in an office located
above the second floor. Permission to enter areas above the second
floor is strictly limited to direct passage to and from the appointment
location of the Department of State employee, or the office or reception
room where the function takes place.
(d) Possession of State Department press building pass does not
confer access to or other privileges at other Federal buildings. It is
not to be construed as official United States Government recognition,
approval or accreditation of a correspondent.
(54 FR 1686, Jan. 17, 1989)
22 CFR 9b.2 Press correspondents employed by United States media
organizations.
In order to obtain a Department of State press building pass, press
correspondents employed by United States media organizations must:
(a) Present to the Office of Press Relations, Department of State, a
letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent
based permanently and residing in the Washington, DC, metropolitan area;
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and
substantial assignments in connection with the Department of State as
evidence by regular attendance at the daily press briefings.
(b) Submit to the Office of Press Relations, Department of State,
Washington, DC. 20520, a signed application and FORM DSP-97 for a press
building pass. Applicants must comply with instructions contained in
paragraphs 1 and 6 of FORM DSP-97 regarding fingerprinting and prior
arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
(49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1686, Jan. 17, 1989)
22 CFR 9b.3 Press correspondents employed by foreign media
organizations.
In order to obtain a Department of State press building pass,
correspondents employed by foreign media organizations must:
(a) Present to the Office of Press Relations, Department of State,
Washington, D.C. 20520 a letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent
based permanently and residing in the Washington, DC., metropolitan
area:
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and
substantial assignments in connection with the Department of State as
evidence by regular attendance at the daily press briefings.
(b) A letter from the Washington, D.C. Embassy of the nation where
the organization is headquartered or from the Embassy of the United
States in the nation where the organization is headquartered attesting
to the existence of the news organization and the applicant's employment
by that organization. The Director of the Office of Press Relations may
accept a letter from another source attesting to the existence of such
news organizations and the applicant's employment if, in his or her
judgment, a substitute letter is warranted.
(c) Submit to the Office of Press Relations, Department of State,
Washington, DC. 20520 a signed application and FORM DSP-97 for a press
building pass. Applicants must comply with instructions contained in
paragraphs 1 and 6 of FROM DSP-97 regarding fingerprinting and prior
arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
(49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989)
22 CFR 9b.4 Department of State building press pass for technical
crews.
Department of State press building passes are issued to members of
television and radio technical crews who provide technical support on a
daily basis for media correspondents assigned to the Department of
State. Members of technical crews who do not possess press passes, but
who provide technical support for media correspondents assigned to the
Department of State, may apply to the Office of Press Relations for a
visitor's pass valid for one day.
(54 FR 1687, Jan. 17, 1989)
22 CFR 9b.5 Temporary Department of State press building passes.
A media correspondent or technician who meets all the qualifications
stated in 9b.2(a)(1) and 9b.2(a)(2) or 9b.3(a) and 9b.3(b), but does
not have regular and substantial assignments in connection with the
Department of State may make arrangements with the Office of Press
Relations for the issuance of a visitor's pass valid for one day.
(54 FR 1687, Jan. 17, 1989)
22 CFR 9b.6 Grounds for denial, revocation, or non-renewal of
Department of State press building passes.
In consultation with the Bureau of Diplomatic Security and the Office
of the Legal Adviser, the Director of the Office of Press Relations of
the Department of State, may deny, revoke, or not renew the Department
of State press building pass of any media correspondent or technician
who:
(a) Does not meet the qualifications stated in 9b.2(a)(1),
9b.2(a)(2) and 9b.2(a)(3) or 9b.3(a)(1), 9b.3(a)(2), 9b.3(a)(3) and
9b.3(b). (Upon denial, revocation, or non-renewal the correspondent or
technician may not re-apply for a period of one year unless there are
material changes in meeting the qualifications.) or,
(b) Poses a risk of harm to the personal safety of Department of
State or other Governmental personnel or to Government property; or
(c) Engages or engaged in conduct which there are reasonable grounds
to believe might violate federal or state law or Department of State
regulations.
(d) Has been convicted of a felony (or a crime in a foreign country
that would be considered a felony if it were committed in the United
States).
(e) Fails to claim an approved authorization form for a State
Department press building pass after notification by the Office of Press
Relations following a period of three (3) months.
(49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 15, 1989)
22 CFR 9b.7 Procedures for denial, revocation, or non-renewal of
Department of State press building passes.
(a) If the Director of the Office of Press Relations, Department of
State, anticipates, after consultation with the Office of the Legal
Adviser, that in applying the standard set forth in 9b.6 a Department
of State press building pass might be denied, revoked or not renewed,
the media correspondent or technician will be notified in writing by the
Director of the basis for the proposed denial in as much detail as the
security of any confidential source of information will permit. This
notification will be sent by registered mail.
(b) The notification of the proposed denial, revocation or
non-renewal sent to the correspondent will also contain a statement
advising the correspondent of his or her right to respond to the
proposed denial and to rebut any factual basis supporting the proposed
denial.
(c) The correspondent shall be allowed thirty (30) days from the date
of the mailing of the proposed denial, revocation or non-renewal
notification to respond in writing. The response shall consist of any
explanation or rebuttal deemed appropriate by the correspondent and will
be signed by the correspondent under oath or affirmation.
(d) If the correspondent is unable to prepare a response within 30
days, an extension for one additional 30-day period will be granted upon
receipt of the correspondent's written request for such an extension.
(e) At the time of the filing of the media correspondent's or
technician's written response to the notification of the proposed
denial, revocation or non-renewal, the correspondent or technician may
request, and will be granted, the opportunity to make a personal
appearance before the Director of the Office of Press Relations,
Department of State, for the purpose of personally supporting his/her
eligibility for a press pass and to rebut or explain the factual basis
for the proposed denial. The Director shall exercise, in consultation
with the Bureau of Diplomatic Security and the Office of the Legal
Adviser, final review authority in the matter. The correspondent or
technician may be represented by counsel during this appearance.
(f)(1) On the basis of the correspondent's or technician's written
and personal response and the factual basis for the proposed denial,
revocation or non-renewal, the Director of the Office of Press
Relations, Department of State, will consult with the Bureau of
Diplomatic Security and the Office of the Legal Adviser to determine
whether or not further inquiry or investigation concerning the issues
raised is necessary.
(2) If a decision is made that no such inquiry is necessary, a final
decision will be issued in conformity with paragraph (g) of this
section.
(3) If a decision is made that such further inquiry is necessary, the
Director of the Office of Press Relations of the Department of State,
the Bureau of Diplomatic Security and the Office of the Legal Adviser
will conduct such further inquiry as is deemed appropriate. At the
Director's discretion the inquiry may consist of:
(i) The securing of documentary evidence:
(ii) Personal interviews:
(iii) An informal hearing:
(iv) Any combination of paragraphs (f)(3)(i) through (f)(3)(iii) of
this section.
(g) On the basis of the correspondent's or technician's written and
personal response, the factual basis for the proposed denial and the
additional inquiry provided for if such inquiry is conducted, the
Director of the Office of Press Relations of the Department of State
will consult with the Bureau of Diplomatic Security and the Office of
the Legal Adviser and expeditiously reach a final decision in accordance
with the standard set forth in 9b.6. If a final adverse decision is
reached, the correspondent or technician will be notified of this final
decision in writing. This notification will set forth as precisely as
possible, and to the extent that security considerations permit, the
factual basis for the denial in relation to the standard set forth in
9b.6. This notification will be sent by registered mail and will be
signed by the Director of the Office of Press Relations of the
Department of State.
(49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989)
22 CFR 9b.8 Term and renewal of Department of State press building
passes.
Department of State press building passes are valid for either three
or four years. Department of State press building pass holders must,
nevertheless, submit a letter annually from their employing media
organizations attesting that they continue to cover the Department of
State for that organization on a regular and substantial basis. If the
correspondent fails to supply such a letter by a previously announced
date, his/her press building pass will be subject to revocation as set
out in 9b.7.
(54 FR 1687, Jan. 17, 1989)
22 CFR 9b.8 SUBCHAPTER B -- PERSONNEL
22 CFR 9b.8 Pt. 10
22 CFR 9b.8 PART 10 -- EMPLOYEE RESPONSIBILITIES AND CONDUCT
22 CFR 9b.8 Subpart A -- General Provisions
Sec.
10.735-101 Purpose.
10.735-102 Definitions.
10.735-103 Interpretation and advisory service.
10.735-104 Applicability to detailed employees.
10.735-105 Disciplinary action.
22 CFR 9b.8 Subpart B -- Ethical and Other Conduct and Responsibilities
of Employees
10.735-201 General.
10.735-202 Gifts, entertainment, and favors.
10.735-203 Gifts from foreign governments.
10.735-204 Outside employment and other activity.
10.735-205 Financial interests.
10.735-206 Economic and financial activities of employees abroad.
10.735-207 Use of Government property.
10.735-208 Misuse of information.
10.735-209 Indebtedness.
10.735-210 Gambling, betting, and lotteries.
10.735-211 Activities relating to private organizations and politics.
10.735-212 Wearing of uniforms.
10.735-213 Recommendations for employment.
10.735-214 Transmitting communications and gifts.
10.735-215 General conduct prejudicial to the Government.
10.735-216 Miscellaneous statutory provisions.
10.735-217 Requesting exceptions from certain statutory prohibitions.
22 CFR 9b.8 Subpart C -- Ethical and Other Conduct and Responsibilities
of Special Government Employees
10.735-301 Conflicts of interest.
10.735-302 Use of Government employment.
10.735-303 Use of inside information.
10.735-304 Coercion.
10.735-305 Gifts, entertainment, and favors.
10.735-306 Miscellaneous statutory provisions.
22 CFR 9b.8 Subpart D -- Statements of Employment and Financial
Interests
Sec.
10.735-401 Employees required to submit statements.
10.735-402 Employees not required to submit statements.
10.735-403 Employee's complaint on filing requirement.
10.735-404 Time and place of submission, and forms.
10.735-405 Information required.
10.735-406 Submission of position description.
10.735-407 Supplementary statements.
10.735-408 Review of statements and determination as to conflicts of
interest.
10.735-409 Confidentiality of employees' statements.
10.735-410 Effect of employees' statements on other requirements.
10.735-411 Disqualification procedures.
Authority: EO 11222 of May 8, 1965, as amended; 5 CFR 735.104.
Source: 43 FR 18976, May 2, 1978, unless otherwise noted.
22 CFR 9b.8 Subpart A -- General Provisions
22 CFR 10.735-101 Purpose.
The maintenance of the highest 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. The avoidance of misconduct and conflicts of interest
on the part of Government employees and special Government employees
through informed judgment is indispensable to the maintenance of these
standards. To accord with these concepts the regulations in this part
prescribe standards of conduct and responsibilities for employees and
special Government employees and require statements reporting employment
and financial interests.
Note: These regulations are codified in State 3 FAM 620, AID
Handbook 24, and ICA MOA V-A 550.
22 CFR 10.735-102 Definitions.
(a) Agency means the Department of State (State), the Agency for
International Development (AID), and the International Communication
Agency (ICA).
(b) Employee means an officer or employee at home or abroad, of an
agency named in paragraph (a) of this section, but does not include a
special Government employee or a member of the Army, Navy, Air Force,
Marine Corps, Coast Guard, National Oceanic and Atmospheric
Administration, or Public Health Service.
(c) Executive order means Executive Order 11222 of May 8, 1965, as
amended.
(d) Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company, or
any other organization or institution.
(e) Special Government employee means an officer or employee of an
agency 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 either on a full-time
or intermittent basis.
(f) Member of an employee's family means a spouse, minor child, or
other member of an employee's immediate household. For the purpose of
these regulations ''member of an employee's immediate or in-law
household'' means those blood relations who are residents of the
employee's household.
(g) Counselor means the agency's Counselor on Ethical Conduct and
Conflicts of Interest.
22 CFR 10.735-103 Interpretation and advisory service.
(a) Counseling services on employee responsibilities and conduct are
available in each agency. These services are to be coordinated by a
Counselor appointed by the agency head. The Counselors are for State:
The Legal Adviser; for AID: The Deputy General Counsel; and for ICA:
The General Counsel. The Counselor serves as the agency's designee to
the Civil Service Commission on matters covered by the regulations in
this part and is responsible for coordination of the agency's counseling
services under paragraph (b) of this section and for assuring that
counseling and interpretations on questions of conflicts of interest and
other matters covered by these sections are available to deputy
counselors designated under paragraph (b) of this section.
(b) Each agency head may designate deputy counselors for the agency's
employees and special Government employees. Deputy Counselors
designated under this section must be qualified and in a position to
give authoritative advice and guidance to each employee and special
Government employee who seeks advice and guidance on questions of
conflicts of interest and on other matters covered by the regulations in
this part. A Washington employee or special Government employee should
address any inquiries concerning the regulations in this part to the
Counselor. At missions abroad the chief of each agency's establishment
designates an officer, preferably the legal officer where one is
available, to provide counseling services under the guidance of the
Counselor; a single officer may serve all agencies. An employee or
special Government employee serving abroad should submit inquiries to
the officer designated.
(c) Each agency shall periodically notify its employees and special
Government employees of the availability of counseling services and how
and when these services are available. A new employee or special
Government employee shall be notified at the time of entrance on duty.
22 CFR 10.735-104 Applicability to detailed employees.
All the regulations of subparts A, B, and D of this part are
applicable to an employee of another U.S. Government agency who may be
serving on detail or assignment, formally or informally, on a
reimbursable or nonreimbursable basis through a Participating Agency
Service Agreement or otherwise, with an agency named in 10.735-102(a).
However, disciplinary action shall be taken against such an employee
only by the employing agency.
22 CFR 10.735-105 Disciplinary action.
A violation of the regulations in this part by an employee or special
Government employee may be cause for appropriate disciplinary action,
including separation for cause, which may be in addition to any penalty
prescribed by law.
22 CFR 10.735-105 Subpart B -- Ethical and Other Conduct and Responsibilities of Employees
22 CFR 10.735-201 General.
(a) Proscribed actions. An employee shall avoid any action, whether
or not specifically prohibited by the regulations in this part, which
might result in, or create the appearance of:
(1) Using public office for private gain;
(2) Giving preferential treatment to any person;
(3) Impeding Government efficiency or economy;
(4) Losing independence or impartiality;
(5) Making a Government decision outside official channels; or
(6) Affecting adversely the confidence of the public in the integrity
of the Government.
(b) Applicability to members of families of employees. A U.S.
citizen employee shall take care that certain responsibilities placed on
the employee are also observed by members of the employee's family.
These are the restrictions in regard to: Acceptance of gifts (
10.735-202 and 10.735-203); economic and financial activities abroad (
10.735-206); teaching, lecturing, and writing ( 10.735-204(c));
participation in activities of private organizations ( 10.735-211(c));
and political activities abroad ( 10.735-211(g)).
22 CFR 10.735-202 Gifts, entertainment, and favors.
(a) Acceptance prohibited. Except as provided in paragraphs (b),
(c), and (d) of this section, an employee shall not solicit or accept,
directly or indirectly, any gift, gratuity, favor, entertainment, loan,
or any other thing of monetary value, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with the employee's agency;
(2) Conducts operations or activities that are regulated by the
employee's agency;
(3) Has interests that may be substantially affected by the
performance or nonperformance of the employee's official duty; or
(4) Appears to be offering the gift with the hope or expectation of
obtaining advantage or preferment in dealing with the U.S. Government
for any purpose.
(b) Acceptance permitted. The provisions of paragraph (a) of this
section do not apply to:
(1) Gifts, gratuities, favors, entertainments, loans, or any other
thing of monetary value received on account of close family or personal
relationships when the circumstances make it clear that it is that
relationship rather than the business of the persons concerned which is
the motivating factor;
(2) Acceptance of loans from banks or other financial institutions on
customary terms to finance proper and usual activities of employees,
such as home mortgage loans;
(3) Acceptance of unsolicited advertising or promotional material,
such as pens, pencils, note pads, calendars, and other items of nominal
intrinsic value;
(4) Acceptance of rates and discounts offered to employees as a
class.
(c) Acceptance permitted for State and ICA employees. For State and
ICA employees the provisions of paragraph (a) of this section do not
apply to: 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.
(d) Acceptance permitted for AID employees. For AID employees the
provisions of paragraph (a) of this section do not apply in the
following situations:
(1) Acceptance of food, refreshments, or entertainment of nominal
value on infrequent occasions offered in the ordinary course of
luncheons, dinners, or other meetings and gatherings hosted by foreign
governments or agencies and officials thereof, embassies, and
international organizations, where the primary purpose of the function
is representational or social, rather than the transaction of business.
Where the primary purpose of the function is the transaction of
business, acceptance is not permitted, except if there is justification
and reporting in accordance with paragraph (d)(4) of this section.
(2) Participation in widely attended lunches, dinners, and similar
gatherings sponsored by industrial, technical, and professional
associations for the discussion of matters of mutual interest to
Government and industry.
(3) Acceptance of food, refreshments, or entertainment in the unusual
situation where the employee, by virtue of the location of the person,
firm, corporation, or other entity, or the regulations governing its
dining facilities, finds it inconvenient or impracticable not to accept
the offer. Each case of acceptance shall be reported in accordance with
the requirement of paragraph (d)(4) of this section. In no other case
shall employees accept food, refreshments, or entertainment from private
corporations, entities, firms, or individual contractors at occasions
which are other than widely attended functions whose purposes are
unrelated to Agency business.
(4) In exceptional circumstances where acceptance of food,
refreshments, or entertainment is not authorized by paragraphs (d) (1),
(2), and (3) of this section, but where, in the judgment of the
individual concerned, the Government's interest would be served by such
acceptance directly or indirectly from any foreign government, agency,
or official thereof or a private person, firm, corporation, or other
entity which is engaged or is endeavoring to engage in business
transactions of any sort with AID, an employee may accept the offer:
Provided, That a report of the circumstances, together with the
employee's statement as to how the Government's interests were served,
will be made within 48 hours to the employee's supervisor, or, if the
employee is serving abroad, or on temporary duty abroad, to the Mission
Director.
(e) Gifts to superiors. An employee shall 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 the employee (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.
(f) Neither this section nor 10.735-204 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 the employee's 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.
22 CFR 10.735-203 Gifts from foreign governments.
An employee shall not accept a gift, present, decoration, or other
thing from a foreign government unless authorized by Congress as
provided by the Constitution and in 5 U.S.C. 7342, and the regulations
promulgated thereunder pursuant to E.O. 11320, 31 FR 15789. These
regulations are set forth in Part 3 of this title (as added, 32 FR 6569,
Apr. 28, 1967), and in 3 FAM 621.
22 CFR 10.735-204 Outside employment and other activity.
(a) An employee shall not engage in outside employment or other
outside activity not compatible with the full and proper discharge of
the duties and responsibilities of Government employment. Incompatible
activities include but are not limited to:
(1) 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, conflicts of interest; or
(2) Outside employment which tends to impair the employee's mental or
physical capacity to perform Government duties and responsibilities in
an acceptable manner.
(b) An employee shall not receive any salary or anything of monetary
value from a private source as compensation for the employee's services
to the Government (18 U.S.C. 209).
(c) Employees are encouraged to engage in teaching, lecturing, and
writing that is not prohibited by law, the Executive order, this part,
or the agency regulations. However, 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
Civil Service Commission or Board of Examiners for the Foreign Service,
that is dependent on information obtained as a result of Government
employment, except when that information has been made available to the
general public or will be made available on request or when the agency
head gives written authorization for use of nonpublic information on the
basis that the use is in the public interest. In addition, an employee
who is a Presidential appointee covered by section 401(a) of the
Executive order shall not 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 employee's agency, or
which draws substantially on official data or ideas which have not
become part of the body of public information. Employees are referred
to the detailed rules of their agency with respect to clearance and
acceptance of compensation (3 FAM 628; for AID see Handbook 18).
(d) (Reserved)
(e) An employee shall not render any services, whether or not
compensated, to any foreign government, state, province, or
semigovernmental agency, or municipality of any foreign government, or
to any international organization of states. However, this shall not
prevent the rendering of such services by employees acting on behalf of
the United States. Nor shall this provision prevent the rendering of
services to an international organization of states when otherwise
consistent with law and when authorized by the appropriate officer. The
appropriate officer for State is the Director General and Director of
Personnel; for AID the Assistant Administrator for Program and
Management Services; and for ICA the Director of Personnel Services.
(f) (Reserved)
(g) This section does not preclude an employee from:
(1) Participation in the activities of national or State political
parties not proscribed by law.
(2) 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.
22 CFR 10.735-205 Financial interests.
(a) An employee shall not: (1) Have a direct or indirect financial
interest that conflicts substantially, or appears to conflict
substantially with the employee's 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
Government employment.
(b) This section does not preclude an employee from having a
financial interest or engaging in financial transactions to the same
extent as a private citizen not employed by the Government so long as it
is not prohibited by law or the regulations in this part.
(c) Pursuant to the provision of 18 U.S.C. 208(b) the following
described financial interests of an employee are hereby exempted from
the requirements of 18 U.S.C. 208(a) and 208(b)(1) as being too remote
or too inconsequential to affect the integrity of the services of an
employee. The exemption applies to the financial interests held
directly by an employee, by the employee's spouse or minor child whether
individually or jointly with the employee, or by an employee and any
partner or partners as joint assets of the partnership:
(1) Investments in State and local government bonds; and stocks,
bonds, or policies in a mutual fund, investment company, bank or
insurance company, provided that in the case of a mutual fund,
investment company, or bank, the fair value of such stock or bond
holding does not exceed one percent of the value of the reported assets
of the mutual fund, investment company, or bank. In the case of a
mutual fund or investment company, this exemption applies only where the
assets of the fund or company are diversified; it does not apply where
the fund or company specializes in a particular industry or commodity.
(2) Interest in an investment club or other group organized for the
purpose of investing in equity or debt securities: Provided, That the
fair value of the interest involved does not exceed $10,000 and that the
interest does not exceed one-fourth of the total assets of the
investment club or group. Where an employee covered by this exemption
is a member of a group organized for the purpose of investing in equity
or debt securities, the interest of the employee in any enterprise in
which the group holds securities shall be based upon the employee's
equity share of the holdings of the group in that enterprise.
(3) If an employee, or the employee's spouse or minor child has a
present beneficial interest or a vested remainder interest under a
trust, the ownership of stocks, bonds, or other corporate securities
under the trust will be exempt to the same extent as provided in
paragraphs (c)(1) and (2) of this section for the direct ownership of
such securities. The ownership of bonds other than corporate bonds, or
of shares in a mutual fund or regulated investment company, under the
trust will be equally exempt and to the same extent as under paragraphs
(c) (1) and (2) of this section.
(4) If an employee is an officer, director, trustee, or employee of
an educational institution, or if the employee is negotiating for, or
has an arrangement concerning prospective employment with such an
institution, a direct financial interest which the institution has in
any matter will not itself be exempt, but any financial interest that
the institution may have in the matter through its holdings of
securities issued by business entities will be exempt: Provided, The
employee is not serving as a member of the investment committee of the
institution or is not otherwise advising it on its investment portfolio.
(5) An employee may continue to participate in a bona fide pension,
retirement, group life, health or accident insurance plan, or other
employee welfare or benefit plan that is maintained by a business or
nonprofit organization by which the employee was formerly employed.
Such financial interest in that organization will be exempt, except to
the extent that the welfare or benefit plan is a profit-sharing or
stock-bonus plan and the employee's financial interest thereunder
exceeds $10,000. This exemption extends also to any financial interests
that the organization may have in other business activities.
(d) Nothing in this part shall be deemed to prohibit an employee from
acting, with or without compensation, as agent or attorney for the
employee's parents, spouse, child, or any person for whom, or for any
estate for which, the employee is serving as guardian, executor,
administrator, trustee, or other personal fiduciary, except in those
matters in which the employee has participated personally and
substantially as a Government employee, through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or
otherwise, or which are the subject of the employee's official
responsibility, as defined in 18 U.S.C. 202(b): Provided, The head of
the employee's division approves in writing.
22 CFR 10.735-206 Economic and financial activities of employees
abroad.
(a) Prohibitions in any foreign country. A U.S. citizen employee
abroad is specifically prohibited from engaging in the activities listed
below in any foreign country.
(1) Speculation in currency exchange.
(2) Transactions at exchange rates differing from local legally
available rates, unless such transactions are duly authorized in advance
by the agency.
(3) Sales to unauthorized persons (whether at cost or for profit) of
currency acquired at preferential rates through diplomatic or other
restricted arrangements.
(4) Transactions which entail the use, without official sanction, of
the diplomatic pouch.
(5) Transfers of funds on behalf of blocked nationals, or otherwise
in violation of U.S. foreign funds and assets control.
(6) Independent and unsanctioned private transactions which involve
an employee as an individual in violation of applicable control
regulations of foreign governments.
(7) Acting as a intermediary in the transfer of private funds from
persons in one country to persons in another country, including the
United States.
(8) Permitting use of one's official title in any private business
transactions or in advertisements for business purposes.
(b) Prohibitions in country of assignment. (1) A U.S. citizen
employee shall not transact or be interested in any business or engage
for profit in any profession or undertake other gainful employment in
any country or countries to which the employee is assigned or detailed
in the employee's own name or through the agency of any other person;
exceptions may be made with respect to chiefs of mission only in writing
by the Deputy Under Secretary for Management and for all other State
employees by the appropriate chief of mission; for AID employees by the
assistant administrator of the regional bureau or head of the
nonregional organization, as appropriate; and for ICA employees by the
Director of Personnel Services, or their designees (see 22 U.S.C. 805).
(2) A U.S. citizen employee shall not invest in real estate or
mortgages on properties located in the employee's country of assignment.
The purchase of a house and land for personal occupancy is not
considered a violation of this paragraph.
(3) A U.S. citizen employee shall not invest money in bonds, shares
or stocks of commercial concerns headquartered in the country of
assignment or conducting a substantial portion of their business in such
country. Such investments, if made prior to knowledge of assignment or
detail to such country or countries, may be retained during such
assignment or detail when approved in writing by the appropriate
official named in paragraph (b)(1) of this section. If retention is
authorized, such stocks, shares, or bonds may not be sold while the
employee is assigned or detailed to the country or countries, unless the
agency approved the sale in writing.
(4) A U.S. citizen employee shall not sell or dispose of personal
property, including automobiles, at prices producing profits to the
employee which result primarily from import privileges derived from the
employee's official status as an employee of the U.S. Government.
Employees of State and ICA are referred to Foreign Affairs Manual
Circular 378; for AID see Handbook 23, Attachment 1B.
(c) Acceptance of employment by members of family abroad. Family
members of Foreign Service personnel may accept gainful employment in a
foreign country unless such employment (1) would violate any law of such
country or of the U.S.; or (2) could damage the interests of the U.S.,
as certified in writing to the family member by the Chief of the U.S.
Diplomatic Mission in such country. A copy of such certification will
be sent to the Family Liaison Office (M/FLO), Department of State.
Family members accepting employment abroad should bear in mind that they
may not enjoy immunity from judicial process and would be subject to the
payment to taxes derived from their nondiplomatic employment.
(d) Business activities of non-U.S. citizen employees. A non-U.S
citizen employee abroad may engage in outside business activities with
the prior approval of the head of the overseas establishment on the
basis of the standards expressed in 10.735-204(a).
22 CFR 10.735-207 Use of Government property.
An employee shall not directly or indirectly use, or allow the use of
Government property of any kind, including property leased to the
Government, for other than officially approved activities. An employee
has a positive duty to protect and conserve Government property,
including equipment, supplies, and other property entrusted or issued to
the employee.
22 CFR 10.735-208 Misuse of information.
For the purpose of furthering a private interest, an employee shall
not, except as provided in 10.735-204(c) directly or indirectly use, or
allow the use of, official information obtained through or in connection
with Government employment which has not been made available to the
general public.
22 CFR 10.735-209 Indebtedness.
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 the purpose of this section, a ''just financial
obligation'' means one acknowledged by the employee or reduced to
judgement by a court or one imposed by law such as Federal, State, or
local taxes, and ''in a proper and timely manner'' means in a manner
which the agency determines does not, under the circumstances, reflect
adversely on the Government as the employer. In the event of dispute
between an employee and an alleged creditor, this section does not
require an agency to determine the validity or amount of the disputed
debt.
22 CFR 10.735-210 Gambling, betting, and lot- teries.
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 and similar
agency-approved activities.
22 CFR 10.735-211 Activities relating to private organizations and
politics.
(a) Definition. For the purpose of this section, the term ''private
organization'' denotes any group of persons or associations organized
for any purpose whatever, except an organization established by the
Government of the United States, or officially participated in by State,
AID, or ICA.
(b) Participation in activities of employee organizations. An
employee may join or refrain from joining employee organizations or
associations without interference, coercion, restraint, or fear of
discrimination or reprisal.
(c) Participation in activities of private organizations. In
participating in the program and activities of any private organization,
an employee shall make clear that the employee's agency has no official
connection with such organization and does not necessarily sponsor or
sanction the viewpoints which it may express.
(d) Legal restrictions on membership in certain organizations. An
employee shall not have membership in any organization that advocates
the overthrow of our constitutional form of Government in the United
States, knowing that such organization so advocates (5 U.S.C. 7311, 18
U.S.C. 1918).
(e) Private organizations concerned with foreign policy or other
matters of concern to agencies. (1) Limitation on participation. When
a private organization is concerned primarily with foreign policy or
international relations or other matters of concern to an employee's
agency, an employee shall limit connection therewith as follows: Unless
specifically permitted to do so, the employee may not serve as advisor,
officer, director, teacher, sponsor, committee chairman, or in any other
official capacity or permit the employee's name to be used on a
letterhead, in a publication, in an announcement or news story, or at a
public meeting, regardless of whether the employee's official title or
connection is mentioned. The provisions of this section are not
intended to prohibit the normal and active participation of an employee
in professional organizations such as the American Political Science
Association, the American Economic Association, the American Foreign
Service Association, and similar organizations, since such participation
is in the interest of both the employee and the Government. Employees
are expected, however, to exercise discretion in such activities and are
held personally accountable for any improper use of their relationship
with State, AID, and ICA.
(2) Request for special permission. Special permission to assume or
continue a connection prohibited by paragraph (e)(1) of this section may
be granted in cases where the public interest will not be adversely
affected. To request such permission, or to determine whether the
provisions are applicable to a particular case, the employee shall
address a memorandum setting forth all of the circumstances to the
appropriate officer. The appropriate officer is for State, the Director
General and Director of Personnel; for AID, the Senior Personnel
Officer under whose jurisdiction the employee serves; and for ICA, the
Director of Personnel Services.
(3) Application to senior officers. Because of the prominence
resulting from their official positions, chiefs of mission and other
senior officers should recognize the particular bearing of the
provisions of paragraph (e)(1) of this section upon their activities.
They should restrict association with any organizations involving
foreign nations and the United States to simple membership and should
not accept even honorary office in such organizations except with the
specific prior approval as provided in paragraph (e)(2) of this section.
(f) Private organizations not concerned with foreign policy. When
the purpose and program of the organization do not fall primarily within
the field of foreign policy or international relations, the employee's
activity is limited only to the following extent:
(1) The employee's official title or connection may be used to
identify the employee, as in a civic association election, but may not
be used on a letterhead, in a publication, or otherwise so as to employ
the prestige of the U.S. Government to enhance that of the organization
or to imply official sponsorship.
(2) When the employee is a representative of an association
consisting of State, AID, or ICA employees, or of a group of such
employees, the employee's connection with the agency may be freely used
so long as there is no implication of official sponsorship beyond that
which may have been officially approved.
(g) Political activities abroad. A U.S. citizen employee shall not
engage in any form of political activity in any foreign country.
(h) Activities relating to U.S. politics. The law (5 U.S.C. 7324,
formerly the Hatch Act) provides in summary that it is unlawful for any
Federal employee of the executive branch to use the employee's official
authority or influence for the purpose of interfering with an election
or affecting the result thereof, or to take any active part in political
management or in political campaigns. These restrictions do not in any
way affect the right of a Federal employee (1) to vote as the employee
chooses; (2) to express personal political opinions, except as part of
a campaign; (3) to make or refrain from making contributions to
political organizations, provided contributions are not made in a
Federal building or to another Federal officer or employee (see 18
U.S.C. 602, 603, 607, and 608); (4) to participate in local,
nonpartisan activities.
22 CFR 10.735-212 Wearing of uniforms.
(a) An employee of the Foreign Service may not wear any uniform
except as may be authorized by law or as a military commander may
require civilians to wear in a theater of military operations (22 U.S.C.
803). When an employee is authorized by law or required by a military
commander of the United States to wear a uniform, care shall be taken
that the uniform is worn only at authorized times and for authorized
purposes.
(b) Conventional attire worn by chauffeurs, elevator operators, and
other miscellaneous employees are not considered uniforms within the
meaning of this section except that, for ICA, MOA VII 917.2b prohibits
the purchase from Agency funds of uniforms or any item of personal
wearing apparel other than special protective clothing.
22 CFR 10.735-213 Recommendations for employment.
(a) Making recommendations in official capacity. In general, an
employee shall not, in the employee's official capacity, make any
recommendations in connection with the employment of persons unless the
position concerned are with the Government of the United States and the
recommendations are made in response to an inquiry from a Government
official authorized to employ persons or to investigate applicants for
employment. A principal officer in answer to a letter of inquiry from
outside the U.S. Government concerning a former employee assigned to the
post, may state the length of time the person was employed at the post
and the fact that the former employee performed duties in a satisfactory
manner, if such is the case. Also, an AID Mission Director may provide
names of persons or firms from which a cooperating government may select
an employee or firm to be used in some phase of the AID program.
(b) Making personal recommendations. An employee may make a personal
recommendation in connection with the employment of any person,
including present or former employees, their spouses and/or members of
their families, except for employment in a position of trust or profit
under the government of the country to which the employee is accredited
or assigned (22 U.S.C. 806(b)): Provided, That the employee does not
divulge any information concerning the person derived from official
sources. When a letter of introduction or recommendation is written by
an employee, precautionary measures should be taken to prevent its being
construed as official correspondence and used by an unscrupulous
individual to impress American or foreign officials. Accordingly,
official stationery should not be used for this purpose. The letter
may, however, show the recommending employee's status as an employee of
the U. S. Government. Every personal letter of recommendation shall
contain a statement clearly indicating that the letter constitutes a
personal recommendation and is not to be construed as an official
recommendation by the Government of the United States.
22 CFR 10.735-214 Transmitting communications and gifts.
(a) Correspondence. In corresponding with anyone other than the
proper official of the United States with regard to the public affairs
of a foreign government, an employee shall use discretion and judgment
to ensure that neither the United States nor the employee will be
embarrassed or placed in a compromising position (22 U.S.C. 806(a)).
(b) Communications. An employee shall not act as an agent for the
transmission of communications from private persons or organizations in
foreign countries to the President or to Federal, State, or municipal
officials in the United States. A chief of mission may, however, accept
communications of this nature and forward them to the Department of
State for such further action as may be appropriate, whenever the chief
of mission determines it to be clearly in the public interest to do so.
(c) Gifts. An employee shall not act as an agent for the
transmission of gifts from persons or organizations in foreign countries
to the President or to Federal, State, or municipal officials of the
United States. However, principal officers may, according to
regulations prescribed by the President, accept, and forward to the
Office of Protocol of the Department of State, gifts made to the United
States or to any political subdivision thereof by the Government to
which they are accredited or from which they hold exequaturs. Employees
shall not, without the approval of the Secretary of State, transmit
gifts from persons or organizations in the United States to heads or
other officials of foreign states.
22 CFR 10.735-215 General conduct prejudicial to the Government.
(a) An employee shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government.
(b) An employee abroad is also obligated to obey the laws of the
country in which the employee is present.
(c) An employee shall observe the requirements of courtesy,
consideration, and promptness in dealing with or serving the public.
22 CFR 10.735-216 Miscellaneous statutory provisions.
Each employee shall become acquainted with each statute that relates
to the employee's ethical and other conduct as an agency employee of and
of the Government.
(a) The attention of employees is directed to the following statutory
provisions:
(1) House Concurrent Resolution 175, 85th Congress, 2d session, 72
Stat. B12, the ''Code of Ethics for Government Service.''
(2) Chapter 11 of Title 18, United States Code, relating to bribery,
graft, and conflicts of interest, as appropriate to the employees
concerned.
(3) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(4) The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918).1
(5) The prohibitions against (i) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 783); and (ii) the disclosure of
confidential information (18 U.S.C. 1905).
(6) The provision relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
(7) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)).
(8) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(9) The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
(10) The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001).
(11) The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071).
(12) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508).
(13) The prohibition against (i) embezzlement of Government money or
property (18 U.S.C. 641); (ii) failing to account for public money (18
U.S.C. 643); and (iii) embezzlement of the money or property of another
person in the possession of an employee by reason of the employee's
employment (18 U.S.C. 654).
(14) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285).
(15) The prohibition against political activities in Subchapter III
of Chapter 73 of Title 5, United States Code and 18 U.S.C. 602, 603,
607, and 608.
(16) 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).
(17) The prohibition against discrimination because of politics,
race, religion, or color (22 U.S.C. 807).
(18) The prohibition against officers or employees accepting any
honorarium in excess of $2,000 or honoraria aggregating more than
$25,000 in any calendar year (sec. 112, Pub. L. 94-283, 90 Stat. 494 (2
U.S.C. 441i)).
(b) The attention of consular officers is directed to the following
statutory provisions:
(1) The provisions relating to the duty to account for fees received
(22 U.S.C. 9, 812, 1194), liability for exaction of excessive fees (22
U.S.C. 1182, 1189), and liability for failure to collect proper fees (22
U.S.C. 1190).
(2) The provisions relating to liability for failure to give bond and
for embezzlement (22 U.S.C. 1179), liability for embezzlement of fees or
effects of American citizens (22 U.S.C. 1198), and liability for falsely
certifying as to the ownership of property (22 U.S.C. 1200).
(3) The prohibition against profiting from dealings with discharged
seamen (22 U.S.C. 1187).
(4) The provision relating to liability for failure to collect the
wages of discharged seamen (46 U.S.C. 683).
1The Courts have stricken from the Code any prohibition against
assertion of the right to strike on the basis that such an assertion is
a protected right under the First Amendment to the Constitution.
22 CFR 10.735-217 Requesting exceptions from certain statutory
prohibitions.
(a) Any employee desiring a written advance determination that the
prohibitions of 18 U.S.C. 208(a) do not apply will prepare a written
request addressed to an appropriate agency official. For purposes of
this section, the appropriate agency official is: The Deputy Under
Secretary for Management for State, the Administrator for AID, and the
Director for ICA. The request will describe the particular matter
giving rise to the conflict of interest, the nature and extent of the
employee's anticipated participation in the particular matter, and the
exact nature and amount of the financial interest related to the
particular matter.
(b) The employee will forward the request to the appropriate agency
official through the immediate supervisor and the assistant agency head
in charge of the organizational agency component to which the employee
is assigned, or will be assigned in the case of a new employee. The
assistant agency head will forward the written request to the
appropriate agency official through the agency's Counselor. The
Counselor shall attach a written opinion to the request, prepare a
recommended written determination in final form for signature by the
appropriate agency official, and shall forward all documents to that
official.
(c) The determination of the appropriate agency official will be sent
to the employee by the Counselor. If the appropriate agency official
grants the requested exception, the original written advance
determination will be sent to the employee. A duplicate original shall
be retained among the appropriate agency records under the control of
the Counselor.
22 CFR 10.735-217 Subpart C -- Ethical and Other Conduct and Responsibilities of Special Government Employees
22 CFR 10.735-301 Conflicts of interest.
Special Government employees are subject to the conflicts of interest
statutes (18 U.S.C. 202). An explanation of these conflicts of interest
statutes their effects upon special Government employees and guidelines
for obtaining and utilizing the services of special Government employees
are in Appendix C of Chapter 735 of the Federal Personnel Manual. A
special Government employee shall not have a direct or indirect
financial interest that conflicts substantially, or appears to conflict
substantially, with Government duties and responsibilities.
22 CFR 10.735-302 Use of Government employment.
A special Government employee shall not use Government employment for
a purpose that is, or gives the appearance of being, motivated by the
desire for private gain for the employee or another person, particularly
one with whom the employee has family, business, or financial ties.
22 CFR 10.735-303 Use of inside information.
(a) A special Government employee shall not use inside information
obtained as a result of Government employment for private gain for the
employee or another person either by direct action on the employee's
part or by counsel, recommendation, or suggestion to another person,
particularly one with whom the employee has family, business, or
financial ties. For the purpose of this section, ''inside information''
means information obtained under Government authority which has not
become part of the body of public information.
(b) A special Government employee may engage in teaching, lecturing,
or writing that is not prohibited by law, Executive Order 11222 or the
restrictions in this part; however, a special Government employee shall
not, either for or without compensation, engage in teaching, lecturing,
or writing that is dependent 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, or when the
head of the agency gives written authoritzation for the use of nonpublic
information on the basis that the use is in the public interest. A
special Government employee who wishes to request the agency head to
authorize the use of nonpublic information should submit such request
through the Counselor. The request should contain complete information
concerning the nonpublic information which the employee wishes to
disclose and should contain in addition an indication of the intended
use of such information and how disclosure of it would be in the public
interest.
22 CFR 10.735-304 Coercion.
A special Government employee shall not use Government employment to
coerce, or give the appearance of coercing, a person to provide
financial benefit to the employee or another person, particularly one
with whom the employee has family, business, or financial ties.
22 CFR 10.735-305 Gifts, entertainment, and favors.
(a) Except as provided in paragraph (b) of this section, a special
Government employee, while so employed or in connection with Government
employment, shall not receive or solicit from a person having business
with the employee's agency anything of value as a gift, gratuity, loan,
entertainment, or favor for the employee or another person, particularly
one with whom the employee has family, business or financial ties.
(b) The exceptions to the prohibition against the acceptance of gifts
which have been granted to employees in 10.735-202 (b), (c), and (d)
are also applicable to special Government employees.
(c) A special Government employee shall not accept a gift, present,
decoration, or other thing from a foreign government unless authorized
by Congress as provided by the Constitution and in 5 U.S.C. 7342, and
the regulations promulgated thereunder pursuant to E.O. 11320; 31 FR
15789. These regulations are set forth in part 3 of this title (as
added, 32 FR 6569, April 28, 1967), and in 3 FAM 621.
(d) A special Government employee shall avoid any action, whether or
not specifically prohibited by these sections on special Government
employees, which might result in, or create the appearance of:
(1) Using public office for private gain;
(2) Giving preferential treatment to any person;
(3) Impeding Government efficiency or economy;
(4) Losing independence or impartiality;
(5) Making a Government decision outside official channels; or
(6) Affecting adversely the confidence of the public in the integrity
of the Government.
22 CFR 10.735-306 Miscellaneous statutory provisions.
Each special Government employee shall become acquainted with each
statute that relates to the employee's ethical and other conduct as a
special Government employee of an agency and of the Government. The
attention of special Government employees is directed to the statutes
listed in 10.735-216.
22 CFR 10.735-306 Subpart D -- Statements of Employment and Financial Interests
22 CFR 10.735-401 Employees required to submit statements.
The following employees of State, AID, and ICA shall submit
statements of employment and financial interests:
(a) All special Government employees including experts or consultants
serving on a full-time or intermittent basis, except when waived under
10.735-402(c).
(b) Employees paid at a level of the Executive Schedule in Subchapter
II of Chapter 53 of Title 5, United States Code, except as provided in
10.735-402(b).
(c) Except as provided in 10.735-402, employees classified at GS-13,
FSO-4, FSR-5, FSS-2, AD-13, FC-5, or above, who are in positions hereby
identified either as positions the basic duties of which impose upon the
incumbent the responsibility for a Government decision or taking 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;
(4) Other activities where the decision or action has an economic
impact on the interests of any non-Federal enterprise, or as positions
which have duties and responsibilities which require the incumbent to
report employment and financial interests in order to avoid involvement
in a possible conflict of interest situation and carry out the purpose
of law, Executive order, and the agency's regulations:
Director General of the Foreign Service and the Director of
Personnel; Director of the Policy Planning Staff; Inspector General;
Director, FSI; Special Assistant to Secretary; Deputy Secretary, Under
Secretaries, or Deputy Under Secretary; Deputy Assistant Secretary and
others at this level or above; Assistant Legal Adviser for Management;
Director, Office of Operations; Office Director; Country Director;
Division Chief in Bureau of Economic and Business Affairs, in the Office
of Operations, (O/OPR), or in the Office of Foreign Buildings;
Executive Director; Deputy Chief of Mission; Principal Officer;
Economic Counselor; Commercial Counselor; Administrative Counselor;
Civil Air Attache; Petroleum Officer; Minerals Officer; Contracting
Specialist; Procurement Specialist; Despatch Agent; Traffic Manager;
and Traffic Management Specialist.
Deputy Director, Associate Directors, Directors and Deputy Directors
of Offices or Services, Executive or Special Assistants to the Director;
Chief Inspector; Associate Chief Inspector; Commissioner General,
Deputy Commissioner General, Staff Director (Advisory Commission),
Director of Engineering and Technical Operations; Director of
Audio-Visual Procurement and Production; Country Public Affairs
Officer, Deputy Country Public Affairs Officer, Public Affairs
Counselor, Deputy Public Affairs Counselor, Director or Manager of
Regional Service Center, Radio Relay Station, Radio Program Center or
Radio Relay Station Construction Site, Administrative Officer or
Executive Officer at a post abroad, Administrative Officer, Executive
Officer and Business Manager (occupational codes 301, 340, 341, and
1101, or FAS code 200); Contracting Specialist and Procurement
Specialist (occupational code 1102, or FAS codes 210 and 211); Auditor
and Accountant (occupational code 510, or FAS code 207); General
Counsel, Deputy General Counsel, or Attorney (occupational code 905, or
FAS code 512).
(1) AID/W: Deputy Assistant Administrators, Associate Assistant
Administrators, Deputy Associate Assistant Administrators; Heads and
Deputy Heads of Offices, Staffs, and Divisions; Desk Officers and
Deputy Desk Officers.
(2) Overseas: Mission Directors, Deputy Directors, Assistant
Directors, AID Representatives, Aid Affairs Officers, Chairman,
Development Assistance Committee; U.S. Representative to Development
Assistance Committee; Development Coordination Officer.
(3) Any person serving as chief of an operational branch responsible
for housing, loans, guarantees, or other commercial type transactions
with the public.
(4) In addition, employees in AID/W or overseas whose positions fall
within the following series or position titles (occupational code given
in parenthesis): Economist Series (0110); International Cooperation
Series (0136); Auditor General (0301.21); Supervisory Housing
Development Officer (0301.31); Chief, Housing and Urban Development
(0301.35); Contract Compliance Specialist (0301.48); Director for
Regional Activities (0340.08); Development Officer (0340.09); Regional
Development Officer (0340.10); Executive Officer (0341.01); Deputy
Executive Officer (0341.02); Regional Executive Officer (0341.03);
Administrative Officer (0341.05); Executive Officer -- Administrative
Support (0341.15); Executive Officer, Operations (0341.16); Executive
Officer, Real Property (0341.18); Executive Officer, Personnel
(0341.19); General Services Officer (0342.01); Assistant General
Services Officer (0342.03); Assistant General Services Officer,
Property and Supply (0342.20); Assistant General Services Officer,
Procurement (0342.23); Assistant General Services Officer, Housing
(0342.25); Program Officer (0345.01); Deputy Program Officer
(0345.02); Food and Agriculture Officer (0401.01); Deputy Food and
Agriculture Officer (0401.02); Budget and Accounting Series (0504);
Financial Management Series (0505); Accounting Series (0510); Budget
Administration Series (0560); General Attorney Series (0905); General
Business and Industry Series (1101); Contract and Procurement Series
(1102); Property Disposal Series (1104); Purchasing Series (1105);
Trade Specialist Series (1140); Private Resources Development Series
(1150); Financial Analysis Series (1160); General Investigating Series
(1810); Criminal Investigating Series (1811); Import Specialist Series
(1889); General Supply Series (2001); Supply Program Management Series
(2003).
22 CFR 10.735-402 Employees not required to submit statements.
(a) Employees in positions that meet the criteria in paragraph (c) of
10.735-401 may be excluded from the reporting requirement when the
agency head or designee determines that:
(1) The duties of the position are such that the likelihood of the
incumbent's involvement in a conflict-of-interest situation is remote;
(2) The duties of the 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
incumbent or the inconsequential effect on the integrity of the
Government.
(b) A statement of employment and financial interests is not required
by the regulations in this part from an agency head, or 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.
(c) Special Government employees not required to submit statements.
An agency head may waive the requirement of this section for the
submission of a statement of employment and financial interest in the
case of a special Government employee who is not a consultant or an
expert when the agency finds that the duties of the position held by
that special Government employee are of 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. For the
purpose of this paragraph, ''consultant'' and ''expert'' have the
meanings given those terms by Chapter 304 of the Federal Personnel
Manual, but do not include a physician, dentist, or allied medical
specialist whose services are procured to provide care and service to
patients.
22 CFR 10.735-403 Employee's complaint on filing requirement.
Each employee shall have the opportunity for review through agency
grievance procedure of the employee's complaint that the employee's
position has been improperly included within 10.735-401 as one
requiring the submission of a statement of employment and financial
interests. Employees are reminded that they may obtain counseling
pursuant to 10.735-103 prior to filing a complaint.
22 CFR 10.735-404 Time and place of submission, and forms.
(a) An employee or special Government employee shall submit a
statement to the Counselor (in the case of a State employee, through the
employee's Bureau) no later than:
(1) Ninety days after the effective date of this part if the employee
has entered on duty on or before that effective date; or
(2) At least 10 days prior to entrance on duty, if the employee
enters on duty after that effective date; except that an employee or
special Government employee who enters on duty within 90 days of the
effective date of this part may submit such statement within 90 days
after entrance on duty.
(b) Only the original of the statement or supplement thereto required
by this part shall be submitted. The individual submitting a statement
should retain a copy for the individual's own records.
22 CFR 10.735-405 Information required.
(a) Employees. Employees' statement of employment and financial
interests required by the regulations in this part shall be submitted on
the form, ''Confidential Statement of Employment and Financial Interests
(for use by Government Employees)'', Form OF-106, and shall contain all
the information therein required.
(b) Special Government employees. All special Government employees
shall submit statements of employment and financial interest on the
form, ''Confidential Statement of Employment and Financial Interests
(for use by Special Government Employees)'', Form OF-107 for State and
ICA, Form AID 4-450 for AID, and shall contain all the information
therein required.
(c) Interests of employee's relatives. The interest of a member of
an employee's family is considered to be an interest of the employee.
The term ''member of an employee's family'' is defined in
10.735-102(f).
(d) 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 the employee's
behalf.
(e) Interests not required to be reported. An employee need not
disclose those financial interests described in 10.735-205(c) as being
too remote or too inconsequential to affect the integrity of employees'
services.
(f) Information not required. The regulations in this part do 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 or 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.
22 CFR 10.735-406 Submission of position description.
Each Statement of Employment and Financial Interests or annual
supplement thereto must be accompanied by a full description of the
employee's principal governmental duties. The description should be
particularly detailed in regard to those duties which might possibly be
an element in a conflict of interest. If the statement indicates that
the employee has no outside employment or financial interests, the
employee need not submit a description of duties. For a special
Government employee, the employing office shall submit the description.
22 CFR 10.735-407 Supplementary statements.
(a) Employees, as defined in paragraphs (b) and (c) of 10.735-401,
shall report changes in, or additions to, the information contained in
their statements of employment and financial interests in supplementary
statements as of June 30 each year. If no changes or additions occur, a
negative report is required.
(b) All special Government employees, as defined in paragraph (a) of
10.735-401, shall submit a current statement at the time their
appointments are extended. A supplementary report indicating any
changes in, or additions to the information already submitted will be
accepted in lieu of a full submission. If there are no changes or
additions, a negative report is required. For AID, no action to extend
an appointment will be taken unless such supplementary report is
submitted not later than 10 days prior to the expiration of said
appointment.
(c) Notwithstanding the filing of reports 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 B of this part.
(d) An employee is also to keep current the employee's description of
principal duties as to changes or additions which might possibly be an
element in a conflict of interest. The employing office shall submit
descriptions of changes in the principal duties of a special Government
employee as they occur.
22 CFR 10.735.408 Review of statements and determination as to
conflicts of interest.
(a) On the basis of the Statement of Employment and Financial
Interests submitted by each employee or special Government employee, or
on the basis of information received from other sources, the Counselor
shall determine, in the light of the duties which that employee or
special Government employee is or will be performing, whether any
conflicts of interest, real or apparent, are indicated. The Counselor
shall make this determination based on the applicable statutes, the
Executive order, and the applicable regulations of the Civil Service
Commission, and of the agency.
(b) Where the Counselor's determination in a particular case is that
a conflict of interest, real or apparent, is indicated, the Counselor
shall initiate informal discussions with the employee or special
Government employee concerned. These discussions shall have as their
objectives:
(1) Providing the individual with a full opportunity to explain the
conflict or appearance of conflict; and
(2) Arriving at an agreement (acceptable to the Counselor, the
individual and the individual's immediate superior) whereby the conflict
of interest may be removed or avoided. Such an agreement may include,
but is not limited to: (i) Changes in assigned duties; (ii)
divestiture of the financial or employment interest creating the
conflict or apparent conflict; or (iii) disqualification for a
particular assignment.
(c) Where an acceptable agreement cannot be obtained pursuant to
paragraph (b) of this section, the Counselor shall present findings and
recommendations to the officer designated by the agency head, who shall
decide which remedy is most appropriate to remove or correct that
conflict or apparent conflict. Remedial action under this paragraph may
include disciplinary action, including separation for cause, or any of
the actions enumerated in paragraph (b)(2) of this section and shall be
effective in accordance with applicable laws, Executive orders, and
regulations.
(d) Written summaries of all agreements and decisions arrived at
pursuant to paragraph (b) or (c) of this section shall be placed in the
Counselor's files. Copies shall also be made available to the employee
or special Government employee concerned.
22 CFR 10.735-409 Confidentiality of employees' statements.
An agency shall hold each statement of employment and financial
interests, and each supplementary statement, in confidence. To insure
this confidentiality only the Counselor and Deputy Counselors are
authorized to review and retain the statements. The Counselor and
Deputy Counselors are responsible for maintaining the statements in
confidence and shall not allow access to, or allow information to be
disclosed from, a statement except to carry out the purpose of this
part. An agency may not disclose information from a statement except as
the Civil Service Commission or the agency head may determine for good
cause shown.
22 CFR 10.735-410 Effect of employees' statements on other
requirements.
The statements of employment and financial interests and
supplementary statements required for employees are in addition to, and
not in substitution for, or in derogation of, any similar requirement
imposed by law, order, or regulation. The submission of a statement or
supplementary statement by an employee does not permit the employee or
any other person to participate in a matter in which the employee or the
other person's participation is prohibited by law, order, or regulation.
Save with respect to those financial interests excepted from the
conflict of interest prohibitions of 18 U.S.C. 208(a) pursuant to a
written advance determination under 10.735-217 or exempted by the
provisions of 10.735-205(c), an employee must disqualify himself or
herself from participating in any matter in which the employee has a
financial interest.
22 CFR 10.735-411 Disqualification procedures.
(a) Where an employee is prohibited from participating in a matter
because of a conflicting financial interest that is not exempt under
10.735-205(c) or has not been specifically excepted by the appropriate
agency official pursuant to 10.735-217 in advance of the employee's
participation in the particular matter, the employee shall conduct
himself or herself in accordance with the following provisions:
(1) The employee shall promptly disclose the financial interest in
such matter to the employee's immediate superior. The superior will
thereupon relieve the employee of duty and responsibility in the matter.
(2) In foreign posts, it may be impossible or highly impracticable
for an employee, who has a disqualifying financial interest, to assign
the matter for official action to anyone other than a subordinate. In
this event, the employee must instruct the subordinate to report fully
and directly to the immediate superior to whom the employee himself or
herself would normally report. The employee must concurrently direct
such subordinate to take such action as may be appropriate in the
matter, and without thereafter revealing to the disqualified employee in
any way any aspect of the particular matter.
(b) Nothing herein precludes the employee from disposing of such
disqualifying financial interest, thereby wholly eliminating the
conflict of interest. In some circumstances, where the employee may not
obtain an exception under 10.735-217, or may not disqualify himself or
herself and refer or assign the matter to another employee, the
performance of duty may even require divestiture.
(c) Where a supervisor has reason to believe that a subordinate
employee may have a conflicting financial interest, the supervisor
should discuss the matter with the employee. If the supervisor finds
that a conflict of interest does exist, the supervisor must relieve the
subordinate employee of duty and responsibility in the particular
matter.
(d) The obligation to avoid conflicts of interest is upon each
employee. It is a continuing obligation calling for alert vigilance.
(e) Notwithstanding any other provision of this part to the contrary,
if a employee's holdings rise in value above the amount exempted by
10.735-205(c), then the statutory and regulation prohibitions apply in a
conflict of interest situation.
22 CFR 10.735-411 PART 11 -- APPOINTMENT OF FOREIGN SERVICE OFFICERS
Sec.
11.1 Junior Foreign Service officer career candidate appointments.
11.2 Written examination for appointment to class 7 or 8.
11.3 Oral examination for appointment to class 7 or 8.
11.4 Medical examination for appointment to class 7 or 8.
11.5 Certification for appointment to class 7 or 8.
11.6 Final review panel.
11.7 Termination of eligibility.
11.8 Travel expenses of candidates.
11.10 Mid-level Foreign Service officer career candidate
appointments. (Reserved)
11.11 Mid-level Foreign Service Officer career candidate
appointments.
11.20 Foreign Service specialist career candidate appointments.
11.30 Senior Foreign Service officer career candidate and limited
non-career appointments.
Authority: Secs. 212, 302, 303, 516, 517, 60 Stat. 1001, as
amended, 1002, 1008, as amended; 22 U.S.C. 827, 842, 843, 911.
22 CFR 11.1 Junior Foreign Service officer career candidate
appointments.
(a) General considerations -- (1) Authority. Pursuant to sections
302 and 306 of the Foreign Service Act of 1980 (hereinafter referred to
as the Act), all Foreign Service officers shall be appointed by the
President, by and with the advice and consent of the Senate. All
appointments shall be made to a class and not to a particular post. No
person shall be eligible for appointment as a Foreign Service officer
unless that person is a citizen of the United States. Such appointment
is initially to career candidate status with subsequent commissioning to
career status governed by the provisions of Volume 3 (Personnel),
Foreign Affairs Manual, section 570. In accordance with section 102(b)
of the Act, all references in these regulations to Foreign Service
officers shall, with respect to the United States Information Agency, be
deemed to refer to Foreign Service information officers.
(2) Veterans' preference. Pursuant to section 301 of the Act, and
notwithstanding the provisions of section 3320 of title 5 of the United
States Code, the fact that an applicant is a veteran or disabled
veteran, as defined in section 2108 (3A), (3B), or (3C) of such title,
shall be considered as an affirmative factor in the selection of
candidates for appointment as Foreign Service officer career candidates.
(3) Policy. Appointment as a Junior Foreign Service officer Career
Candidate of class 6, 5, or 4, is governed by these regulations.
Successful applicants will be appointed as Career Candidates for a
period not to exceed 5 years. Under precepts of the Commissioning and
Tenure Board, Career Candidates may be granted tenure and converted to
career Foreign Service officer status. Those who are not granted tenure
prior to the expiration of their Career Candidate appointments will be
separated from the Career Candidate program no later than the expiration
date of their appointments. Separated candidates who originally were
employees of a department or agency will be entitled to reemployment
rights in their former department or agency in accordance with section
310 of the Act.
(b) Written examination. The following regulations apply to the
written examination.
(1) Purpose. The written examination is designed to enable the Board
of Examiners for the Foreign Service to test the applicant's
intelligence, breadth and quality of knowledge, and understanding in
relation to the requirements of Foreign Service work.
(2) Eligibility. Prior to each written examination, the Board of
Examiners will establish a closing date for the receipt of applications
for designation to take the examination. No person will be designated
to take the examination who has not, as of that closing date, filed an
application with the Board. To be designated to take the written
examination, an applicant, as of the date of the examination, must be a
citizen of the United States and at least 20 years of age.
(3) When and where given. The written examination will be given
periodically, normally at least once a year, in designated cities in the
United States and at Foreign Service posts, on dates established by the
Board of Examiners and publicly announced.
(4) Grading. The several parts of the written examination will be
weighted and graded according to standards established by the Board of
Examiners. The number of candidates who pass each written examination
will be governed by the projected hiring needs of the participating
foreign affairs departments and agencies in subsequent years.
(c) Oral examination. The following regulations apply to the oral
examination.
(1) Purpose. The oral examination is designed to enable the Board of
Examiners for the Foreign Service to test the candidate's competence to
perform the work of a Foreign Service officer at home and abroad,
potential for growth in the Foreign Service, and suitability to serve as
a representative of the United States abroad. The oral examination for
the Junior Career Candidate Program will consist of an assessment
procedure publicly announced by the Board of Examiners and hereinafter
referred to as the oral examination.
(2) Eligibility -- (i) Through written examination. (A) Candidates
whose weighted score on the written examination is at or above the
passing level set by the Board of Examiners will be eligible for
selection to take the oral examination. All eligible candidates
normally will be invited to take the oral examination.
(B) Should the total number of eligible candidates substantially
exceed the projected hiring needs of the Foreign Service, the Board of
Examiners may establish and publicly announce a higher written
examination score than the passing level as the basis for selection to
take the oral examination.
(C) The Board of Examiners may authorize special consideration to be
given in the selection of candidates, from among those eligible, for the
purpose of meeting language requirements, Affirmative Action goals, or
for other purposes which the Board with the concurrence of the
prospective hiring agencies may from time to time approve and publicly
announce.
(D) The nature and applicability of all criteria utilized to select
eligible candidates to take the oral examination will be developed by
the Board of Examiners in consultation with the prospective hiring
agencies and publicly announced in advance of each examination by the
Board.
(E) Candidates who are selected to take the oral examination will be
notified of the period of time after the date of the written
examination, as determined by the Board of Examiners, within which the
oral examination must be conducted. That period will normally be 1
year, but it may be extended or shortened in special circumstances by
the Board. The candidacy of anyone whose candidacy has not been
extended by the Board, and who has not again passed the written
examination in the meantime, will be terminated 2 years after the end of
the month in which the written examination was held. Time spent outside
the United States and its territories, for reasons acceptable to the
Board of Examiners, will not be counted against this 2-year period. The
candidacy of anyone for whom the 2-year period is extended by the Board
because of being abroad will be terminated automatically if the
candidate fails to appear for the oral examination within 3 months after
first returning to the United States. If a candidate fails to appear
for the oral examination on an agreed date within the period of
eligibility without an excuse acceptable to the Board, the candidacy
will automatically terminate.
(ii) Through affirmative action. Members of the minority groups
specified by the Equal Opportunity Act of 1972, as amended, may be
selected by the Board of Examiners for admission to the oral examination
in accordance with the Affirmative Action Programs of the participating
departments and agencies. Such candidates must be at least 21 years of
age, citizens of the United States, and holders of at least a bachelor's
degree from an accredited college or university. Affirmative Action
Program applicants will be evaluated on a highly competitive basis, in
accordance with criteria established by the Board in conjunction with
the participating departments and agencies and publicly announced, to
determine those to be selected for the oral examination.
(iii) Through the mustang program. (A) Employees of the Department
of State in classes FS-9 through FS-4 and grades GS-1 through GS-12 who
are at least 21 years of age and who have at least 3 years of service
with the Department may be selected by the Board of Examiners for
admission to the oral examination for the Junior Career Candidate
Program in accordance with the Mustang Program of the Department. Such
Mustang candidates must: (1) Complete successfully an appropriate
Foreign Service Institute-sponsored or approved university or
correspondence course relevant to officer-level responsibility in the
chosen Foreign Service field of specialization; (2) submit an
autobiography of approximately 1000 words; and (3) be recommended by a
Qualifications Evaluation Panel of the Board of Examiners for selection
for the oral examination.
(B) Employees of the Department of State in classes FS-3 and GS-13
and above are eligible for the Mid-Level Career Candidate Program and
should apply under that program if they wish to be considered for
conversion to Foreign Service officer status (see 11.10).
(iv) Through the upward mobility program. Admission to the oral
examination through the Upward Mobility Program of the United States
Information Agency is governed by procedures established by that agency.
(3) When and where given. The oral examination cycle will be held
each year in Washington, D.C., and in selected cities in the United
States. If circumstances permit, oral examinations may also be held at
selected Foreign Service posts when approved by the Board of Examiners.
(4) Examining panel. The oral examination will be given by a panel
of deputy examiners approved by the Board of Examiners from a roster of
Foreign Service officers; Foreign Service information officers; career
officers from the Department of State, the United States Information
Agency, and the Department of Commerce; and qualified private citizens
who, by prior service as members of departmental or agency Foreign
Service selection boards or other appropriate activities, have
demonstrated special qualifications to serve as deputy examiners.
Service as a deputy examiner shall be limited to a maximum of 5 years,
unless a further period is specifically authorized by the Board.
Examination panels shall be chaired by a career officer of the Foreign
Service. Determinations of duly constituted panels of deputy examiners
are final unless modified by specific action of the Board of Examiners.
(5) Grading. Candidates taking the oral examination will be graded
numerically according to standards established and publicly announced by
the Board of Examiners. The candidacy of anyone whose score is at or
above the passing level set by the Board will be continued. The
candidacy of anyone whose score is below the passing level will be
terminated and may not be considered again until the candidate has
passed a new written examination. An Affirmative Action, Mustang, or
Upward Mobility candidate who fails the oral examination may not be
considered again until 1 year after that date.
(d) Background investigation. Candidates who pass the oral
examination will be eligible for selection by the Board for the
background investigation. The background investigation shall be
conducted to determine the candidate's suitability for appointment to
the Foreign Service. Should the total number of eligible candidates
substantially exceed the anticipated needs of the Foreign Service, the
Board of Examiners may authorize priorities to be established, on the
basis of combined written and oral examination scores and Affirmative
Action considerations, for scheduling the background investigation.
(e) Medical examination -- (1) Eligibility. Candidates who pass the
oral examination, and their dependents, will be eligible for selection
by the Board of Examiners for the medical examination.
(2) Purpose. The medical examination shall be conducted to determine
the candidate's physical fitness to perform the duties of a Foreign
Service officer on a worldwide basis and, for candidates and dependents,
to determine the presence of any physical, neurological, or mental
condition of such a nature as to make it unlikely that they would be
able to function on a worldwide basis.
(3) Conduct. The medical examination may be conducted by medical
officers of the Department of State, the Armed Forces, the Public Health
Service, accredited colleges and universities, or by private physicians.
(4) Determination. The Medical Director of the Department of State
will determine, on the basis of the report of the physician(s) who
conducted the medical examination, whether the candidate and the
candidate's dependents have met the required medical standards for
appointment (see section 680, Volume 3, Foreign Affairs Manual).
(5) Medical disqualification. (i) An Employment Review Committee
established by the Department of State, when authorized by the
candidate, will review the case of any Department of State Foreign
Service candidate or dependent who has been denied medical clearance for
appointment, and determine by majority vote whether or not the candidate
should be appointed despite the medical disqualification. Decisions of
the Employment Review Committee are final and are not subject to further
appeal by the candidate.
(ii) The United States Information Agency (USIA) maintains a similar
review procedure for USIA Foreign Service candidates and dependents who
are disqualified medically. Affected candidates may apply to the
Director of the Office of Personnel (M/P) of USIA for review of their
cases.
(f) Final review panel. After the results of the medical examination
and background investigation are received, the candidate's entire file
will be reviewed and graded by a Final Review Panel, consisting of two
or more deputy examiners of the Board of Examiners. Candidates who have
completed the examination process; have passed their medical
examination, or have obtained Employment Review Committee approval or
the equivalent in accordance with the procedures of the other
participating agencies; and, on the basis of their background
investigation, have been found suitable to represent the United States
abroad, will have their names placed on the functional rank-order
register(s), or a special register, for the agency or agencies for which
they have been found qualified. Thereafter, they will be considered for
employment based on the needs of the individual foreign affairs
agencies. The candidacy of any candidate who is determined by the Final
Review Panel to be unqualified for appointment shall be terminated and
the candidate so informed.
(g) Certification for appointment -- (1) Eligibility. (i) A
candidate will not be certified as eligible for appointment as a Foreign
Service Officer Career Candidate of class FS-6 unless that candidate is
at least 21 years of age and a citizen of the United States.
(ii) Career Candidate appointments shall be made before the
candidate's 60th birthday. Appointments by the United States
Information Agency shall be made before the candidate's 58th birthday.
The maximum age for appointment under this program is based on the
requirement that all career candidates shall be able to: (A) Complete
at least two full tours of duty, exclusive of orientation and training,
(B) complete the requisite eligibility period for tenure consideration,
and (C) complete the requisite eligiblity period to receive retirement
benefits, prior to reaching the mandatory retirement age of 65
prescribed by the Act.
(iii) A candidate may be certified as eligible for direct appointment
to classes FS-5 or FS-4 if the Board of Examiners determines in
accordance with published criteria that, in addition to meeting the
requirements for class FS-6, the candidate has additional special
experience and skills for which there is a need in the Foreign Service.
(iv) Recommended candidates who meet the requirements of this section
will be certified for appointment by the Board, in accordance with the
needs of the foreign affairs agencies, in the order of their standing on
their respective registers.
(2) Functional rank-order registers. The Board of Examiners may
maintain separate rank-order registers for Career Candidates in
administrative, consular, economic, and political functions of the
Department of State; for Career Candidates in the information/cultural
function of the United States Information Agency; for Career Candidates
in the foreign commercial function of the Department of Commerce; and
for functions of other participating foreign affairs agencies.
Appointments from each functional register will be made in rank order
according to the needs of the relevant agency.
(3) Special programs. (i) Qualified minority candidates who apply
and qualify under the Department of State Affirmative Action Junior
Officer Program (AAJOP) may be placed on a separate register and offered
appointment from that register to meet Affirmative Action hiring goals
established by the Secretary.
(ii) Qualified minority candidates who apply and qualify under the
Comprehensive Minority Recruitment and Training Program (COMRAT) of the
United States Information Agency may be placed on a separate register
and offered appointment from that register in accordance with the
Affirmative Action Program established by that agency.
(iii) Mustang and Upward Mobility candidates who are career employees
of the Department of State or the United States Information Agency will
be certified by the Board of Examiners for direct appointment on an
individual basis after satisfactorily completing all aspects of the
examination process.
(4) Postponement of entrance on duty. Postponement of entrance on
duty because of civilian Federal Government service abroad (to a maximum
of 2 years of such service), including Peace Corps volunteer service, or
required active regular or reserve military service (to a maximum of the
limit of such required service), may be authorized by the Board.
(5) Foreign language requirement. A candidate may be certified for
appointment to classes FS-6, FS-5, or FS-4 without first having passed
an examination in a foreign language, but the appointment will be
subject to the condition that the newly appointed Career Candidate may
not be converted to career Foreign Service officer status unless, within
a specified period of time, adequate proficiency in a foreign language
is achieved. For limitations on promotion, see section 874, Volume 3,
Foreign Affairs Manual.
(h) Termination of eligibility -- (1) Time limit. Candidates who
have qualified but have not been appointed because of lack of openings
will be removed from the rank-order register 18 months after the date of
placement on the rank-order register. Time spent in civilian Federal
Government service abroad (to a maximum of 2 years of such service),
including Peace Corps volunteer service, or in required active regular
or reserve military service (to a maximum of the limit of such required
service), will not be counted as part of the 18-month eligibility
period.
(2) Extension. The Board of Examiners may extend the eligibility
period when such extension is, in its judgment, justified in the
interest of the Foreign Service.
(i) Travel expenses. The travel and other personal expenses of
candidates incurred in connection with the written and oral examinations
will not be borne by the Government. However, the participating foreign
affairs departments and agencies may issue round-trip invitational
travel orders to bring candidates to Washington, D.C., at Government
expense, when it is determined by the agencies that this is necessary in
the interest of the Foreign Service.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a)
and 301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
(48 FR 13162, Mar. 30, 1983)
22 CFR 11.2 Written examination for appointment to class 7 or 8.
The Board of Examiners for the Foreign Service has established the
following rules regarding the written examination:
(a) When and where given. The written examination will be given
annually or semiannually, if required, in designated cities in the
United States and at Foreign Service posts on dates established by the
Board of Examiners for the Foreign Service. Applicants must indicate in
their applications whether they are applying for the Department of State
or for the U.S. Information Agency. Candidates who pass the written
examination successfully may request a transfer of their applications to
the other agency.
(b) Designation to take written examination. No person will be
permitted to take a written examination for appointment as a Foreign
Service officer or Foreign Service information officer who has not been
specifically designated by the Board of Examiners to take that
particular examination. Prior to each written examination, the Board
will establish a closing date for the receipt of applications for
designation to take the examination. No person will be designated for
the examination who has not, as of that closing date, filed an
application with the Board. To be designated for the written
examination, a candidate, as of the date of the examination, must be a
citizen of the United States and shall be at least 21 years of age,
except that an applicant who has been awarded a bachelor's degree by a
college or university, or has successfully completed the junior year at
a college or university, may qualify if at least 20 years of age.
(c) Content. The written examination is designed to permit the Board
to test the candidate's intelligence, breadth and quality of knowledge,
and understanding. It will consist of three parts: (1) A general
ability test, (2) an English expression test, and (3) a general
background test.
(d) Grading. The several parts of the written examination are
weighted in accordance with the rules established by the Board of
Examiners.
(22 U.S.C. 1221 et seq.)
(37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24,
1973)
22 CFR 11.3 Oral examination for appointment to class 7 or 8.
The Board of Examiners for the Foreign Service has established the
following rules regarding the oral examination:
(a) When and where given. The oral examination will be given
throughout the year at Washington and periodically in selected cities in
the United States and, if circumstances permit, at selected Foreign
Service posts.
(b) Eligibility. If a candidate's weighted average on the written
examination is 70 or higher, the candidate will be eligible to take the
oral examination. Candidates eligible for the oral examination will be
given an opportunity and will be required to take the oral examination
within 9 months after the date of the written examination. If a
candidate fails to appear for the oral examination on an agreed date
within the 9-month period, the candidacy will automatically terminate,
except that time spent outside the United States and its territories,
for reasons acceptable to the Board of Examiners, will not be counted
against the 9-month period. The candidacy of anyone for whom the
9-month period is extended because of being abroad will be automatically
terminated if the candidate fails to appear for the oral examination
within 3 months after first returning to the United States: Provided,
That the candidacy of anyone who has not returned and been examined in
the meantime will be canceled 2 years after the end of the month in
which the written examination was held.
(c) Examining process. (1) The oral examination will be given by a
panel of deputy examiners approved by the Board of Examiners from a
roster of Foreign Service officers, officers from the Department of
State, and other Government agencies, and qualified private citizens who
by prior service as members of selection boards or through other
appropriate activities have demonstrated special qualifications for this
work. Service as deputy examiners shall be limited to a maximum of 5
years, unless a further period is specifically authorized by the Board.
(2) The examination will be conducted in the light of all available
information concerning the candidate and will be designed to determine
the candidate's: (i) Competence to perform the work of a Foreign
Service officer at home and abroad; (ii) potential for growth in the
Service; and (iii) suitability to serve as a representative of the
United States abroad. Panels examining candidates for the Department of
State will be chaired by a Foreign Service officer of the Department.
Panels examining candidates for the U.S. Information Agency will be
chaired by a Foreign Service officer of that Agency. Determinations of
duly constituted panels of deputy examiners are final, unless modified
by specific action of the Board of Examiners for the Foreign Service.
(3) Grading: Candidates appearing for the oral examination will be
graded ''recommended'' or ''not recommended.'' If recommended, the panel
will assign a grade which will be advisory to the Final Review Panel in
determining the candidate's standing on the rank-order register of
eligibles. The candidacy of anyone who is graded ''not recommended'' is
automatically terminated and may not be considered again until the
candidate has passed a new written examination.
(4) An investigation shall be conducted of candidates who have been
graded ''recommended'' by the oral examining panel to determine loyalty
to the Government of the United States and attachment to the principles
of the Constitution.
(22 U.S.C. 1221 et seq.)
(37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24,
1973)
22 CFR 11.4 Medical examination for appointment to class 7 or 8.
The Board of Examiners for the Foreign Service has established the
following rules regarding the medical examination of candidates.
(a) A candidate graded ''recommended'' on the oral examination will
be eligible for the physical examination.
(b) The medical examination is designed to determine the candidate's
physical fitness to perform the duties of a Foreign Service officer on a
worldwide basis and to determine the presence of any physical, nervous,
or mental disease or defect of such a nature as to make it unlikely that
the candidate would become a satisfactory officer. The Executive
Director of the Board of Examiners for the Foreign Service, with the
concurrence of the Deputy Assistant Secretary for Medical Services, may
make such exceptions to these physical requirements as are in the
interest of the Service. All such exceptions shall be reported to the
Board of Examiners for the Foreign Service at its next meeting.
(c) The medical examination will be conducted by medical officers of
the Armed Forces, the Public Health Service, the Department, accredited
colleges and universities, or, with the approval of the Board of
Examiners, by private physicians.
(d) The Deputy Assistant Secretary for Medical Services will
determine, on the basis of the report of the physician(s) who conducted
the medical examination, whether the candidate has met the standards set
forth in paragraph (b) of this section.
(22 U.S.C. 1221 et seq.)
(37 FR 19356, Sept. 20, 1972)
22 CFR 11.5 Certification for appointment to class 7 or 8.
(a) Candidates will not be certified as eligible for appointment as
Foreign Service officers of class 8 unless they are at least 21 years of
age, is a citizen of the United States, and, if married, married to a
citizen of the United States. A candidate may be certified as eligible
for direct appointment to class 7 if, in addition to meeting these
specifications, the candidate also has additional qualifications of
experience, education, and age which the Board of Examiners for the
Foreign Service currently defines as demonstrating ability and special
skills for which there is a need in the Foreign Service. Recommended
candidates who meet these requirements will be certified for
appointment, in accordance with the needs of the Service, in the order
of their standing on their respective registers.
(b) Separate registers for Department of State candidates will be
maintained for the administrative, consular, commercial/economic, and
political functional specialties. Successful candidates for the U.S.
Information Agency will have their names placed on a separate rank-order
register and appointments will be made according to the needs of the
Agency. Postponement of entrance on duty for required active military
service, or required alternative service, civilian Government service
abroad (to a maximum of 2 years of such civilian service), or Peace
Corps volunteer service, will be authorized. A candidate may be
certified for appointment to class 7 or 8 without first having passed an
examination in a foreign language, but the appointment will be subject
to the condition that the newly appointed officer may not receive more
than one promotion unless, within a specified period of time, adequate
proficiency in a foreign language is achieved.
(22 U.S.C. 1221 et seq.)
(37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24,
1973)
22 CFR 11.6 Final review panel.
After the results of the medical examination and background
investigation are received, the candidate's entire file will be reviewed
by a Final Review Panel, consisting of two or more deputy examiners.
Candidates who have been graded ''recommended'' by oral examining
panels, who have passed their medical examination, and who, on the basis
of investigation have been found to be loyal to the Government of the
United States and personally suitable to represent it abroad, will have
their names placed on a rank-order register for the functional specialty
for which they have been qualified. Their standing on the register will
be determined by the Final Review Panel after taking into account the
grade assigned by the oral examining panel and any information developed
subsequent to the oral examination concerning the applicant. The
candidacy of anyone who is determined by the Final Review Panel to be
unqualified for appointment shall be terminated and the candidate so
informed.
(22 U.S.C. 1221 et seq.)
(37 FR 19356, Sept. 20, 1972)
22 CFR 11.7 Termination of eligibility.
(a) Candidates who have qualified but have not been appointed because
of lack of vacancies will be dropped from the rank-order register 30
months after the date of the written examination: Provided, however,
That reasonable time spent in civilian Government service abroad (to a
maximum of 2 years such service), including service as a Peace Corps
volunteer, in required active military service, or in required
alternative service, subsequent to establishing eligibility for
appointment will not be counted in the 30-month period.
(b) The Chairman of the Board of Examiners may extend the eligibility
period when such extension is, in his judgment, justified in the
interests of the Service. The Chairman shall report the approved
extensions to the Board of Examiners.
(22 U.S.C. 1221 et seq.)
(37 FR 19356, Sept. 20, 1972)
22 CFR 11.8 Travel expenses of candidates.
The travel and other personal expenses of candidates incurred in
connection with the written and oral examinations will not be borne by
the Government, except that the Department may issue round-trip
invitational travel orders to bring candidates to Washington at
Government expense when it is determined that it is necessary in
ascertaining a candidate's qualifications and adaptability for
appointment.
(22 U.S.C. 1221 et seq.)
(37 FR 19356, Sept. 20, 1972)
11.10 Mid-level Foreign Service officer career candidate
appointments. (Reserved)
22 CFR 11.11 Mid-level Foreign Service Officer career candidate
appointments.
(a) General considerations -- (1) Authority. Pursuant to sections
302 and 306 of the Foreign Service Act of 1980 (hereinafter referred to
as the Act), all Foreign Service officers shall be appointed by the
President, by and with the advice and consent of the Senate. All
appointments shall be made to a class and not to a particular post. No
person shall be eligible for appointment as a Foreign Service officer
unless that person is a citizen of the United States. Such appointment
is initially to career candidate status, with subsequent commissioning
to career status governed by Volume 3 (Personnel), Foreign Affairs
Manual section 570.
(2) Veterans' preference. Pursuant to section 301 of the Act, and
notwithstanding the provisions of section 3320 of title 5 of the United
States Code, the fact that an applicant is a veteran or disabled
veteran, as defined in section 2108(3A), (3B), and (3C) of such title,
shall be considered as an affirmative factor in the selection of
candidates for appointment as Foreign Service officer career candidates
(22 U.S.C. 1234).
(3) Purpose and policy. The Mid-Level Career Candidate Program of
the Department of State supplements the Junior Foreign Service Officer
Career Candidate Program to meet total requirements for Foreign Service
officers at the mid-level. The purposes of the Mid-Level Program are:
(i) To provide expanded opportunities and upward mobility for
outstanding members of the Foreign Service with high potential who have
been serving with particular success in other occupational categories;
(ii) to permit the recruitment of a limited number of highly skilled and
qualified personnel from outside the Foreign Service to meet specific
needs which cannot be met from within the career Service; and (iii) to
assist in meeting the Affirmative Action goals of the Department of
State. This section governs appointments to generalist occupational
categories (that is, administrative, consular, economic and political)
at classes FS-3, 2, or 1. All appointments above FS-1, regardless of
occupational category, are govern by 11.30 (to be supplied).
Appointments to Specialist occupational categories below the Senior
Foreign Service are governed by 11.20. Successful applicants under the
Mid-Level Program will be appointed to career candidate status for a
period not to exceed 5 years. Under precepts of the Commissioning and
Tenure Board, career candidates may be granted tenure and converted to
career Foreign Service officer status. Those who are not granted tenure
prior to the expiration of their career candidate appointments will be
separated from the Career Candidate Program no later than the expiration
date of their appointments. As provided in section 310 of the Act, such
separated candidates who had originally been employed by the Department
of State with the consent of the head of their agency shall be entitled
to reemployment rights in their former agency under section 3597 of
title 5, United States Code.
(4) Sources of candidates -- (i) Department. The great majority of
mid-level entrants will be career employees of the Department of State
and the Foreign Service of proven ability who possess high potential for
advancement. On the basis of the needs of the Foreign Service, the
Department will approve the mid-level appointment of Foreign Service and
Civil Service personnel on its rolls who apply, for whom the Bureau of
Personnel issues a certificate of need, and who are found qualified by
the Board of Examiners for the Foreign Service.
(ii) Other Federal Government agencies. Personnel with similar
qualifications from other Federal Government agencies may also apply for
the Mid-Level Program based on agreements between the Department and
those agencies.
(iii) Other. Other candidates may be drawn from non-Government
sources, including minority and women applicants for the Department's
Mid-Level Affirmative Action Program.
(b) Eligibility requirements -- (1) Citizenship. Each person
appointed as a Foreign Service Mid-Level Career Candidate must be a
citizen of the United States.
(2) Service. (i) On the date of application, a candidate must have
completed a minimum of 9 years of professional work experience,
including at least 3 years of service in a position of responsibility in
a Federal Government agency or agencies. For this purpose, a position
of responsibility is defined as one in the Foreign Service at class
FS-5, in the Civil Service at GS-9, or in the Armed Forces as first
lieutenant or lieutenant junior grade, or higher. Academic studies,
particularly those related to Foreign Service work, may be substituted
for part of the required experience. The duties and responsibilities of
the position occupied by the candidate must have been similar to or
closely related to that of a Foreign Service officer in terms of
knowledge, skills, abilities, and overseas work experience. In
addition, a candidate must currently be in, or have been in, a grade or
class comparable to FS-4 or higher.
(ii) Candidates from outside the Department who at the time of
application lack 3 years of service in a position of responsibility as
defined in the preceding paragraph may, however, be considered if they
are found to possess a combination of educational background,
employment, experience, and skills needed by the Foreign Service at the
mid-level.
(3) Age. All career candidate appointments shall be made before the
candidate's 60th birthday. The maximum age for appointment under this
program is based on the requirement that all career candidates shall be
able to (i) complete at least two full tours of duty, exclusive of
orientation and training, (ii) complete the requisite eligibility period
for tenure consideration, and (iii) complete the requisite eligibility
period to receive retirement benefits, prior to reaching the mandatory
retirement age of 65 prescribed by the Act.
(4) Certification of need. Before the Board of Examiners may process
a candidacy, the Director General of the Foreign Service must certify
that there is a continuing, long-term requirement, consistent with the
projections of personnel flows and needs mandated by section 601(c)(2)
of the Act, for a combination of professional work experience,
educational background, skills, and capabilities possessed by the
applicant which cannot reasonably be met from within the ranks of the
career service, including by special training of career personnel and/or
limited appointments pending completion of such training, if feasible.
No applicant may be appointed in an occupational category or at a class
level for which the Director General has not certified a need. Such
certifications shall take into full account the latest published skills
resources inventory and shall be based on a written assessment of the
assignment and promotion effects on career members of the Foreign
Service. A separate certification of need is not required for
applicants under the Mid-Level Affirmative Action Program, as the hiring
goals established by the Secretary constitute the certification for
applicants under that Program. The exclusive employee representative
will be advised promptly in writing on request of the number, nature,
and dates of the certifications of need issued since the last request,
including a affirmation that each such issuance has been in accordance
with the requirements of this section.
(c) Recruitment -- (1) From within the Department. It is the
Department's policy to encourage eligible personnel on its rolls to
apply for appointment as Mid-Level Foreign Service officer career
candidates including, in particular, the following categories: (i)
Members of the Foreign Service whose performance has been consistently
of a high caliber, and whose background, experience, and general
qualifications indicate that they can compete favorably with Foreign
Service officers; and (ii) Civil Service personnel who are serving in
positions to which Foreign Service officers are normally assigned, who
have superior records, and whose general qualifications indicate that
they can compete favorably with Foreign Service officers.
(2) Other. The Department also encourages highly qualified
applicants from other agencies of the Federal Government, and from
outside the Federal Government, who meet the statutory and other
eligibility requirements, to apply for the Mid-Level Program.
Appointments from these sources for available openngs are made on a
highly competitive basis to fill specific needs of the Foreign Service
at the Mid-Level.
(d) Methods of application -- (1) Forms. Application is made for a
Mid-Level Foreign Service officer career candidate appointment but not
for a specific class. Applicants for mid-level entry must complete
Standard Form 171, ''Personnel Qualifications Statement,'' and Form
DSP-34, ''Supplement to Application for Federal Employment,'' and
forward them, together with an autobiography not exceeding four
typewritten pages in length, to the Board of Examiners for the Foreign
Service for consideration.
(2) Qualifications evaluation panel. The Board of Examiners
establishes a file for each applicant, placing in it all available
documentation of value in evaluating the applicant's potential for
service as a Foreign Service officer. A Qualifications Evaluation Panel
of deputy examiners of the Board of Examiners reviews the file to
determine whether the applicant meets the statutory and other
eligibility requirements, to assess the applicant's skills relative to
the needs of the Foreign Service, and to recommend whether the applicant
should be examined for possible appointment under the Mid-Level Program.
(e) Examination for mid-level appointment. The submission of an
application to the Board of Examiners does not in itself entitle an
applicant to examination. The decision whether to proceed with an
examination will be made by the Board of Examiners after a thorough
review of the candidate's qualifications and a determination of
eligibility for appointment following receipt of a certification of need
for that candidate.
(1) Purpose. The mid-level examination is designed to enable the
Board of Examiners to determine a candidate's aptitude for the work of
the Foreign Service at the mid-level and fitness for a Foreign Service
career.
(2) Class. In determining the Foreign Service officer class for
which a candidate will be examined, the Board of Examiner's presumption
will be for the class which is equivalent to the candidate's current
salary level. In evaluating qualifications and in conducting
examinations, the Board of Examiners will determine whether the
candidate's qualifications compare favorably with Foreign Service
officers at the candidate's current salary level. However, the Board of
Examiners, at its discretion, may certify a candidate for appointment as
a career candidate at a class other than that equivalent to current
salary level in those instances where the Board determines that the
candidate's qualifications clearly warrant such action.
(3) Written examination. A written examination will not normally be
required of candidates for mid-level appointment. However, if the
volume of applications for a given class or classes, or a particular
functional specialty, is such as to make it infeasible to examine all
candidates orally within a reasonable time, such candidates may be
required to take an appropriate written examination prescribed by the
Board of Examiners. Candidates whose score on the written examination
is at or above the passing level set by the Board of Examiners will be
eligible for selection for the oral examination.
(4) Oral examination -- (i) Purpose. The oral examination will be
designed to enable the Board of Examiners to determine whether
candidates are functionally qualified for work in the Foreign Service at
the mid-level, whether they have the potential to advance in the Foreign
Service, and whether they have the background and experience to make a
contribution to the Foreign Service.
(ii) When and where given. The oral examination is individually
scheduled throughout the year and is normally given in Washington, D.C.
At the discretion of the Board of Examiners, it may be given in other
American cities, or at Foreign Service posts, selected by the Board.
(iii) Examining panel. Candidates recommended by a Qualifications
Evaluation Panel for examination will be given an oral examination by a
panel of deputy examiners of the Board of Examiners. That panels shall
include at least one officer from the functional or professional
specialty for which the candidate is being examined. Examining panels
shall be chaired by a career officer of the Foreign Service.
Determinations of duly constituted panels of deputy examiners are final
unless modified by specific action of the Board of Examiners.
(iv) Content. The Examining Panel will question the candidate
regarding the indicated functional or professional specialty; knowledge
of American history, government, and other features of American culture;
familiarity with current events and international affairs; and other
matters relevant to the candidate's qualifications for appointment.
(v) Grading. Candidates taking the oral examination will be graded
numerically according to standards established by the Board of
Examiners. The candidacy of anyone whose score is at or above the
passing level set by the Board will be continued. The candidacy of
anyone whose score is below the passing level will be terminated and may
not be considered again until 1 year after that date.
(5) Written essay. Candidates who take the oral examination will be
asked to write an essay during the examination day, on a topic related
to Foreign Service work, to enable the Board of Examiners to measure the
candidate's effectiveness of written expression.
(6) Other exercises. Candidates who take the oral examination also
may be asked to complete other exercises during the examination day, to
enable the Board of Examiners to measure additional aspects of
performance related to Foreign Service work at the mid-level.
(7) Background investigation. Candidates who pass the oral
examination will be eligible for selection for the background
investigation. The background investigation shall be conducted to
determine suitability for appointment to the Foreign Service.
(8) Medical examination. Candidates who pass the oral examination,
and their dependents, will be eligible for selection for the medical
examination. The medical examination shall be conducted to determine
the candidate's physical fitness to perform the duties of a Foreign
Service officer on a world-wide basis and, for candidates and
dependents, to determine the presence of any physical, neurological, or
mental condition of such a nature as to make it unlikely that they would
be able to function on a world-wide basis.
(9) Final review panel. The entire file of candidates who pass the
oral examination will be reviewed and graded by a Final Review Panel,
consisting of two or more deputy examiners of the Board of Examiners,
after the results of the background investigation and the medical
examination are received. The Final Review Panel will take into account
the grade assigned by the oral Examining Panel, as well as all other
available information concerning the candidate, and decide whether or
not to recommend the candidate for appointment. The candidate's file
will then be submitted to the Board of Examiners for approval. If
approved by the Board, the candidate's name will be entered on the
rank-order register for the class and functional specialty for which the
candidate has been found qualified. The candidacy of anyone who is not
recommended for appointment by the Final Review Panel shall be
terminated and the candidate so informed.
(10) Foreign language requirement. All candidates who pass the oral
examination will be required to take a subsequent test to measure their
fluency in foreign languages or their aptitude for learning them. A
candidate may be appointed without first having passed an examination in
a foreign language, but the appointment will be subject to the condition
that the newly appointed career candidate may not be converted to career
Foreign Service officer status unless, within a specified period of
time, adequate proficiency in a foreign language is achieved. For
limitations on promotions see Volume 3 (Personnel), Foreign Affairs
Manual, section 874.
(11) Certification for appointment -- (i) Departmental employees. A
candidate who is a career employee of the Department, for whom a
certification of need has been issued, will be certified by the Board of
Examiners for appointment after satisfactorily completing all aspects of
the examination process. The appointment certification will specify the
class and salary for which the candidate has been found qualified.
(ii) Others. Other successful candidates will, after being approved
by the board of Examiners, have their names placed on the rank-order
register for the class and functional specialty for which they have been
found qualified. A separate rank-order register may be established for
candidates under the Mid-Level Affirmative Action Program. Appointments
to available openings will be made from the registers in rank-order
according to the needs of the Foreign Service.
(12) Termination of eligibility. Candidates who have qualified but
have not been appointed because of lack of openings will be removed from
the rank-order register 18 months after the date of placement on the
rank-order register. The Board of Examiners may extend the eligibility
period when such extension is, in its judgment, justified in the
interests of the Foreign Service.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a)
and 301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
(48 FR 19702, May 2, 1983)
22 CFR 11.20 Foreign Service specialist career candidate appointments.
(a) General considerations. (1) Section 303 of the Foreign Service
Act of 1980 (hereinafter referred to as the Act) authorizes the
appointment of members of the Service (other than Presidential
appointments).
(2) Section 306 of the Act provides that, before receiving a career
appointment in the Foreign Service, an individual shall first serve
under a limited appointment for a trial period of service as a career
candidate.
(3) This section governs the appointment by the Department of State
of Foreign Service specialist career candidates to classes FS-1 and
below. Specialist candidates comprise all candidates for career
appointment in all occupational categories other than generalists (that
is, administrative, consular, economic, political, and program
direction), who are governed by the regulations respecting Foreign
Service officer career candidates. The appointment of all Senior
Foreign Service career candidates regardless of occupational category is
governed by 11.30 (to be supplied). Regulations governing trial
service and tenuring of specialist candidates are found in Volume 3
(Personnel), Foreign Affairs Manual, section 580.
(4) Veterans' preference shall apply to the selection and appointment
of Foreign Service specialist career candidates.
(b) Specialist career candidate appointments -- (1) Certification of
need. Candidates for appointment as specialist career candidates must
be world-wide available and must have a professional or a functional
skill for which there is a continuing need in the Foreign Service.
Before an application can be processed, the Director General of the
Foreign Service must certify that there is a need for the applicant as a
career candidate in the specialist category at or above the proposed
class of appointment. No applicant shall be appointed at a class level
for which there is no certified need. This individual certification of
need is not required for those specialist occupations which the Director
General determines in advance to be shortage or continuous recruitment
categories, and for which the Director General has certified the need
for a specific number of appointments at given levels. Such
appointments, including an appointment of an individual who is the
employee of any agency, may not exceed 5 years in duration, and may not
be renewed or extended beyond 5 years. A specialist candidate denied
tenure under Volume 3 (Personnel), Foreign Affairs Manual, section 580,
may not be reappointed as a career candidate in the same occupational
category.
(2) Eligibility. An applicant must be a citizen of the United States
and at least 20 years of age. The minimum age for appointment as a
career candidate is 21. All career candidate appointments shall be made
before the candidate's 60th birthday. The maximum age for appointment
under the program is based on the requirement that all career candidates
shall be able to (i) complete at least two full tours of duty, exclusive
of orientation and training, (ii) complete the requisite eligibility
period for tenure consideration, and (iii) complete the requisite
eligibility period to receive retirement benefits, prior to reaching the
mandatory retirement age of 65 prescribed by the Act.
(3) Selection and initial screening. Specialist career candidates
will be selected on the basis of education, experience, suitability,
performance potential, and physical fitness for world-wide service.
Applicants normally will be given personal interviews and will be
subject to such written, oral, physical, foreign language, and other
examinations as may be prescribed by the Board of Examiners for the
Foreign Service and administered by the Office of Recruitment,
Examination, and Employment (PER/REE). The Board of Examiners will
identify and/or approve the knowledge, skills, abilities, and personal
characteristics required to perform the tasks and duties of Foreign
Service specialists in each functional field. PER/REE will screen
applications for appointment as Foreign Service specialist career
candidates under approved criteria and select those who meet the
requirements for further processing under these regulations.
(4) Oral Examination. Candidates selected through the initial
screening will be eligible for an oral examination unless they are
candidates for appointment in occupational categories for which the oral
examination may be waived by the Director General. This waiver normally
will apply only to continuous-recruitment categories and to appointments
below the FS-6 level, and where such waivers occur, a thorough oral
interview will be conducted. The oral examination will be given by a
panel of deputy examiners, at least one of whom will be a career Foreign
Service specialist proficent in the functional field for which the
candidate is being tested. The examination may include a writing
sample. Candidates taking the oral examination will be graded
numerically according to standards set by the Board of Examiners. The
candidacy of anyone whose score is at or above the passing level set by
the Board will be continued. The candidacy of anyone whose score is
below the passing level will be terminated and may not be considered
again for 1 year.
(5) Background investigation. Candidates who have passed the oral
examination, and candidates who have passed the initial screening if the
oral examination has been waived, will be eligible for selection for the
background investigation to determine their suitability for appointment
to the Foreign Service.
(6) Medical examination. Such candidates and their dependents will
be eligible for selection for the medical examination. The medical
examination shall be conducted to determine the candidate's physical
fitness to perform the duties of a Foreign Service specialist on a
world-wide basis and, for candidates and dependents, to determine the
presence of any physical, neurological, or mental condition of such a
nature as to make it unlikely that they would be able to function on a
world-wide basis.
(7) Final review panel. After the results of the medical examination
and background investigation have been received, a Final Review Panel,
consisting of two or more deputy examiners of the Board of Examiners, or
by another appropriate panel appointed for the purpose by the Director
of PER/REE, will review and grade the candidate's entire file.
Candidates approved by the Final Review Panel will have their names
placed on a rank-order register for the functional specialty for which
they are qualified. Candidates will remain eligible for appointment for
18 months from the date of placement on the rank-order register. The
Board of Examiners may extend this eligibility period when such
extension is, in its judgment, justified in the interests of the Foreign
Service. The candidacy of anyone who is not recommended for appointment
by the Final Review Board shall be terminated and the candidate so
informed.
(c) Limited non-career appointments. Other Foreign Service
specialist appointments may be made on a limited non-career basis.
Before an application for a limited non-career appointment can be
processed, the Director General of the Foreign Service must certify that
there is a need for the applicant. Such limited specialists must serve
overseas, and they will be subject to the same conditions as those
outlined in these regulations for career candidates, with the exception
that the maximum age of 59 does not apply to such appointments.
However, because members of the Foreign Service generally are subject to
the mandatory retirement age of 65 under section 812 of the Act, limited
non-career appointments normally will not extend beyond the appointee's
65th birthday. Applicants for limited non-career appointments will be
subject to the same screening, medical examination, background
investigation, and final review process required of career candidates,
but normally they will not be subject to a written or oral examination.
Their appointments will normally be limited to the duration of the
specific assignment for which they are to be hired, may not exceed 5
years in duration, and may not be renewed or extended beyond 5 years.
Ordinarily, no limited non-career appointee will be reappointed until at
least 1 year has elapsed since the expiration of a previous appointment.
However, earlier reappointment may be granted in cases of special need,
provided the exclusive employee representative is advised in advance and
is afforded an opportunity to comment. Prior to the expiration of their
limited appointments, if otherwise eligible, non-career appointees may
compete for career candidate status by qualifying at that time for and
taking the examinations required of career candidates. If successful,
their names would be entered on the rank-order register for their
functional specialty. If appointed as career candidates, the length of
service under their previous limited non-career appointments may be
counted as part of the trial period of service prescribed before a
candidate can receive a career appointment.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a)
and 301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
(48 FR 19704, May 2, 1983)
22 CFR 11.30 Senior Foreign Service officer career candidate and
limited non-career appointments.
(a) General considerations. (1) Career officers at the Senior Level
normally shall be appointed as the result of promotion of Mid-Level
career officers. Where the needs of the Foreign Service at the Senior
Level cannot otherwise be met by this approach, limited appointments may
by granted to applicants as Senior Career Candidates or as limited
non-career appointees in accordance with these regulations. However, as
required by section 305(b) of the Foreign Service Act of 1980
(hereinafter referred to as the Act), but qualified by section 305(b)(1)
and (2) and section 2403(c) of the Act, the limited appointment of an
individual in the Senior Foreign Service shall not cause the number of
members of the Senior Foreign Service serving under limited appointments
to exceed 5 percent of the total members of the Senior Foreign Service.
(2) Successful applicants under the Senior Career Candidate Program
will be appointed to Career Candidate status for a period not to exceed
5 years. Such limited Career Candidate appointments may not be renewed
or extended beyond 5 years.
(3) Under section 306 of the Act, Senior Career Candidates may be
found qualified to become career members of the Senior Foreign Service.
Those who are not found to be so qualified prior to the expiration of
their limited appointments will be separated from the Career Candidate
Program no later than the expiration date of their appointments.
Separated candidates who originally were employees of a Federal
department or agency, and who were appointed to the Senior Foreign
Service with the consent of the head of that department or agency, will
be entitled to reemployment rights in that department or agency in
accordance with section 310 of the Act and section 3597 of title 5,
United States Code.
(4) The following regulations shall be utilized in conjunction with
section 593, Volume 3, Foreign Affairs Manual (''Senior Foreign Service
Officer Career Candidate Program''). (Also see Foreign Affairs Manual
Circulars No. 8 (applicable to the Department of State only) and No. 9
(applicable to the Departments of State, Agriculture, and Commerce, the
Agency for International Development, and the United States Information
Agency), dated March 6, 1981.)
(b) Senior Career Candidate appointments -- (1) Eligibility
requirements. Senior Career Candidates must meet the following
eligibility requirements:
(i) Citizenship. Each person appointed as a Senior Career Candidate
must be a citizen of the United States.
(ii) Age. All career candidate appointments shall be made before the
candidate's 60th birthday. Appointments by the United States
Information Agency shall be made before the candidate's 58th birthday.
The maximum age for appointment under this program is based on the
requirement that all career candidates shall be able to: (A) Complete
at least two full tours of duty, exclusive of orientation and training;
(B) complete the requisite eligibility period for tenure consideration
and (C) complete the requisite eligibility period to receive retirement
benefits, prior to reaching the mandatory retirement age of 65
prescribed by the Act.
(iii) Service. (A) On the date of application, an applicant must
have completed a minimum of 15 years of professional work experience,
including at least 5 years of service in a position of responsibility in
a Federal Government agency or agencies or elsewhere equivalent to that
of a Mid-Level Foreign Service officer (classes FS-1 through FS-3). The
duties and responsibilities of the position occupied by the applicant
must have been similar to or closely related to that of a Foreign
Service officer in terms of knowledge, skills, abilities, and overseas
work experience. In addition, an applicant must currently be in, or
have been in, a position comparable to a Foreign Service officer of
class 1 (FS-1), or higher.
(B) Applicants from outside the Federal Government, and Federal
employees who at the time of application lack the 15 years of
professional work experience or the 5 years of service in a position of
responsibility as defined in the preceding paragraph, may, however, be
considered if they are found to possess a combination of educational
background, professional work experience, and skills needed by the
Foreign Service at the Senior Level in employment categories which
normally are not staffed by promotion of Mid-Level career officers.
(C) Non-career members of the Senior Foreign Service of a Federal
Government department or agency also may apply for the Senior Career
Candidate Program if they meet the eligibility requirements for the
program.
(iv) Certification of need. Before an application can be processed,
the Director of Personnel of the foreign affairs agency concerned must
certify that there is a need for the applicant as a Senior Career
Candidate based upon (A) the projections of personnel flows and needs
mandated by section 601(c)(2) of the Act, and (B) a finding that the
combination of educational background, professional work experience, and
skills possessed by the applicant is not expected to be available in the
immediate future in sufficient numbers within the Senior Foreign
Service, including by promotion and/or special training of career
personnel. This certification of need will be requested by the Board of
Examiners for the Foreign Service from the appropriate foreign affairs
agency Director of Personnel.
(2) Application. All applicants for the Senior Career Candidate
Program must apply in writing through the prospective employing agency
to the Board of Examiners for consideration. The applicant shall submit
a completed Standard Form 171, ''Personnel Qualifications Statement,''
and Form DSP-34, ''Supplement to Application for Federal Employment,''
to the Board. In addition, the applicant shall submit a narrative
statement, not exceeding four typewritten pages in length, describing
the applicant's pertinent background and professional work experience,
which includes a statement of the applicant's willingness and ability to
accept the obligation of world-wide service. The Board may request
additional written information from the applicant following receipt of
the initial application.
(3) Qualifications evaluation panel. (i) The Board of Examiners will
establish a file for each applicant, placing in it all available
documentation of value in evaluating the applicant's potential for
service as a Senior Career Candidate. For an applicant from within the
Federal Government, this will include the personnel file from the
employing department or agency.
(ii) The complete file will be reviewed by a Qualifications
Evaluation Panel of the Board of Examiners to determine whether the
applicant meets the statutory and other eligibility requirements, to
assess the applicant's skills under the certification of need issued by
the prospective employing agency, and to recommend whether the applicant
should be examined for possible appointment as a Senior Career
Candidate. If the Qualifications Evaluation Panel decides that the
applicant is not eligible for examination, the prospective employing
agency shall be informed by the Board of the reasons for that decision.
(4) Written Examination. The Board of Examiners normally will not
require Senior Career Candidate applicants to undergo a written
examination. However, the Board may, upon securing the agreement of the
prospective employing agency, decide that such applicants should be
required to take an appropriate written examination prescribed by the
Board. If so, an applicant whose score on the written examination is at
or above the passing level set by the Board will be eligible for
selection for the oral examination.
(5) Oral examination -- (i) Examining panel. Applicants recommended
by the Qualifications Evaluation Panel will be given an appropriate oral
examination by a Panel of Senior Foreign Service deputy examiners of the
Board of Examiners. The Oral Examining Panel shall be composed of at
least two deputy examiners who are Senior Foreign Service career
officers of the prospective employing agency, and at least one deputy
examiner who is a Senior Foreign Service career officer from another
foreign affairs agency operating under the Foreign Service Act. The
Examining Panel shall be chaired by a deputy examiner who is a Senior
Foreign Service career officer of the prospective employing agency. At
least one of the Examining Panel members shall represent the functional
or specialist field for which the applicant is being examined.
Determinations of duly constituted panels of deputy examiners are final,
unless modified by specific action of the Board of Examiners.
(ii) Criteria. (A) The Examining Panel will question the applicant
regarding the indicated functional or specialist field and other matters
relevant to the applicant's qualifications for appointment as a Senior
Career Candidate. Prior to the oral examination, the applicant will be
asked to write an essay, on a topic related to Foreign Service work, to
enable the Examining Panel to judge the applicant's effectiveness of
written expression. This essay requirement may be waived at the request
of the head of the prospective employing agency, if, for example, the
applicant is a career member of the Senior Executive Service.
(B) The oral examination will be conducted under written criteria,
established in consultation with the prospective employing agency and
publicly announced by the Board of Examiners. The examination will seek
to determine the ability of the applicant to meet the objective of
section 101 of the Act, which provides for a Senior Foreign Service
''characterized by strong policy formulation capabilities, outstanding
executive leadership qualities, and highly developed functional, foreign
language, and area expertise.''
(iii) Grading. Applicants taking the oral examination will be graded
as ''recommended,'' or ''not recommended'' by the Examining Panel.
Those graded as ''recommended'' also will be given a numerical score,
under the standard Board of Examiners scoring criteria, for use by the
Final Review Panel.
(6) Background investigation. Senior Career Candidate applicants
recommended by the Examining Panel will be subject to the same
background investigation as required for Junior and Mid-Level Foreign
Service Officer Career Candidates. The background investigation shall
be conducted to determine suitability for appointment to the Foreign
Service.
(7) Medical examination. Senior Career Candidate applicants
recommended by the Examining Panel, and their dependents, will be
subject to the same medical examination as required for the Junior and
Mid-Level Foreign Service Career Candidates. The medical examination
shall be conducted to determine the applicant's physical fitness to
perform the duties of a Foreign Service officer on a world-wide basis
and, for applicants and dependents, to determine the presence of any
physical, neurological, or mental condition of such a nature as to make
it unlikely that they would be able to function on a world-wide basis.
Applicants and/or dependents who do not meet the required medical
standards may be given further consideration, as appropriate, under the
procedures of the prospective employing agency.
(8) Foreign language requirement. Applicants recommended by the
Examining Panel will be required to take a subsequent examination to
measure their fluency in foreign languages, and/or their aptitude for
learning them. Senior Career Candidates will be subject to the foreign
language requirements established for their occupational category by
their prospective employing agency. Senior Career Candidate applicants
for the Foreign Commercial Service must demonstrate proficiency by
examination in two foreign languages. United States Information Agency
Senior Career Candidates, other than Senior Specialist Career
Candidates, must demonstrate proficiency in at least one foreign
language. Except for the Foreign Commercial Service and the United
States Information Agency, an applicant may be appointed without first
having passed an examination in a foreign language, but the appointed
Senior Career Candidate may not be commissioned as a Career Senior
Foreign Service officer unless adequate proficiency in a foreign
language is achieved. This language requirement will not apply to
candidates in occupational categories which, in the judgment of the
prospective employing agency, do not require foreign language
proficiency.
(9) Final review panel. (i) The entire file of an applicant
recommended by the Examining Panel will be reviewed and graded by a
Final Review Panel, after the results of the background investigation,
medical examination and language examination are received. The Final
Review Panel will decide whether or not to recommend the applicant for
appointment, taking into account all of the available information
concerning the applicant.
(ii) The Final Review Panel shall consist of a chairperson who shall
be a Deputy Examiner who is a career Senior Foreign Service officer of
the prospective employing agency, and at least two other Deputy
Examiners of the Board of Examiners. Of the Deputy Examiners serving on
the Final Review Panel, the majority shall be career Senior Foreign
Service officers of the prospective employing agency; and at least one
shall be a career Senior Foreign Service officer of one of the other
foreign affairs agencies operating under the Act.
(10) Certification of appointment. The file of an applicant
recommended by the Final Review Panel will be submitted to the Board of
Examiners for consideration and approval. An applicant found by the
Board to meet the standards for appointment as a Senior Foreign Service
Career Candidate shall be so certified to the Director of Personnel of
the prospective employing agency.
(c) Limited non-career appointments. (1) Other Senior Foreign
Service appointments may be made on a limited non-career basis for
individuals who do not wish to compete for career appointments, but for
whom a need can be certified by the Director of Personnel of the foreign
affairs agency concerned. Such limited non-career senior appointees
will be subject to the eligibility requirements set forth in
11.30(b)(1) (i) and (iv). The maximum age set forth in 11.30(b)(1)(ii)
does not apply to such appointments. However, because Foreign Service
members generally are subject to the mandatory retirement age of 65,
under section 812 of the Act, limited non-career Senior appointments
normally will not extend beyond the appointee's 65th birthday. Limited
non-career appointees of the Department of Commerce and the United
States Information Agency will not be subject to the language
requirements of 11.30(b)(8). Applicants for limited non-career senior
appointments will be subject to the same background investigation and
medical examination required of career candidates, but normally they
will not be subject to a written or oral examination, or to approval by
the Board of Examiners. Processing procedures for such applicants will
be established by the Director of Personnel of the foreign affairs
agency concerned. Their appointments normally will be limited to the
duration of the specific assignments for which they are to be hired, may
not exceed 5 years in duration, and may not be renewed or extended
beyond 5 years.
(2) Prior to the expiration of their limited non-career senior
appointments, if they meet all the eligibility requirements set forth in
11.30(b)(1), such individuals may elect to compete for career candidate
status in the Senior Foreign Service by qualifying at that time for and
taking the examinations required of career candidates. If appointed as
career candidates, the length of service under their previous limited
non-career appointments may be counted under the procedures of the
employing agency as part of the trial period of service prescribed
before a career candidate can receive a career appointment. The total
period of limited appointment (non-career and career candidate) of such
individuals may not exceed 5 years in duration.
(3) Nothing in this section will limit the right of an individual who
has previously served as a limited non-career senior appointee from
subsequently applying for consideration as a new applicant and being
appointed as a Senior Career Candidate after a limited non-career
appointment has expired.
(d) Reporting requirement. The Director of Personnel of each foreign
affairs agency shall report annually to the Director General of the
Foreign Service, Department of State, the number and nature of the
limited Senior Foreign Service appointments (non-career and career
candidates) made by that agency under these regulations.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a)
and 301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
(48 FR 38607, Aug. 25, 1983)
22 CFR 11.30 PART 12 -- COMPLAINTS AGAINST EMPLOYEES BY ALLEGED
CREDITORS
Sec.
12.1 No cognizance taken of complaint.
12.2 Claimants denied access to employees.
22 CFR 12.1 No cognizance taken of complaint.
The Department of State will take no cognizance of a complaint
against an employee by an alleged creditor, so far as the complainant is
concerned, beyond acknowledging receipt of his communication.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
(22 FR 10789, Dec. 27, 1957)
22 CFR 12.2 Claimants denied access to employees.
Persons claiming to be creditors or collectors of debts or claims
will be denied access to employees for the purpose of presenting or
collecting claims during the hours set apart for the transaction of
public business or while the employees concerned are on duty.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
(22 FR 10789, Dec. 27, 1957)
22 CFR 12.2 PART 13 -- PERSONNEL
Sec.
13.1 Improper exaction of fees.
13.2 Embezzlement.
13.3 Liability for neglect of duty or for malfeasance generally;
action on bond; penalty.
13.4 False certificate as to ownership of property.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10789, Dec. 27, 1957, unless otherwise noted.
22 CFR 13.1 Improper exaction of fees.
Any consular officer who collects, or knowingly allows to be
collected, for any services any other or greater fees than are allowed
by law for such services, shall, besides his or her liability to refund
the same, be liable to pay to the person by whom or in whose behalf the
same are paid, treble the amount of the unlawful charge so collected, as
a penalty. The refund and penalty may be recovered with costs, in any
proper form of action, by such person for his or her own use. The
amount of such overcharge and penalty may at the discretion of the
Secretary of the Treasury be ordered withheld from the compensation of
such officer for payment to the person entitled to the same (22 U.S.C.
1189).
Note: The foregoing relates to improper collection and personal
withholding of funds by consular officers. For procedure where a
collection, having been erroneously made, has been returned by the
officer to the Treasury in good faith, making a subsequent accounting
adjustment necessary, see 22.4, Refund of fees of this chapter.
(22 U.S.C. 2658 and 3926)
(22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 13.2 Embezzlement.
Every consular officer who shall receive money, property, or effects
belonging to a citizen of the United States and shall not within a
reasonable time after demand made upon him or her by the Secretary of
State or by such citizen, his or her executor, administrator, or legal
representative, account for and pay over all moneys, property, and
effects, less his or her lawful fees, due to such citizen, shall be
deemed guilty of embezzlement, and shall be punishable by imprisonment
for not more than five years, and by a fine of not more than $2,000 (22
U.S.C. 1198). Penalties of imprisonment and fine are also prescribed for
embezzlement in connection with the acceptance, without execution of a
prescribed form of bond, of appointment from any foreign state as
administrator, guardian, or to any other office of trust for the
settlement or conservation of estates of deceased persons or of their
heirs or of persons under legal disabilities (22 U.S.C. 1178 and 1179).
Acceptance of such appointments is not ordinarily permitted under
existing regulations. See 92.81 of this chapter.
(22 U.S.C. 2658 and 3926)
(22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 13.3 Liability for neglect of duty or for malfeasance generally;
action on bond; penalty.
Whenever any consular officer willfully neglects or omits to perform
seasonably any duty imposed upon him or her by law, or by any order or
instruction made or given in pursuance of law, or is guilty of any
willful malfeasance or abuse of power, or of any corrupt conduct in his
or her office, he or she shall be liable to all persons injured by any
such neglect, or omission, malfeasance, abuse, or corrupt conduct, for
all damages, occasioned thereby; and for all such damages, he or she
and his or her sureties upon his or her official bond shall be
responsible thereon to the full amount of the penalty thereof to be sued
in the name of the United States for the use of the person injured.
Such suit, however, shall in no case prejudice, but shall be held in
entire subordination to the interests, claims, and demands of the United
States, as against any officer, under such bond, for every willful act
of malfeasance or corrupt conduct in his or her office. If any consul
neglects or omits to perform seasonably the duties imposed upon him or
her by the laws regulating the shipment and discharge of seamen, or is
guilty of any malversation or abuse of power, he or she shall be liable
to any injured person for all damage occasioned thereby; and for all
malversation and corrupt conduct in office, he or she shall be
punishable by imprisonment for not more than five years and not less
than one, and by a fine of not more than $10,000 and not less than
$1,000 (22 U.S.C. 1199).
(22 U.S.C. 2658 and 3926)
(22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 13.4 False certificate as to ownership of property.
If any consul of vice consul falsely and knowingly certifies that
property belonging to foreigners is property belonging to citizens of
the United States, he or she shall be punishable by imprisonment for not
more than three years, and by a fine of not more than $10,000 (22 U.S.C.
1200).
(22 U.S.C. 2658 and 3926)
(22 FR 10789, Dec. 27, 1957, as amended by Dept. Reg. 108.838, 49 FR
16989, Apr. 23, 1984)
22 CFR 13.4 PART 16 -- FOREIGN SERVICE GRIEVANCE SYSTEM
Sec.
16.1 Definitions.
16.2 General provisions.
16.3 Access to records.
16.4 Time limits for grievance filing.
16.5 Relationship to other remedies.
16.6 Security clearances.
16.7 Agency procedures.
16.8 Agency review.
16.9 Records.
16.10 Foreign Service Grievance Board.
16.11 Grievance Board consideration of grievances.
16.12 Hearing.
16.13 Decisions.
16.14 Reconsideration of a grievance.
16.15 Judicial review.
Authority: Sec. 4 of the Act of May 26, 1949, as amended (63 Stat.
111; 22 U.S.C. 2658); Pub. L. 94-141 (89 Stat. 765); 22 U.S.C. 1037;
sec. 10 of E.O. 11636 (36 FR 24901).
Source: 41 FR 13912, Apr. 1, 1976, unless otherwise noted.
22 CFR 16.1 Definitions.
(a) Act means the Foreign Service Act of 1946, as amended.
(b) Grievant means any officer or employee of the Service who is a
citizen of the United States; or for purposes of paragraphs (c) (7) and
(8) of this section, a former officer or employee of the Service; or in
the case of death of the officer or employee, a surviving spouse or
dependent family member of the officer or employee.
(c) Grievance means any act or condition subject to the control of
the Foreign Affairs agencies (the Department of State, the Agency for
International Development, or the U.S. Information Agency) which is
alleged to deprive the grievant of a right or benefit authorized by law
or regulation or is otherwise a source of concern or dissatisfaction to
the grievant, including, but not limited to the following:
(1) Complaints against separation of an officer or employee allegedly
contrary to law or regulation or predicated upon alleged inaccuracy
(including inaccuracy resulting from omission or any relevant and
material document), error, or falsely prejudicial character of any part
of the grievant's official personnel record;
(2) Other alleged violation, misinterpretation, or misapplication of
applicable law, regulation, or published policy affecting the terms and
conditions of the grievant's employment or career status;
(3) Allegedly wrongful disciplinary action against an employee
constituting a reprimand or suspension from official duties;
(4) Dissatisfaction with any matter subject to the control of the
agency with respect to the grievant's physical working environment;
(5) Alleged inaccuracy, error, or falsely prejudicial material in the
grievant's official personnel file;
(6) Action alleged to be in the nature of reprisal or other
interference with freedom of action in connection with an employee's
participation under these grievance procedures;
(7) When the grievant is a former officer who was involuntarily
retired pursuant to sections 633 and 634 of the Act within 6 years prior
to December 1, 1975, ''grievance'' shall mean a complaint that such
involuntary retirement violated applicable law or regulation effective
at the time of the retirement or that the involuntary retirement was
predicated directly upon material contained in the grievant's official
personnel file alleged to be erroneous or falsely prejudicial in
character; and
(8) When the grievant is a former officer or employee or a surviving
spouse or dependent family member of a former officer or employee,
''grievance'' shall mean a complaint that an allowance or other
financial benefit has been denied arbitrarily, capriciously or contrary
to applicable law or regulation.
(d) Grievance does not include the following:
(1) Complaints against individual assignment or transfers of Foreign
Service officers or employees, which are ordered in accordance with law
and regulation (see also paragraph (c)(2) of this section);
(2) Judgments of Selection Boards rendered pursuant to section 623 of
the Act, or of equivalent bodies, in ranking Foreign Service officers
and employees for promotion on the basis of merit, or judgments in
examinations prescribed by the Board of Examiners pursuant to section
516 or 517 of the Act (see also paragraph (c)(2) of this section);
(3) Termination of time-limited appointments pursuant to 22 U.S.C.
929 and 1008, and the pertinent regulations prescribed by the employing
agency (see also paragraph (c)(2) of this section);
(4) Any complaints or appeals for which a specific statutory appeals
procedure exists (see Appendix A for examples).
A grievance filed under these procedures may be based on matters for
which there is a specific statutory appeals procedure which is
applicable to the Foreign Service grievant. Should the jurisdiction of
the Grievance Board over a specific grievance be placed into question on
grounds that the basis of the grievance is not encompassed within the
Board's authority ( 16.1(d)(4) and Appendix A), the Board shall consult
with the other statutory body concerned, transmitting the views of the
parties concerned before determining whether it has jurisdiction.
(e) Employee organization means any employee organization accorded
recognition as the excusive employee representative pursuant to
Executive Order 11636 dated December 17, 1971.
(f) Grievance Board or Board means the full Foreign Service Grievance
Board, or a Panel or member thereof, as appropriate.
(g) Party means the grievant or the Foreign Affairs agency having
control over the act or condition forming the subject matter of the
grievance.
(h) Bureau means equivalent organizational elements in State and
USIA, and includes offices in AID.
(i) Days means calendar days.
22 CFR 16.2 General provisions.
(a) Statement of purpose. These regulations establish procedures as
required by law to provide Foreign Service officers and employees (and
their survivors) of the Foreign Affairs agencies, a grievance procedure
to insure a full measure of due process, and to provide for the just
consideration and resolution of grievances of such officers, employees,
and survivors. No regulation promulgated in this part shall be
interpreted or applied in any manner which would alter or abridge the
provisions of the due process established by the Congress in Pub. L.
94-141, 22 U.S.C. 1037, section 691.
(b) Discussion of complaints. (1) Every effort should be made to
settle any employee complaint informally, promptly, and satisfactorily.
(2) Supervisors and other responsible officers should encourage
employees to discuss complaints with them and should respond in a timely
manner to resolve the complaints.
(3) An employee initially should discuss a complaint with the
employee's current supervisor or with the responsible officer who has
immediate jurisdiction over the complaint to give that person an
opportunity to resolve the matter, before further steps are taken under
these procedures.
(c) Guidance. Nothing in these procedures prevents a grievant from
seeking guidance from any official who might be helpful respecting the
submission of a grievance or its resolution.
(d) Freedom of action. (1) Any grievant, witness, representative or
other person involved in a proceeding hereunder shall be free from any
restraint, interference, coercion, harassment, discrimination, or
reprisal in those proceedings or by virtue of them. The Foreign Affairs
agencies recognize their obligation to insure compliance with this
section. Any person involved or having immediate knowledge of any
alleged breach of this section should call it to the attention of the
pertinent foreign affairs agency through appropriate channels for
corrective action as necessary. Normally such allegations should be
brought to the attention of the senior agency official at the post; and
at Washington, D.C., to the Director, Grievance Staff for State; Chief,
Employee Relations Branch for AID and Chief, Employee-Management
Relations Division for USIA.
(2) The grievant has the right to a representative of the grievant's
own choosing at every stage of the proceedings. The grievant and repre-
sentative(s) who are under the control, supervision, or responsibility
of the Foreign Affairs agencies shall be granted reasonable periods of
administrative leave to prepare, to be present, and to present the
grievance.
(3) Any witness under the control, supervision, or responsibility of
a Foreign Affairs agency shall be granted reasonable periods of
administrative leave to appear and testify at any such proceeding.
(4) The Foreign Service Grievance Board established hereunder shall
have authority to ensure that no copy of the determination of the agency
head or designee to reject a Grievance Board recommendation, no notation
of the failure of the Grievance Board to find for the grievant, and no
notation that a proceeding is pending or has been held, shall be entered
in the personnel records of the grievant (unless by order of the
Grievance Board as a remedy for the grievance) or those of any other
officer or employee connected the the grievance. The Foreign Affairs
agencies shall maintain grievance records under appropriate safeguards
to preserve confidentiality ( 16.9).
22 CFR 16.3 Access to records.
(a) Grievance Board records. The grievant and the grievant's
representative shall have access to the record of proceedings, including
the decision of the Board.
(b) Agency records. (1) In considering the validity of a grievance,
the Grievance Board shall have access, to the extent permitted by law,
to any agency record considered by the Board to be relevant to the
grievant and the subject matter of the grievance.
(2) The agency shall, subject to applicable law, promptly furnish the
grievant any agency record which the grievant requests to substantiate
the grievance and which the agency or the Grievance Board determines is
relevant and material to the proceeding. When deemed appropriate by the
agency or the Board, a grievant may be supplied with only a summary of
extract of classified material. If a request by a grievant for a
document is denied prior to or during the agency's consideration of a
grievance, such denial may be raised by the grievant as an integral part
of the grievance before the Board.
(3) These regulations do not require disclosure of any official
agency record to the Grievance Board or a grievant where the head of
agency or deputy determines in writing that such disclosure whould
adversely affect the foreign policy or national security of the United
States.
22 CFR 16.4 Time limits for grievance filing.
(a) A grievance concerning a continuing practice or condition may be
presented at any time if its adverse effect is presently continuing.
Documents contained in official employee personnel files, for example,
shall be deemed to constitute a continuing condition.
(b) Subject to paragraph (a) of this section, a grievance under these
regulations is forever barred, and the Grievance Board shall not
consider or resolve the grievance, unless the grievance is presented
within a period of 3 years after the occurrence or occurrences giving
rise to the grievance, except that if the grievance arose earlier than 2
years prior to the effective date of these regulations, the grievance
shall be so barred, and no considered and resolved, unless it is
presented within a period of 2 years after the effective date of these
regulations, There shall be excluded from the computation of any such
period any time during which the grievant was unaware of the grounds
which are the basis of the grievance and could not have discovered such
grounds if the grievant had exercised, as determined by the Grievance
Board, reasonable diligence.
(c) A grievance shall be deemed presented to the responsible official
( 16.7(b)), transmitted to post or bureau ( 16.7(c)) submitted for
agency review ( 16.8) or filed with the Grievance Board 16.11(a):
(1) On the date of its dispatch by telegram, registered or certified
mail, or receipted mail, in a diplomatic pouch;
(2) On the date of its arrival at the appropriate office, if
delivered by any other means.
22 CFR 16.5 Relationship to other remedies.
(a) A grievant may not file a grievance under these procedures if the
grievant has formally requested, prior to filing a grievance, that the
matter or matters which are the basis of the grievance be considered or
resolved and relief be provided, under another provision of law,
regulation, or executive order, and the matter has been carried to final
decision thereunder on its merits or is still under consideration.
(b) If a grievant is not prohibited from filing a grievance under
these regulations by paragraph (a) of this section, the grievant may
file under these regulations notwithstanding the fact that such
grievance may be eligible for consideration, resolution, and relief
under a regulation or executive order other than under these
regulations, but such election of remedies shall be final upon the
acceptance of jurisdiction by the Board.
22 CFR 16.6 Security clearances.
The agencies shall use their best endeavors to expedite security
clearances whenever necessary to ensure a fair and prompt investigation
and hearing.
22 CFR 16.7 Agency procedures.
(a) Initial consideration. (1) Grievances shall be considered
through the steps provided in this section before they are filed with
the Grievance Board.
(2) During the pendency of agency procedures under this section, the
grievant may request a suspension of the proposed action of the
character of separation or termination of the grievant, disciplinary
action against the grievant, or recovery from the grievant of alleged
overpayment of salary, expenses or allowances, which is related to the
grievance. The request must be in writing and addressed to the
responsible official of the agencies, as designated in 16.8(a)(2)
stating the reasons for such suspension. If the request is related to
separation or termination of the grievant, and the agency considers that
the grievance is not frivolous and is integral to the proposed action,
the agency shall suspend its proposed action until completion of agency
procedures, and for a period thereafter if necessary, consistent with
paragraph (a) of 16.11, to permit the grievant to file a grievance with
the Board, and to request interim relief under paragraph (c) of 16.11.
If a request is denied, the agency shall provide the grievant in writing
the reason for denial. Nothing in these regulations shall be deemed to
preclude an employee from requesting the suspension of any proposed
action.
(b) Consideration by responsible officer. (1) While every effort
should be made to resolve a complaint by an initial discussion between
an employee and the supervisor or responsible officer, an employee may
present the complaint as a grievance by submitting it in writing, to
that person. (The term ''responsible officer'' as used herein includes
any appropriate officer who has immediate jurisdiction over the
complaint.) The presentation shall include a description of the act or
condition which is the subject of the grievance; its effect on the
grievant; any provision of law, regulation, or agency policy which the
grievant may believe was violated or misapplied; any documentary
evidence readily available to the grievant on which the grievance rests;
the identity of individuals having knowledge of relevant facts; and a
statement of the remedial action requested.
(2) The responsible officer, whenever possible, shall use independent
judgment in deciding whether the grievance is meritorious and what the
resolution of it should be. Within 15 days from receipt of the written
grievance, the responsible officer shall provide the grievant with a
written response, which shall include a statement of any proposed
resolution of the grievance.
(3) If the response denies in whole or in part the remedial action
requested, such response shall notify the grievant of the time within
which to appeal the decision, and identity of the senior official, or
designee, to whom the appeal should be addressed. In those cases in
which the senior official, or designee, is the responsible officer to
whom the grievance was initially presented or has participated in the
decision process and has formally approved the written response of the
responsible officer, the grievant shall be so notified and advised that
the grievance may be submitted directly to the agency for review under
16.8.
(c) Bureau or post review. (1) If the responsible officer's written
response does not resolve the grievance to the grievant's satisfaction,
within 10 days of receiving it (or, if no response is received, within
25 days after first presenting the grievance), the grievant may pursue
the grievance by transmitting it in writing to the senior official, or
the designee in the bureau or post which has authority to resolve the
grievance. The written transmission shall include all the information
required by paragraph (b)(1) of this section and copies of any
correspondence under paragraphs (b) (2) and (3) of this section.
(2) Within 15 days from receipt of the grievance that official shall
provide the grievant with a written decision, including any proposed
resolution of the grievance. If the decision denies in whole or in part
the remedial action requested, the communication shall notify the
grievant of the time within which to submit the grievance for agency
review and the identity of the appropriate agency official to whom the
grievance should be addressed.
22 CFR 16.8 Agency review.
(a) Submission. (1) An employee may submit the grievance for agency
review if the grievance (i) is not within the jurisdiction of a post or
bureau, or (ii) the grievance has been considered but not resolved to
the grievant's satisfaction within the post or bureau as provided in
16.7(c) within 10 days after receipt of the post's or bureau's decision
(or, if no response is received, within 25 days after presenting it to
the senior official or the designee). The grievant shall submit it in
writing to the responsible official of the agency which has control of
the act or condition which is the subject of the grievance.
(2) Responsible officials. The responsible officials of the agencies
are the Deputy Assistant Secretary for Personnel (State), the Director
of Personnel and Manpower (AID), and the Chief, Employee-Management
Relations Division (USIA).
(3) Contents. (i) A request for agency review shall include a
description of the act or condition which is the subject of the
grievance; its effect on the grievant; any provision of law,
regulation or agency policy which the grievant may believe was violated
or misapplied; copies of any correspondence under 16.7(a), any
documentary evidence readily available to the grievant on which the
grievance rests; the identity of individuals having knowledge of
relevant facts; and a statement of the remedial action requested.
(ii) The responsible official shall review the grievance on the basis
of available documentary evidence, and, in that official's discretion,
interview persons having knowledge of the facts. The agency review
shall be completed and its decision dispatched within 90 days from the
date of the initial written presentation of the grievance. The grievant
shall be informed in writing of the findings of the responsible official
and any proposed resolution of the grievance. The communication shall
also include the time within which the grievant may file a grievance
with the Grievance Board and the appropriate procedure to be followed in
this respect.
22 CFR 16.9 Records.
All official records concerning agency consideration of grievances,
except those appropriate to implementation of decisions favorable to
grievants, shall be kept separate from the official personnel record of
the grievant and any other individuals connected with the grievance, and
shall not be accessible to agency personnel other than the grievant, the
grievant's representative, and those responsible for consideration of
grievances.
22 CFR 16.10 Foreign Service Grievance Board.
(a) Establishment and composition. There is hereby established a
Foreign Service Grievance Board for the Department of State, the Agency
for International Development and the U.S. Information Agency to
consider and resolve grievances under these procedures.
(b) The Grievance Board shall consist of not less than 5 members nor
more than 15 members (including a chairperson) who shall be independent,
distinguished citizens of the United States, well known for their
integrity, who are not active officers, employees, or consultants of the
Foreign Affairs agencies (except consultants who served as public
members of the Interim Grievance Board previously established under
section 660, Volume 3, Foreign Affairs Manual) but may be retired
officers or employees. On its initial establishment, the Board shall
consist of 15 members including chairperson.
(c) The Board may act by or through panels or individual members
designated by the chairperson, except that hearings within the
continental United States shall be held by panels of at least three
members unless the parties agree otherwise. Reference in these
regulations to the Grievance Board shall be considered to be reference
to a panel or member of the Grievance Board where appropriate. All
members of the Grievance Board shall act as impartial individuals in
considering grievances.
(d) The members of the Grievance Board, including the chairperson,
shall be appointed by the Secretary of State after being designated by
the written agreement of the Foreign Affairs agencies and the employee
organization.
(e) The Board chairperson and other members shall be appointed for
terms of 2 years, subject to renewal upon the agreement of the Foreign
Affairs agencies and the employee organization; except that the terms
of 7 of the initially appointed members shall expire at the end of one
year.
(f) Any vacancies shall be filled by the Secretary of State upon the
nomination by the Board following the agreement of the agencies and the
employee organization.
(g) Compensation. Members, including the chairperson, who are not
employees of the Federal Government shall receive compensation for each
day they are performing their duties as members of the Grievance Board
(including travel time) at the daily rate paid an individual at GS-18
level of the General Schedule under section 5332 of Title 5 of the
United States Code.
(h) Removal. Grievance Board members shall be subject to removal by
the Secretary of State for corruption, other malfeasance, or the
demonstrated incapacity to perform their functions. No member shall be
removed from office until after the Board of the Foreign Service has
conducted a hearing and made its recommendations in writing to the
Secretary of State, except where the right to a hearing is waived in
writing. The Board of the Foreign Service shall provide a member with
full notice of the charges against that member, and afford a member the
right to counsel, to examine and cross-examine witnesses, and to present
documentary evidence.
(i) Grievance Board procedures. In accordance with Part J, Title VI
of the Act, the Board may adopt regulations concerning the organization
of the Board and such other regulations as mey be necessary to govern
its proceedings.
(j) Board facilities and staff support. The Grievance Board may
obtain facilities, services, and supplies through the general
administrative services of the Department of State. All expenses of the
Board, including necessary costs of the grievant's travel and
travel-related expenses, shall be paid out of funds appropriated to the
Department for obligation and expenditure by the Board. At the request
of the Board, officers and employees on the rolls of the Foreign Affairs
agencies may be assigned as staff employees to the Grievance Board.
Within the limit of appropriated funds, the Board may appoint and fix
the compensation of such other employees as the Board considers
necessary to carry out its functions. The officers and employees so
appointed or assigned shall be responsible solely to the Grievance Board
and the Board shall prepare the performance evaluation reports for such
officers and employees. The records of the Grievance Board shall be
maintained by the Board and shall be separate from all other records of
the Foreign Affairs agencies.
22 CFR 16.11 Grievance Board consideration of grievances.
(a) Filing of grievance. A grievant whose grievance is not resolved
satisfactorily under agency procedures ( 16.7) shall be entitled to file
a grievance with the Grievance Board no later than 60 days after
receiving the agency decision. In the event that an agency has not
provided its decision within 90 days of presentation, the grievant shall
be entitled to file a grievance with the Grievance Board no later than
150 days after the date of presentation to the agency. The Board may
extend or waive, for good cause, the time limits stated in this section.
(b) Exhaustion of agency procedures. In the event that the Grievance
Board finds that a grievance has not been presented for agency
consideration or that a grievance has been expanded or modified to
include materially different elements, the Board shall return the
grievance to the official responsible for final agency review unless the
agency waives any objection to Board consideration of the grievance
without such review.
(c) Prescription of interim relief. If the Grievance Board
determines that the agency is considering any action of the character of
separation or termination of the grievant, disciplinary action against
the grievant, or recovery from the grievant of alleged overpayment of
salary, expenses, or allowances, which is related to a grievance pending
before the Board, and that such action should be suspended, the agency
shall suspend such action until the Board has ruled upon the grievance.
Notwithstanding such suspension of action, the head of the agency
concerned or a chief of mission or principal officer may exclude an
officer or employee from official premises or from the performance of
specified duties when such exclusion is determined in writing to be
essential to the functioning of the post or office to which the officer
or employee is assigned.
(d) Inquiry into grievances. The Board shall conduct a hearing at
the request of a grievant in any case which involves disciplinary
action, or a grievant's retirement from the Service under sections 633
and 634 of the Act, or which in the judgment of the Board can best be
resolved by a hearing or by presentation of oral argument. In those
grievances in which the Board holds no hearing, the Board shall offer to
each party the opportunity to review and to supplement, by written
submission, the record of proceedings prior to its decision.
22 CFR 16.12 Hearing.
(a) Appearances and representation. The grievant, a reasonable
number of representatives of the grievant's own choosing, and a
reasonable number of agency representatives, are entitled to be present
at the hearing. The Grievance Board may, after considering the views of
the parties and any other individuals connected with the grievance,
decide that a hearing should be open to others.
(b) Conduct of hearing. (1) Testimony at a hearing shall be given by
oath or affirmation which any Board member or person designated by the
Board shall have authority to administer.
(2) Each party shall be entitled to examine and cross-examine
witnesses at the hearing or by deposition, and to serve interrogatories
answered by the other party unless the Board finds such interrogatory
irrelevant or immaterial. Upon request of the Board, or upon a request
of the grievant deemed relevant and material by the Board, and agency
shall promptly make available at the hearing or by deposition any
witness under its control, supervision or responsibility, except that if
the Board determines that the presence of such witness at the hearing is
required for just resolution of the grievance, then the witness shall be
made available at the hearing, with necessary costs and travel expenses
provided by the agency.
(3) During any hearings held by the Board, any oral or documentary
evidence may be received but the Board shall exclude any irrelevant,
immaterial, or unduly repetitious evidence normally excluded in hearings
conducted under the Administrative Procedures Act (5 U.S.C. 556).
(4) A verbatim transcript shall be made of any hearing and shall be
part of the record of proceedings.
22 CFR 16.13 Decisions.
(a) Upon completion of the hearing or the compilation of such record
as the Board may find appropriate in the absence of a hearing, the board
shall expeditiously decide the grievance on the basis of the record of
proceedings. In each case the decision of the Board shall be in
writing, shall include findings of fact, and shall include the reasons
for the Board's decision.
(b) If the Grievance Board finds that the grievance is meritorious,
the Board shall have the authority within the limitations of the
authority of the head of the agency, to direct the agency:
(1) To correct any official personnel record relating to the grievant
which the Board finds to be inaccurate, erroneous, or falsely
prejudicial;
(2) To reverse and administrative decision denying the grievant
compensation including related within-class salary increases pursuant to
section 625 of the Act or any other perquisite of employment authorized
by law or regulation when the Board finds that such denial was
arbitrary, capricious, or contrary to law or regulation;
(3) To retain in service and employee whose termination would be in
consequence of the matter by which the employee is aggrieved;
(4) To reinstate with back pay, under applicable law and regulations,
an employee where it is clearly established that the separation or
suspension without pay of the employee was unjustified or unwarranted;
(5) To order an extension of the time of an employee's eligibility
for promotion to a higher class where the employee suffered career
impairment in consequence of the matter by which the employee is
aggrieved;
(6) To order that an employee be provided with facilities relating to
the physical working environment which the employee has been denied
arbitrarily, capriciously or in violation of applicable regulation.
(c) Such orders of the Board shall be final, subject to judicial
review as provided for in section 694 of the Act, except that
reinstatement of former officers who have filed grievances under
16.1(c)(7) shall be presented as Board recommendations, the decision on
which shall be subject to the sole discretion of the agency head or
designee, who shall take into account the needs of the Service in
deciding on such recommendations, and shall not be subjected to judicial
review under section 694 of the Act. The reason(s) for the agency
head's (or designee's) decision will be conveyed in writing to the Board
and the grievant.
(d) If the Board finds that the grievance is meritorious and that
remedial action should be taken that directly relates to promotion or
assignment of the grievant, or to other remedial action, including
additional step increases, not provided for in paragraph (b) of this
section, or if the Board finds that the evidence before it warrants
disciplinary action against any officer or employee, it shall make an
appropriate recommendation to the head of the agency, and forward to the
head of the agency the record of the Board's proceedings, including the
transcript of the hearing, if any. The head of the agency (or designee,
who shall not have direct responsibility for administrative management)
shall make a written decision to the parties and to the Board on the
Board's recommendation within 30 days from receipt of the
recommendation. A recommendation of the Board may be rejected in part
or in whole if the action recommended would be contrary to law, would
adversely affect the foreign policy or security of the United States, or
would substantially impair the efficiency of the Service. If the
decision rejects the Board's recommendation in part or in whole, the
decision shall state specifically any and all reasons for such action.
Pending the decision, there shall be no ex parte communications
concerning the grievance between the agency head, or designee, and any
person involved in the grievance proceeding.
22 CFR 16.14 Reconsideration of a grievance.
A grievant whose grievance is found not to be meritorious by the
Board may obtain reconsideration by the Board only upon presenting newly
discovered or previously unavailable material evidence not previously
considered by the Board and then only upon approval of the Board.
22 CFR 16.15 Judicial review.
Any aggrieved party may obtain judicial review of these regulations,
and revisions thereto, and final actions of the agency head (or
designee) or the Grievance Board hereunder, in the District Courts of
the United States, in accordance with the standards set forth in Chapter
7 of Title 5 of the United States Code. Section 706 of Title 5 shall
apply without limitation or exception.
22 CFR 16.15 PART 17 -- OVERPAYMENTS TO ANNUITANTS UNDER THE FOREIGN
SERVICE RETIREMENT AND DISABILITY SYSTEM
Sec.
17.1 Definitions.
17.2 General provisions.
17.3 Notice to annuitants.
17.4 Initial determination.
17.5 Standards.
17.6 Notice of decision and right of appeal.
17.7 Appeal.
Authority: 22 U.S.C. 842; 22 U.S.C. 1061; 22 U.S.C. 2658; and
E.O. 10897 (25 FR 12439).
Source: 44 FR 47928, Aug. 16, 1979, unless otherwise noted.
22 CFR 17.1 Definitions.
(a) Act means the Foreign Service Act of 1946, as amended.
(b) Annuitant has the meaning set forth in section 804(1) of the Act
(22 U.S.C. 1064(1)).
(c) Foreign Service Grievance Board means the Board established by 22
CFR 16.10 under sections 691 and 692 of the Act (22 U.S.C. 1037-1037c).
(d) Overpayments has the same meaning as in 822(d) of the Act (22
U.S.C. 1076a(d)).
(e) Secretary means the Secretary of State.
22 CFR 17.2 General provisions.
Section 822(d) of the Act (22 U.S.C. 1076(d)) provides recovery of
overpayments by the Department of State of benefits to annuitants may
not be made when, in the judgment of the Secretary, the individual
recipient is without fault and recovery would be against equity and good
conscience or administratively infeasible. This part establishes
procedures for notification to annuitants of their rights, for
administrative determination of those rights and for appeals of negative
determinations. This part also establishes procedures by which an
annuitant can contest a determination that the annuitant has been
overpaid.
22 CFR 17.3 Notice to annuitants.
The Office of Finance, Department of State, shall give written
notification to any person who has received an overpayment, the cause of
the overpayment, the intention of the Department to seek repayment of
the overpayment, and the basis for that action, the right of the
annuitant to contest the alleged overpayment or to request a waiver of
recovery, and the procedure to follow in case of such contest or appeal.
The notification shall allow at least 30 days from its date within
which the annuitant may file a written response, which may include
evidence, argument, or both.
22 CFR 17.4 Initial determination.
(a) The Director of the Office of Finance will be responsible for
preparing an administrative file as a basis for determination in each
case where an annuitant contests a claim to recover overpayment or
requests waiver of recovery. This file shall include: all
correspondence with the annuitant; documentation on the computation of
the annuity or annuities in question; and any information available to
the Department which bears on the application of the standards of waiver
of recovery to the particular case.
(b) On the basis of the administrative file, the Director, after
consultation with and review of the preliminary findings by the Office
of the Legal Adviser and Office of Employee Relations, Bureau of
Personnel, shall prepare a preliminary finding. This preliminary
finding shall contain a positive or negative determination on all
material issues raised by the contest or request for waiver. In the
latter case, there shall be a determination of the applicability or
non-applicability of each of the standards set forth in 17.5.
(c) The Director shall make the final administrative determination.
(d) At any time before the final administrative decision, the
Director may request the annuitant to supplement his or her submission
with additional factual information and may request that the annuitant
authorize the Department of State to have access to bank and other
financial records bearing on the application of these regulations.
22 CFR 17.5 Standards.
(a) General. (1) Waiver of overpayment will not be allowed in any
case prior to receipt and evaluation of a statement of financial
responsibility, duly sworn by the recipient of the overpayment, except
in those cases where the facts make it obvious that the individual has
no capacity to repay. Such statement will be waived in the latter case.
(2) Waiver of overpayment will not be allowed when overpayment has
been made to an estate.
(b) Fault. (1) Determinations of ''fault'' or the absence thereof,
will be made according to the commonly understood and standard concepts
of equity applicable thereto.
(2) A prerequisite to waiver of overpayment shall be clear and
convincing showing that the person from whom recovery would otherwise be
made did not cause, or was not otherwise responsible for the
overpayment, i.e., he or she performed no act of commission or omission
that resulted in the overpayment. Pertinent consideration to be made in
this area are:
(i) Whether payment resulted from the individual's incorrect (not
necessarily fraudulent) statement.
(ii) Whether he or she knew the payment was erroneous and, if so,
whether his or her subsequent failure to act resulted from desire or
ignorance.
(iii) Whether he or she failed to disclose material facts in his or
her possession.
(iv) Whether he or she could have determined that the payment was
erroneous.
(c) Equity and good conscience. (1) ''Equity and good conscience''
as defined in equity and the commonly understood meaning thereof shall
be attached to waiver determinations. In addition, the decision must be
made whether the exercise of waiver of overpayment would be in
opposition to the basic purpose of Title VII of the Foreign Service Act
(22 U.S.C. 1061, et seq.) and would injure the administration of such
title.
(2) The following guides will also be applied, as appropriate.
(i) Waiver of overpayment may be granted when an individual by reason
of receipt of the overpayment has: (a) Relinquished a valuable right;
or (b) changed his or her position for the worse.
(ii) Waiver of overpayment may be granted when the individual has
consistently acted in good faith regarding the overpayment.
(iii) Waiver of overpayment cannot be granted when the individual has
been found to be at fault or if the overpayment has been obtained by
fraud.
22 CFR 17.6 Notice of decision and right of appeal.
If the annuitant, without good cause shown, fails or refuses to
produce the requested additional information or authorization, the
Department of State is entitled to made adverse inferences with respect
to the matters sought to be amplified, clarified, or verified.
(a) The final administrative decision shall be reduced to writing and
the Director shall send it expeditiously to the annuitant.
(b) If the decision is adverse to the annuitant, the notification of
the decision shall include a written description of the annuitant's
rights of appeal to the Foreign Service Grievance Board, including time
to file, where to file, and applicable procedure.
22 CFR 17.7 Appeal.
The Foreign Service Grievance Board shall entertain any appeal under
this part in accordance with the regulations of the Board set forth in
22 CFR part 16. The Director of the Office of Finance, with such
assistance as may be necessary, shall represent the Department in
proceedings before the Board. The decision of the Board is final.
22 CFR 17.7 PART 18 -- REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST
22 CFR 17.7 Subpart A -- General Provisions
Sec.
18.1 Scope.
18.2 Definitions.
18.3 Director General.
18.4 Records.
22 CFR 17.7 Subpart B -- Applicable Rules
18.5 Interpretative standards; advisory opinions.
22 CFR 17.7 Subpart C -- Administrative Enforcement Proceedings
18.6 Authority to prohibit appearances.
18.7 Report of violation by a former employee.
18.8 Institution of proceeding.
18.9 Contents of complaint.
18.10 Service of complaint and other papers.
18.11 Answer.
18.12 Motions and requests.
18.13 Representation.
18.14 Hearing examiner.
18.15 Hearings.
18.16 Evidence.
18.17 Depositions.
18.18 Proposed findings and conclusions.
18.19 Decision of the hearing examiner.
18.20 Appeal to the Board of Appellate Review.
18.21 Decision of the Board of Appellate Review.
18.22 Notice of disciplinary action.
Authority: 18 U.S.C. 207, as amended, 92 Stat. 1864.
Source: 46 FR 2608, Jan. 12, 1981, unless otherwise noted.
22 CFR 17.7 Subpart A -- General Provisions
22 CFR 18.1 Scope.
This part contains rules governing disciplinary action against a
former officer or employee of the Department of State, including the
Foreign Service, because of a violation of the post employment conflict
of interest prohibitions. Such disciplinary action may include
prohibition from practice before the Department of State and any
component thereof as defined in this part.
22 CFR 18.2 Definitions.
For the purpose of this part --
(a) The term Department means the Department of State and includes
the Foreign Service.
(b) The term Director General means the Director General of the
Foreign Service and Director of Personnel.
(c) The term practice means any informal or formal appearance before,
or, with the intent to influence, any oral or written communication to
the Department on a pending matter of business on behalf of any other
person (except the United States).
22 CFR 18.3 Director General.
The Director General shall institute and provide for the conduct of
disciplinary proceedings involving former employees of the Department as
authorized by 18 U.S.C. 207(j), and perform such other duties as are
necessary or appropriate to carry out his/her functions under this part.
22 CFR 18.4 Records.
The roster of all persons prohibited from practice before the
Department shall be available to public inspection at the Office of
Director General. Other records may be disclosed upon specific request,
in accordance with appropriate disclosure regulations of the Department.
22 CFR 18.4 Subpart B -- Applicable Rules
22 CFR 18.5 Interpretative standards; advisory opinions.
(a) A determination that a former officer or employee of the
Department violated 18 U.S.C. 207(a), (b) or (c) will be made in
conformance with the standards established in the interpretative
regulations promulgated, either in interim or final form by the Office
of Government Ethics and published at 5 CFR part 737.
(b) Former officers and employees of the Department wanting to know
whether a proposed course of conduct would be in conformity with the Act
or the interpretive regulations thereunder may contact the Assistant
Legal Adviser for Management to request an advisory opinion.
22 CFR 18.5 Subpart C -- Administrative Enforcement Proceedings
22 CFR 18.6 Authority to prohibit appearances.
Pursuant to 18 U.S.C 207(j), if the Director General finds, after
notice and opportunity for a hearing, that a former officer or employee
of the Department has violated 18 U.S.C. 207(a), (b) or (c), the
Director General in his/her discretion may prohibit that person from
engaging in practice before the Department for a period not to exceed
five years, or may take other appropriate disciplinary action.
22 CFR 18.7 Report of violation by a former employee.
(a) If an officer or employee of the Department has reason to believe
that a former officer or employee of the Department has violated any
provision of this part, or if any such officer or employee receives
information to that effect, he/she shall promptly make a written report
thereof, which report or a copy thereof shall be forwarded to the
Director General. If any other person has information of such
violations, he/she may make a report thereof to the Director General or
to any officer or employee of the Department.
(b) The Director General shall coordinate proceedings under this part
with the Department of Justice in cases where it initiates criminal
prosecution.
22 CFR 18.8 Institution of proceeding.
Whenever the Director General determines that there is sufficient
reason to believe that any former officer or employee of the Department
has violated 18 U.S.C. 207(a), (b) or (c), he/she may institute an
administrative disciplinary proceeding. The proceeding may be for that
person's suspension from practice before the Department or for some
lesser penalty. The proceeding shall be instituted by a complaint which
names the respondent and is signed by the Director General and filed in
his/her office. Except in cases of willfulness, or where time, the
nature of the proceeding, or the public interest does not permit, a
proceeding will not be instituted under this section until facts or
conduct which may warrant such action have been called to the attention
of the proposed respondent in writing and he/she has been accorded the
opportunity to provide his/her position on the matter.
22 CFR 18.9 Contents of complaint.
A complaint shall plainly and concisely describe the allegations
which constitute the basis for the proceeding. A complaint shall be
deemed sufficient if it fairly informs the respondent of the charges
against him/her so that the respondent is able to prepare a defense.
Written notification shall be given of the place and of the time within
which the respondent shall file his/her answer, which time shall not be
less than 15 days from the date of service of the complaint. Notice
shall be given that a decision by default may be rendered against the
respondent in the event he/she fails to file an answer.
22 CFR 18.10 Service of complaint and other papers.
(a) Complaint. The complaint or a copy thereof may be served upon
the respondent by certified mail; by delivering it to the respondent or
his/her attorney or agent of record either in person; or by leaving it
at the office or place of business of the respondent, attorney or agent;
in any other manner which has been agreed to by the respondent; or by
first-class mail in case of a person resident abroad.
(b) Service of papers other than complaint. Any paper other than the
complaint may be served upon a respondent as provided in paragraph (a)
of this section or by mailing the paper by first-class mail to the
respondent at the last address known to the Director General, or by
mailing the paper by first-class mail to the respondent's attorney or
agent of record. Such mailing shall constitute complete service.
(c) Whenever the filing of a paper is required or permitted in
connection with a proceeding, and the place of filing is not specified
by this subpart or by rule or order of the hearing examiner, the paper
shall be filed with the Director General, Department of State,
Washington, D.C. 20520. All papers shall be filed in duplicate.
22 CFR 18.11 Answer.
(a) Filing. The respondent's answer shall be filed in writing within
the time specified in the complaint or notice of institution of the
proceeding, unless on application the time is extended by the Director
General. The answer shall be filed in duplicate with the Director
General.
(b) Contents. The answer shall contain a statement of facts which
constitute the grounds of defense, and it shall specifically admit or
deny each allegation set forth in the complaint. The respondent may
also state affirmatively special matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every
allegation in the complaint which is not denied in the answer shall be
deemed to be admitted and may be considered as proved. Failure to file
an answer within the time prescribed in the notice to the respondent,
except as the time for answer is extended by the Director General shall
constitute a waiver of hearing, and the Director General may make
his/her decision by default without a hearing or further procedure.
22 CFR 18.12 Motions and requests.
Motions and requests, including requests to intervene, may be filed
with the Director General.
22 CFR 18.13 Representation.
A respondent or proposed respondent may appear in person or he/she
may be represented by counsel or other representative. The Director
General may be represented by an attorney or other employee of the
Department.
22 CFR 18.14 Hearing examiner
(a) After an answer is filed, if the Director General decides to
continue the administrative disciplinary proceedings, he/she shall
appoint a hearing examiner to conduct those proceedings under this part.
(b) Authorities. Among other powers, the hearing examiner shall have
authority, in connection with any proceeding assigned or referred to
him/her, to do the following:
(1) Take evidence under appropriate formalities;
(2) Make rulings upon motions and requests;
(3) Determine the time and place of hearing and regulate its course
and conduct;
(4) Adopt rules of procedure and modify the same from time to time as
occasion requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and examine
witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written argument on facts or law;
(8) Hold or provide for the holding of conferences for the settlement
or simplification of the issues by consent of the parties;
(9) Perform such acts and take such measures as are necessary or
appropriate to the efficient conduct of any proceeding; and
(10) Make initial decisions.
22 CFR 18.15 Hearings.
Hearings shall be stenographically recorded and transcribed and the
testimony of witnesses shall be taken under oath or affirmation.
Hearings will be closed unless an open hearing is requested by the
respondent, except that if classified information or protected
information of third parties is likely to be adduced at the hearing, it
will remain closed. If either party to the proceeding fails to appear
at the hearing, after due notice thereof has been sent to him/her,
he/she shall be deemed to have waived the right to a hearing and the
hearing examiner may make a decision against the absent party by
default.
22 CFR 18.16 Evidence.
The rules of evidence prevailing in courts of law and equity are not
controlling in hearings under this part. However, the hearing examiner
shall exclude evidence which is irrelevant, immaterial, or unduly
repetitious.
22 CFR 18.17 Depositions.
Depositions for use at a hearing may, with the consent of the parties
in writing or the written approval of the hearing examiner, be taken by
either the Director General or the respondent or their duly authorized
representatives. Depositions may be taken upon oral or written
interrogatories. There shall be at least 10 days written notice to the
other party. The requirement of a 10-day written notice may be waived
by the parties in writing. When a deposition is taken upon written
interrogatories, any cross-examination shall be upon written
interrogatories. Copies of such written interrogatories shall be served
upon the other party with the notice, and copies of any written
cross-interrogation shall be mailed or delivered to the opposing party
at least 5 days before the date of taking the depositions, unless the
parties mutually agree otherwise. Expenses in the reporting of
depositions shall be borne by the party at whose instance the deposition
is taken.
22 CFR 18.18 Proposed findings and conclusions.
Except in cases where the respondent has failed to answer the
complaint or where a party has failed to appear at the hearing, the
hearing examiner, prior to making his/her decision, shall afford the
parties a reasonable opportunity to submit proposed findings and
conclusions and supporting reasons therefor.
22 CFR 18.19 Decision of the hearing examiner.
As soon as practicable after the conclusion of a hearing and the
receipt of any proposed findings and conclusions timely submitted by the
parties, the hearing examiner shall make the initial decision. The
decision shall include
(a) A statement of findings and conclusions, as well as the reasons
or basis therefor, upon all the material issues of fact, law, or
discretion presented on the record, and
(b) An order of suspension from practice before the Department or
other appropriate disciplinary action, or an order of dismissal of the
complaint. The hearing examiner shall file the decision with the
Director General and shall transmit a copy thereof to the respondent or
his/her attorney of record. A party adversely affected by the decision
shall be given notice of his or her right to appeal to the Board of
Appellate Review (part 7 of this chapter) within 30 days from the date
of the hearing examiner's decision.
22 CFR 18.20 Appeal to the Board of Appellate Review.
Within 30 days from the date of the hearing examiner's decision,
either party may appeal to the Board of Appellate Review. The appeal
shall be taken by filing notice of appeal, in triplicate, with the Board
of Appellate Review, which shall state with particularity exceptions to
the decision of the hearing examiner and reasons for such exceptions.
If an appeal is by the Director General, he/she shall transmit a copy
thereof to the respondent. Within 30 days after receipt of an appeal or
copy thereof, the other party may file a reply brief, in triplicate,
with the Board of Appellate Review. If the reply brief is filed by the
Director General, he/she shall transmit a copy of it to the respondent.
The Director General shall transmit the entire case record to the Board
of Appellate Review within 30 days after an appeal has been taken.
22 CFR 18.21 Decision of the Board of Appellate Review.
The Board of Appellate Review shall decide the appeal on the basis of
the record. The decision of the Board shall be final, and not subject
to further administrative review. Copies of the Board's decision shall
be forwarded promptly to the parties by the Board.
22 CFR 18.22 Notice of disciplinary action.
Upon the issuance of a final order suspending a former officer or
employee from practice before the Department, the Director General shall
give notice thereof to appropriate officers and employees of the
Department. Officers and employees of the Department shall refuse to
participate in any appearance by such former officer or employee or to
accept any communication which constitutes the prohibited practice
before the Department during the period of suspension. The Director
General shall take other appropriate disciplinary action as may be
required by the final order.
22 CFR 18.22 PART 19 -- BENEFITS FOR SPOUSES AND FORMER SPOUSES OF
PARTICIPANTS IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM
Sec.
19.1 Authorities.
19.2 Definitions.
19.3 Participants.
19.4 Special rules for computing creditable service for purposes of
payments to former spouses.
19.5 Required notifications to department respecting spouses and
former spouses.
19.5-1 Notification from participant or annuitant.
19.5-2 Notification to Department from former spouses.
19.5-3 Residence of spouse during service at unhealthful post.
19.6 Court orders and divorce decrees.
19.6-1 Orders by a court.
19.6-2 Qualifying court order.
19.6-3 Application for payment.
19.6-4 Date of Court orders.
19.6-5 Preliminary review.
19.6-6 Notification.
19.6-7 Decision.
19.6-8 Allotment to beneficiary.
19.6-9 Limitations.
19.6-10 Liability.
19.7 Spousal agreements.
19.7-1 Purpose.
19.7-2 Agreement with spouse.
19.7-3 Agreement with former spouse.
19.7-4 Form of agreement.
19.7-5 Limitations.
19.7-6 Duration and precedence of spousal agreements.
19.8 Obligations of members.
19.9 Pension benefits for former spouses.
19.9-1 Entitlement.
19.9-2 Commencement and termination.
19.9-3 Computation and payment of pension to former spouse.
19.9-4 Effect on annuitant.
19.10 Types of annuities to members.
19.10-1 Full annuity.
19.10-2 Reduced annuity with regular survivor annuity to spouse or
former spouse.
19.10-3 Marriage after retirement.
19.10-4 Death or divorce of a spouse and remarriage after retirement.
19.10-5 Reduced annuity with additional survivor annuity to spouse of
former spouse.
19.10-6 Benefits for recall service.
19.11 Survivor benefits.
19.11-1 Kinds of survivor benefits.
19.11-2 Regular survivor annuity for a former spouse.
19.11-3 Regular survivor annuity for a spouse.
19.11-4 Procedure in event a spouse or former spouse is missing.
19.11-5 Commencement, termination and adjustment of annuities.
19.11-6 Death during active duty.
19.11-7 Annuity payable to surviving child or children.
19.11-8 Required elections between survivor benefits.
19.12 Employment in a Government agency.
19.13 Lump-sum payment.
19.13-1 Lump-sum credit.
19.13-2 Share payable to a former spouse.
19.13-3 Payment after death of principal.
19.14 Waiver of annuity.
Authority: Secs. 206 and 801 of Foreign Service Act of 1980 (94
Stat. 2079, 2102); Sec. 4 of Act of May 26, 1949 (22 U.S.C. 2658).
Source: 46 FR 12958, Feb. 19, 1981, unless otherwise noted.
Redesignated at 46 FR 18970, Mar. 27, 1981.
22 CFR 19.1 Authorities.
Chapter 8 of the Foreign Service Act of 1980 (Pub. L. 96-465, 94
Stat. 2102) (hereafter ''the Act''), and any Executive order issued
under authority of section 827 of the Act.
22 CFR 19.2 Definitions.
(a) Agencies means the Department, the Agency for International
Development (AID), the International Communication Agency (USICA), the
Foreign Agricultural Service (FAS), and the Foreign Commercial Service
(FCS).
(b) Annuitant means any person including a former participant or
survivor who meets all requirements for an annuity from the Fund under
the provisions of the Foreign Service Act of 1980, or any other law and
who has filed claim therefor.
(c) Basic salary means the salary fixed by law or administrative
action before deductions and exclusive of additional compensation of any
kind. It includes the salary fixed by sections 401, 402, 403, and 406
of the Act and salary incident to assignment under section 503 of the
Act. Basic salary excludes premium pay for overtime, night, Sunday and
holiday work, allowances, post and special differentials, and charge1
pay.
(d) Chief of Mission means a principal officer in charge of a
diplomatic mission of the United States or of a United States Office
abroad which has been designated diplomatic in nature or any member of
the Foreign Service assigned under the terms of the Act to be charge1
d'affaires or head of such a mission or office.
(e) Child means, except with reference to lump-sum payments, an
unmarried child, under the age of 18 years, or such unmarried child
regardless of age who because of physical or mental disability incurred
before age 18 is incapable of self-support. In addition to the
offspring of the participant, the term includes:
(1) An adopted child;
(2) A stepchild or recognized natural child who received more than
one-half support from the participant; and
(3) A child who lived with and for whom a petition of adoption was
filed by a participant, and who is adopted by the surviving spouse of
the participant after the latter's death. ''Child'' also means an
unmarried student under the age of 22 years. For this purpose, a child
whose twenty-second birthday occurs before July 1 or after August 31 of
a calendar year, and while a student, is deemed to have become 22 years
of age on the first day of July after the birthday.
(f) Court means any court of any State or of the District of
Columbia.
(g) Court Order means any court decree of divorce or annulment, or
any court approved property settlement agreement incident to any court
decree of divorce or annulment.
(h) Department means the Department of State.
(i) Divorce means the dissolution of a marriage by a final decree of
divorce or annulment.
(j) Expressly provided for means a direction by a court order to
divide a member's Foreign Service Retirement benefits or survivor
benefits and awarding a portion of such benefits to an eligible
beneficiary.
(k) Former spouse1 means a former wife or husband of a participant or
former participant who was married to such participant for not less than
ten years during periods of service by that participant which are
creditable under section 816 of the Act provided the participant was
making contributions to the Fund under section 805 of the Act during
some portion of such service, and provided the divorce occurred after
February 15, 1981. For this purpose, a former spouse shall not be
considered as married to a participant for periods assumed to be
creditable under section 808 of the Act in the case of a disability
annuity or section 809 of the Act in the case of a death in service. A
former spouse will be considered married to a participant for any extra
period of creditable service provided under section 817 of the Act for
service at an unhealthful post during which the former spouse resided
with the participant. See 19.5-3 for procedures to determine this
extra period of marriage.
(l) Fund means the Foreign Service Retirement and Disability Fund.
(m) M/MED means the Department's Office of Medical Services.
(n) Military and naval service means honorable active service:
(1) In the Armed Forces of the United States;
(2) In the Regular or Reserve Corps of the Public Health Service
after June 30, 1960; or
(3) As commissioned officer of the National Oceanic and Atmospheric
Administration or predecessor organization after June 30, 1961.
However, this definition does not include service in the National
Guard, except when ordered to active duty in the service of the United
States.
(o) Participant means a person as described in 19.3.
(p) Previous spouse means any person formerly married to a principal,
whether or not such person qualifies as a former spouse under paragraph
(k) of this section.
(q) Principal means a participant or former participant whose service
forms the basis for a benefit under chapter 8 of the Act for a spouse,
previous spouse, former spouse or child of a participant.
(r) PER/ER/RET means the Department's Retirement Division in the
Bureau of Personnel.
(s) Pro Rata Share means, in the case of any former spouse of any
participant or former participant, a percentage which is equal to the
percentage that (1) the number of years and months during which the
former spouse was married to the participant during the creditable
service of that participant is of (2) the total number of years and
months of such creditable service. When making this calculation, item
(1) is adjusted in accordance with paragraph (k) of this section and
item (2) is adjusted in accordance with 19.4. In the total period, 30
days constitutes a month and any period of less than 30 days is not
counted.
(t) Spousal Agreement means any written agreement between a
participant or former participant, and the participant's spouse or
former spouse.
(u) Student means a child regularly pursuing a full-time course of
study or training in residence in a high school, trade school, technical
or vocational institute, junior college, university, or comparable
recognized educational institution. A child who is a student shall not
be deemed to have ceased to be a student during any interim between
school years, semesters, or terms if the interim or other period of
nonattendance does not exceed 5 calendar months and if the child shows
to the satisfaction of the Retirement Division (PER/ER/RET) that the
child has a bona fide intention of continuing to pursue such course
during the school year, semester, or term immediately following the
interim.
(v) Surviving Spouse means the surviving wife or husband of a
participant or annuitant who, in the case of death in service or
marriage after retirement, was married to the participant or annuitant
for at least one year immediately preceding death or is the parent of a
child born of the marriage.
(w) System means the Foreign Service Retirement and Disability
System.
(46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981)
1Note: Section 804(6) of the Act defines ''former spouse'' with
respect to duration of marriage as being married to a participant ''for
not less than 10 years during periods of service by that participant
which are creditable under section 816.'' The Department interprets this
as necessarily implying that the marriage must have covered a period of
at least one day while the member of the Foreign Service was a
participant in the System.
22 CFR 19.3 Participants.
The following persons are participants in the System:
(a) Members of the Service serving under a career appointment or as a
career candidate under section 306 of the Act (1) in the Senior Foreign
Service, or (2) assigned to a salary class in the Foreign Service
Schedule;
(b) Any person not otherwise entitled to be a participant who has
served as chief of mission or an ambassador at large for an aggregate
period of 20 years or more, exclusive of extra service credit for
service at unhealthful posts, and who has paid into the Fund a special
contribution for each year of service;
(c) Any individual who was appointed as a Binational Center Grantee
and who completed, prior to February 15, 1981, at least 5 years of
satisfactory service as a grantee, as determined by the Director of
Personnel of USICA, or under any other appointment under the Foreign
Service Act of 1946, as amended, who has paid into the Fund a special
contribution for such service.
(d) Any person converted to the competitive service pursuant to
section 2104 of the Act who elects to participate in the System pursuant
to section 2106(b)(1) or (2) shall remain a participant so long as
he/she is employed in an agency which is authorized to utilize the
Foreign Service personnel system.
22 CFR 19.4 Special rules for computing creditable service for purposes
of payments to former spouses.
For purposes of determining the pro rata share of annuity, survivor
annuity or lump-sum payable to a former spouse, the following shall be
considered creditable service --
(a) The entire period of a principal's approved leave without pay
during full-time service with an organization composed primarily of
Government employees irrespective of whether the principal elects to
make payments to the Fund for this service;
(b) The entire period of Government service for which a principal
received a refund of retirement contributions which he/she has not
repaid unless the former spouse received under 19.13 a portion of the
(lump-sum) refund or unless a spousal agreement or court order provided
that no portion of the refund be paid to the former spouse; and
(c) All creditable service including service in excess of 35 years;
The period covered by the credit for unused sick leave is not
creditable for this purpose.
22 CFR 19.5 Required notifications to Department respecting spouses and former spouses.
22 CFR 19.5-1 Notification from participant or annuitant.
If a participant or former participant becomes divorced on or after
February 15, 1981, he/she shall notify the Department (PER/ER/RET) of
the divorce on or prior to its effective date. The notice shall include
the effective date of the divorce, the full name, mailing address, and
date of birth of the former spouse and the date of the member's marriage
to that person, and enclose a certified copy of the divorce decree. If
there is a court order or spousal agreement concerning payment or
nonpayment of Foreign Service benefits to the former spouse, the
original or a certified copy of the order or agreement shall also be
forwarded to PER/ER/RET. In the absence of a court order or spousal
agreement providing otherwise, the Department will pay a pro rata share
of the member's benefits to the former spouse. (A former spouse of a
former participant who separated from the Service on or before February
15, 1981 is not eligible for a pension under 19.9, i.e. not eligible
for a pro rata share of the principal's annuity.) Upon receipt of notice
of a divorce, a court order, or spousal agreement, the Department will
proceed as indicated in 19.6 or 19.7. Delinquent notice to the
Department of the divorce of an annuitant will result in retroactive
payments to any qualified former spouse to the extent that the
retroactive payments can be deducted from future annuity payments to the
principal as stated in 19.6-4.
22 CFR 19.5-2 Notification to Department from former spouses.
A former spouse is obligated to notify the Department of the
following on a timely basis:
(a) A divorce from a participant or former participant when the
former spouse is notified by the court of the divorce before the
participant is notified;
(b) Any change in address; and
(c) Any remarriage.
Notices shall be sent to the Department of State, Attention
PER/ER/RET, Washington, D.C. 20520.
22 CFR 19.5-3 Residence of spouse during service at unhealthful post.
(a) The calculation of the pro rata share of benefits for a former
spouse, and the determination of whether a person qualifies as a
''former spouse'' depends on the length of the marriage. The latter,
under the definition in the Act and when the principal has received
extra service credit for an assignment to an unhealthful post, depends
upon whether a spouse has resided with the principal at the unhealthful
post. In order to determine residency for this purpose, whenever a
married participant is assigned to an unhealthful post for which he/she
does not receive post differential and does receive or request extra
service credit, the participant shall report on Form OF-140, Election to
Receive Extra Service Credit Towards Retirement, whether his/her spouse
is or is not residing at the post. Although a chief of mission is not
required to submit Form OF-140 in order to receive extra credit for
service at an unhealthful post, he/she must nevertheless submit this
form if the chief of mission has a spouse that does not accompany
him/her at post for the entire assignment. Both the participant and
spouse shall sign the completed form. If there is a change in residence
of the spouse during the assignment, a new joint Form OF-140 shall be
filed to report the change.
(b) Whenever a participant retires or becomes divorced, or whenever a
former participant becomes divorced who has extra service credit for
assignment at unhealthful posts completed prior to the issuance of this
regulation who was married during at least a portion of the assignment,
the participant or former participant shall submit a statement to
PER/ER/RET reporting on whether his/her spouse resided at the
unhealthful post and the dates of such residence. The statement shall
be signed by the principal and his/her spouse or former spouse whenever
possible.
(c) In the event of a disagreement between a principal and his/her
spouse or former spouse concerning residency at an unhealthful post, or
the submission of a report or statement by a principal showing a period
of nonresidence at a post by a spouse which is not signed by the spouse,
the determination of residence will be made by PER/ER/RET and based on
records in the Department of payments for travel and allowances plus any
other evidence that can be adduced. In the absence of any evidence to
the contrary, the assumption will be made that the spouse resided at the
post.
22 CFR 19.6 Court orders and divorce decrees.
22 CFR 19.6-1 Orders by a court.
(a) A court may --
(1) Fix the amount of any pension to a former spouse under 19.9, or
order that none be paid;
(2) Fix the amount of any regular survivor annuity to a former spouse
under paragraphs (a) and (b) of 19.11, or order that none be paid;
(3) Order provision of an additional survivor annuity for a spouse or
former spouse under 19.10-5;
(4) Fix the amount of any benefit under 19.10-6 based on recall
service payable to a former spouse to whom the annuitant was married
during any portion of the recall service, or order that none be paid;
(5) Fix the amount of any lump-sum payable to a former spouse under
19.13 or order that none be paid;
(6) Order, to the extent consistent with any obligation stated in
19.8 between a participant and a former spouse, and pursuant to any
court decree of divorce, legal separation or annulment or any court
ordered or approved property settlement agreement incident to any court
decree of divorce, legal separation, or annulment, that any payment from
the Fund which would otherwise be made to a former participant based on
his/her service shall be paid (in whole or in part) by the Secretary of
State to a previous spouse or child of such participant. No
apportionment under this paragraph may be made of a payment authorized
to be paid to a survivor of a participant or annuitant.
(b) An order by a court that does not meet the definition of
''court'' in 19.2(f) is not valid for purposes of this section even
though a divorce decree issued by such court may be a basis for pro rata
share payments to a former spouse as described in these regulations.
22 CFR 19.6-2 Qualifying court order.
(a) To be valid for purposes of this section, a court order must be
found to be ''qualified'' by PER/ER/RET acting for the Secretary of
State. A qualifying court order must --
(1) Be consistent with the terms of the Act and applicable
regulations;
(2) Not direct payment of an amount in excess of the maximum amount
authorized to be paid by the relevant regulation;
(3) Direct that payments be made to an eligible beneficiary from a
principal's Foreign Service retirement benefit or survivor benefit. If
a court directs or implies that a principal, rather than the Secretary
of State or the Government, make the payments, the order will not be
considered qualified unless the principal does not object during the
30-day notice period provided under 19.6-6;
(4) Define the amount to be paid to a beneficiary in way so that it
can be readily calculated from information in the normal files of the
Department;
(5) Not make payment contingent upon events other than those on which
other payments from the Fund are based such as age, marital status and
school attendance; and
(6) Not be in conflict with any previously issued court order which
remains valid.
(b) No apportionment of annuity to a beneficiary under 19.6-1(a) (1)
or (6) shall exceed the net annuity of the principal. The net annuity
is computed by excluding from the gross annuity the amounts which are:
(1) Owed by the individual to the United States;
(2) Deducted for health benefits premiums pursuant to section 8906 of
Title 5, United States Code;
(3) Deducted for life insurance premiums under the Government Life
Insurance Program;
(4) Owed due to overpayment of annuity;
(5) Properly withheld for Federal income tax purposes, if amounts
withheld are not greater than they would be if the individual claimed
all dependents to which he/she was entitled.
(46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981)
22 CFR 19.6-3 Application for payment.
(a) To receive payment from the Fund pursuant to a court award, the
beneficiary must submit an application in writing to the Chief of the
Retirement Division (PER/ER/RET), Department of State, Washington, D.C.
20520. The application must be typed or printed, signed by the
beneficiary, and include --
(1) The full name, date of birth, current address and current marital
status of the beneficiary;
(2) Full name and date of birth of the participant or former
participant and his/her date of birth or other identifying information;
(3) Relationship to the beneficiary, and if a spouse or former
spouse, date of marriage to and/or divorce from the participant;
(4) A statement that the court order has not been amended,
superseded, or set aside;
The original of the court order or a recently certified copy must be
enclosed with the application, or a statement appended that such a copy
has been sent to the Department by other means.
(b) When payments are subject to termination upon the occurrence of a
condition subsequent, such as marriage, remarriage or termination of
schooling, or death of the principal, no payment will be made until the
beneficiary submits a statement to PER/ER/RET that --
(1) The condition has not occured;
(2) He/she will notify the Department (PER/ER/RET) within 15 calendar
days of the occurrence of the condition subsequent; and
(3) He/she will be personally liable for any overpayment to him/her
resulting from the occurrence of the condition subsequent. PER/ER/RET
may require periodic recertification of these statements.
22 CFR 19.6-4 Date of court orders.
(a) A court order directing or barring payment of a pension to a
former spouse under 19.9 may not be given effect by the Department if
it is issued more than 12 months after the divorce becomes final. A
court order adjusting the amount of a regular or additional survivor
annuity to a former spouse under 19.11-2 or 19.10-5 may not be given
effect by the Department if it is issued after the death of the
principal.
(b) A court order issued within 12 months after a divorce becomes
final directing payment of a pension to a former spouse in an amount
other than provided in 19.9 may be made retroactively effective to the
first of the month in which the divorce becomes final if so specified by
the court. In such event, the Department will adjust any future
payments that may become due to an annuitant and a former spouse by
increasing one and correspondingly reducing the other in order to give
effect to the order of the court. However, if future payments to one
party are not due, as for example if a court orders that no payments be
made to a former spouse, or that 100 percent of an annuity be paid as
pension to a former spouse, the Department will not give retroactive
effect to a court order by collecting overpayments from one party in
order to pay them to the other party and will not make overpayments from
the Fund.
(c) A court order under this chapter involving any payment other than
a pension to a former spouse under 19.9 may not be given retroactive
effect and shall not be effective until it is determined to be a
qualifying order under 19.6-5.
22 CFR 19.6-5 Preliminary review.
(a) Upon receipt of an application for payment under 19.6-3,
PER/ER/RET will determine whether --
(1) The application is complete;
(2) The applicant is an eligible beneficiary under this chapter; and
(3) The court order is a qualifying order. If the application is
completed, the beneficiary is eligible and the court order appears on
its face to be a qualifying order, PER/ER/RET will provide the
notification required by 19.6-6, otherwise, it will notify the
applicant of any deficiency or requirement for additional information,
and if the order is determined to be non-qualifying, the basis for such
determination.
(b) Upon receipt of a certified copy of a final decree of divorce,
PER/ER/RET will determine whether --
(1) It is a valid decree. Any decree recognized as valid by the
parties will be considered valid for this purpose. In addition, any
non-recognized decree will be considered valid for this purpose unless:
(i) (A) Neither party was domiciled within the court's jurisdiction,
and
(B) The party denying recognition did not participate in the
proceedings, or
(ii) The party denying recognition was not afforded notice of the
proceedings (actual or constructive);
(2) A related court order has been submitted by either party; and
(3) A pro rata share payment is or may become due the former spouse.
If a divorce decree is deemed valid under this paragraph, a pro rata
share payment is due a former spouse unless PER/ER/RET is in receipt of
a court order which it has deemed qualified under paragraph (a) of this
section, or a valid spousal agrement providing otherwise. If it
determines that a pro rata share payment is due, it will provide the
notification required by 19.6-6, otherwise, unless action is being
taken pursuant to a related court order, it will notify both parties to
the divorce the reason a pro rata share payment is not payable.
(46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981)
22 CFR 19.6-6 Notification.
(a) Notification to a principal. Whenever PER/ER/RET receives from a
former spouse or other eligible beneficiary -- (1) a court order which
it deems qualified that requires payment to the beneficiary; or
(2) A final decree of divorce which it deems valid together with a
request for a pro rata share payment -- PER/ER/RET will send a copy of
the document to the principal and a notice stating: (i) That PER/ER/RET
deems the order qualified or the divorce decree valid, (ii) that
payments will be made from the principal's account to the beneficiary
and the effective date of such payments, (iii) the effect of such
payments on the principal's retirement benefit. In the case of any
court order with retroactive or immediate effect, and in the case of pro
rata share payments, the amounts will be withheld from future payments
to the principal but will not be paid to the beneficiary for 30 days
from the notice date in order to give the principal an opportunity to
contest the court order or the validity of the divorce.
PER/ER/RET will provide the former spouse or other beneficiary the
same information, stating the exact amount that will be payable to the
beneficiary and explaining how that amount was calculated.
(b) Notification to a former spouse. When PER/ER/RET receives from a
principal -- (1) a court order which it deems qualified that requires or
forbids payment to a former spouse; or (2) a final decree of divorce
which it deems valid without an accompanying court order -- PER/ER/RET
will send a copy of the document to the former spouse and a notice
stating: (i) That PER/ER/RET deems the court order qualified or the
divorce decree valid, (ii) that PER/ER/RET intends to honor the court
decree or to make pro rata share payments because of the divorce, (iii)
the effective date, exact amount, and method of calculation of any
payments to the former spouse.
PER/ER/RET will provide the same information to the principal and
will explain the effect any payment to a former spouse will have on the
principal's retirement benefit.
22 CFR 19.6-7 Decision.
(a) When a response has not been received by PER/ER/RET from a
principal within the 30-day period under 19.6-6a, payment will be made
in accordance with the notification. When a response is received, the
Chief, PER/ER/RET will consider the response. If it is shown that a
court order is not qualifying or that a divorce is not valid under terms
of the Act and these regulations, payment proposed in the notification
will not be made. In such a case, PER/ER/RET will advise both parties
of the basis for its decision and the alternative action, if any, that
it proposes to take.
(b) If a principal responding to a notification under 19.6-6a
objects to the payment or other action proposed by the Department in the
notification based on the validity of the court order or divorce decree,
and the record contains support for the objection, PER/ER/RET will grant
the principal 30 days to initiate formal legal action to determine the
validity of the objection, will continue to delay payment to the former
spouse or other beneficiary during this period, and will notify the
beneficiary of this action. If evidence is submitted that formal legal
action has been started within the 30-day period, the amount of any
proposed payment to a former spouse or other beneficiary will continue
to be withheld from any payments due the principal, but no payment will
be made to the former spouse or other beneficiary until a judicial
decision is rendered or agreement reached between the parties.
(46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981)
22 CFR 19.6-8 Allotment to beneficiary.
If a court order is not a qualifying court order because it directs
or implies that payment to the beneficiary is to be made by the
principal rather than the Secretary of State, the principal may make an
allotment to the beneficiary from his/her annuity. An annuitant may
also make an allotment from his/her annuity to a previous spouse in the
absence of a court order.
22 CFR 19.6-9 Limitations.
(a) Retirement benefits are subject to apportionment by court order
under 19.6-1(a)(6) only while the principal is living. Payment of
apportioned amounts will be made only to a previous spouse and/or the
children of the principal. Such payments will not be made to any of the
following:
(1) Heirs or legatees of the previous spouse;
(2) Creditors of either the principal or the previous spouse; or
(3) Assignees of either the principal or the previous spouse.
(b) The amount of any court ordered payment may not be less than one
dollar and, in the absence of compelling circumstances, shall be in
whole dollars.
(c) In honoring and complying with a court order, the Department
shall not be required to disrupt the scheduled method of accruing
retirement benefits or the normal timing for making such payments,
despite the existence of any special schedule relating to a previous
spouse or other beneficiary.
(d) In cases where the court order apportions a percentage of the
retirement benefits, PER/ER/RET will initially determine the amount of
proper payment. That amount will only be increased by future
cost-of-living increases unless the court directs otherwise.
22 CFR 19.6-10 Liability.
(a) The Department shall not be liable for any payment made from
retirement benefits pursuant to a court order if such payment is made in
accordance with the provisions of this chapter.
(b) In the event that the Secretary is served with more than one
court order with respect to the same retirement benefits, the benefits
shall be available to satisfy the court orders on a first-come,
first-served basis.
(c) A previous spouse or other beneficiary may request that an amount
be withheld from the retirement benefits of a principal or survivor of a
principal which is less than the amount stipulated in a court order, or
otherwise scheduled to be paid to the beneficiary under this chapter.
This lower amount will be deemed a complete fulfillment of the
obligation of the Department for the period in which the request is in
effect. See 19.14.
22 CFR 19.7 Spousal agreements.
22 CFR 19.7-1 Purpose.
A spousal agreement may be used by both parties to establish an
agreed-upon level of benefits to a spouse or a former spouse and to
relieve the participant of responsibility for providing a higher level
of benefits.
22 CFR 19.7-2 Agreement with spouse.
(a) A spousal agreement between a participant and a spouse may waive
or fix the level of a regular survivor annuity under 19.11-3. If an
agreement is filed, it will assure the spouse that the agreed-upon level
of survivor annuity will be paid, irrespective of a future divorce
provided the survivor meets the definition of ''former spouse'' in
19.2(k). If an agreement is not filed, the participant's annuity will be
reduced under 19.10-2 to provide the maximum regular survivor annuity
for the spouse, but in the event of a future divorce if the spouse meets
the definition of ''former spouse,'' that person will be entitled only
to a pro rata share of the survivor annuity. An agreement under this
paragraph may be filed with PER/ER/RET at any time prior to retirement
(commencement of the principal's annuity).
(b) A spousal agreement between an annuitant and a spouse filed with
PER/ER/RET before commencement of a supplemental annuity for recall
service may waive a supplemental survivor annuity that would otherwise
be provided for a spouse under 19.10-6.
(c) A spousal agreement between a participant or former participant
and a spouse may be filed with PER/ER/RET at any time in accordance with
19.10-5 and provide for an additional survivor annuity for the spouse.
(d) A spousal agreement filed under paragraph (a), (b), or (c)
remains valid and binding in the event of divorce if the spouse
qualifies as a former spouse.
22 CFR 19.7-3 Agreement with former spouse.
(a) A spousal agreement between a participant or former participant
and a former spouse may waive, reduce or increase the following benefits
for a former spouse;
(1) A pension under 19.9;
(2) A regular survivor annuity under 19.11-2;
(3) A supplemental survivor annuity under 19.10-6;
(4) A lump sum payment for regular or recall service under 19.13.
A spousal agreement shall also be used by a participant or former
participant who has a former spouse on February 15, 1981, to elect a
regular survivor annuity for such former spouse in accordance with
19.11-2(e). An agreement to establish or increase any benefit for a
former spouse entered into while the principal is married to someone
else, must be signed and agreed to by both the spouse and the former
spouse. An agreement affecting pension benefits may be filed at any
time and will govern payments made after its acceptance by PER/ER/RET.
An agreement affecting a regular survivor annuity must be filed before
the end of the 12-month period after the divorce involving that former
spouse or at the time of retirement, whichever occurs first, except as
authorized in 19.11-2(b) for persons retired on February 15, 1981, or
in 19.11-2(e) with respect to persons who were former spouses on
February 15, 1981. This filing requirement stated in the Act makes it
impossible to adjust, other than by court order, a regular survivor
annuity for a former spouse when the divorce occurs after a retirement
which occurs on or after February 15, 1981. The survivor annuity for
the former spouse in such case is fixed by any spousal agreement entered
into prior to the divorce, by 19.11-2 or by court order. An agreement
affecting supplemental survivor benefits or lump-sum payments must be
filed before the supplemental annuity of the principal begins or
lump-sum payment is made.
(b) A spousal agreement between a participant or former participant
and a former spouse may be filed with PER/ER/RET at any time in
accordance with 19.10-5 to provide an additional survivor annuity for
the former spouse.
22 CFR 19.7-4 Form of agreement.
(a) A spousal agreement is any legal agreement between the parties
accepted by PER/ER/RET as meeting the requirements of this section. If
in accordance with the regulations, PER/ER/RET will accept as a valid
spousal agreement a property settlement agreed to by the parties and
approved by a court regardless of the date of the agreement.
(b) A spousal agreement must either be authenticated by a court or
notarized.
22 CFR 19.7-5 Limitations.
(a) A spousal agreement may not provide for any payment from the Fund
in excess of the amount otherwise authorized to be paid, or at a time
not authorized by these regulations, or to a person other than a spouse
or former spouse.
(b) A spousal agreement must be filed with the Department, Attention
PER/ER/RET, and accepted by that office as in conformance with the Act
and these regulations prior to the times specified in 19.7-2 and
19.7-3. That office will provide advice to the parties on the validity
of any proposed agreement and on proper format.
(c) A spousal agreement may apply only to payments from the Fund for
periods after receipt of a valid agreement by the Department.
(d) Paragraphs (b), (c) and (d) of 19.6-9 and 19.6-10 apply to
spousal agreements and payments made pursuant to spousal agreements to
the same extent that they apply to court orders and court ordered
payments.
22 CFR 19.7-6 Duration and precedence of spousal agreements.
(a) A spousal agreement may be revised or voided by agreement of the
parties (by filing a new agreement under this section) at any time prior
to the last day for filing an agreement determined in accordance with
19.7-2 or 19.7-3, except spousal agreements for additional survivor
annuities are irrevocable. After the last day for filing a particular
agreement, such agreement is irrevocable.
(b) A valid spousal agreement entered into subsequent to the issuance
of a court order affecting the same parties will override the court
order, and shall govern payments from the Fund.
(c) A spousal agreement may not override a previous spousal agreement
involving the same principal but a different spouse or former spouse
without agreement of such spouse or former spouse.
22 CFR 19.8 Obligations of members.
Participants and former participants are obligated by the Act and
these regulations to provide the following benefits to others and must
accept the necessary reductions in their own retirement benefits to meet
these obligations:
(a) A pension to a former spouse pursuant to 19.9;
(b) A court ordered apportionment of annuity to a previous spouse or
child under 19.6-1 (a)(6) (the benefit to a child referred to here is
paid during the annuitant's lifetime as distinguished from the automatic
survivorship annuity to a child described in 19.11-7);
(c) A regular survivor annuity to a former spouse who has not
remarried prior to age 60, and to a spouse to whom married when annuity
commences, pursuant to 19.11-2 and 19.11-3;
(d) An additional survivor annuity for a spouse or former spouse
under 19.10-5 when elected by the participant or ordered by a court;
(e) Lump-sum payments to a former spouse pursuant to 19.13;
(f) Benefits ordered by a court under 19.6 or specified in a spousal
agreement under 19.7.
22 CFR 19.9 Pension benefits for former spouses.
22 CFR 19.9-1 Entitlement.
(a) Unless otherwise expressly provided by a spousal agreement under
19.7 or a court order under 19.6, a person who, after February 15,
1981, becomes a former spouse of a participant (or former participant
who separated from the Service after February 15, 1981) and who has not
remarried prior to becoming 60 years of age, becomes entitled to a
monthly pension benefit effective on a date determined under 19.9-2 in
an amount determined under 19.9-3.
(b) A former spouse shall not be qualified for a pension under this
subsection if, before the commencement of that pension, the former
spouse remarries before becoming 60 years of age.
(c) A pension benefit under this section is treated the same as a
survivor annuity for purposes of 19.11-5(b): a former spouse who
elects to receive a pension under this section must waive simultaneous
receipt of any survivor annuity.
(46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981)
22 CFR 19.9-2 Commencement and termination.
(a) The pension of a former spouse under this subsection commences on
the latter of the day the principal becomes entitled to a Foreign
Service annuity or on the first day of the month in which the divorce
becomes final. (Suspension or reduction of a Foreign Service annuity
because or reemployment does not affect the commencement of a pension to
a former spouse.) In the case of any former spouse of a disability
annuitant, the pension of such former spouse shall commence on the
latter of:
(1) The date the principal would qualify for an annuity (other than a
disability annuity) on the basis of his/her creditable service;
(2) The date the disability annuity begins; or
(3) The first of the month in which the divorce becomes final.
(b) The pension of a former spouse and the right thereto terminate
on:
(1) The last day of the month before the former spouse dies or
remarries before 60 years of age; or
(2) The date the annuity of the former participant terminates unless
the termination results from recall, reappointment or reinstatement in
the Foreign Service or reemployment in Government service.
22 CFR 19.9-3 Computation and payment of pension to former spouse.
(a) A pension to a former spouse is paid monthly on the same date
that annuity is paid to the principal.
(b) No spousal agreement or court order may provide for a pension or
any combination of pensions to former spouses of any one principal which
exceeds the net annuity of the principal as defined in 19.6-2(b).
(c) A pension to a former spouse not fixed by a spousal agreement or
court order shall equal the former spouse's pro rata share of 50 percent
of the annuity to which the principal is entitled on the date the
divorce becomes final, or, if not then entitled to an annuity, 50
percent of the annuity to which the principal first becomes entitled
following that date. A pension to a former spouse of a disability
annuitant shall be calculated on the basis of an annuity for which the
participant would qualify if not disabled. A pension to a former spouse
will be increased by the same percentage of each cost-of-living
adjustment received by the principal.
(d) The Department will initiate payment of a pension to a former
spouse after complying with the notification and other procedures
described in 19.6.
(e) If a pension can not be paid because a former spouse is missing,
the principal may file an affidavit with PER/ER/RET that he/she does not
know the whereabouts of the former spouse. In such an event, the
principal and the Department will follow the procedures in 19.11-4 in
an effort to locate the former spouse. The annuity of the principal
will be reduced by the amount of the pension to the former spouse even
though the latter is not being paid. If the former spouse has not been
located during the 12-month period following the date the principal
files an affidavit under this section, the annuity of the principal will
be recomputed effective from its commencing date (or on the date
following the last month a pension payment was made to the former
spouse) and paid without reduction of the amount of pension to the
former spouse. If the former spouse subsequently is located, pension
payments to him/her will be initiated at that time at the rate that
would have been payable had they been paid continuously from the
original effective date. The Department shall not be liable to make any
pension payments to the former spouse for the missing period if the
procedures under this section were faithfully complied with nor will the
Department be responsible for recovering any payments made to the
principal for the benefit of the former spouse.
22 CFR 19.9-4 Effect on annuitant.
Any pension payable to a former spouse under this section or pursuant
to any spousal agreement or court order shall be deducted from the
annuity of the principal. (See 19.6-4 concerning retroactive
adjustments.) If the annuity of such a principal in any month is
discontinued or reduced so that the net amount payable is less than the
pension to the former spouse or spouses of the principal because of
recall, reappointment or reinstatment in the Foreign Service or
reemployment in the Government service, the principal's salary, rather
than annuity, shall be reduced by the amount of the pension payment(s).
Such salary reductions shall be deposited in the Treasury to the credit
of the Fund. If a pension to a former spouse is discontinued for any
reason except a suspension pending a determination of entitlement, the
annuity of the principal shall be recomputed effective as of the date of
discontinuance of the pension, and paid as if the pension to the former
spouse had never been deducted.
22 CFR 19.10 Types of annuities to members.
22 CFR 19.10-1 Full annuity.
If a participant retires and does not provide a survivor annuity to a
spouse, former spouse or designated beneficiary, the participant
receives a ''full'' annuity. A full annuity means an annuity computed
without any survivorship reduction. Example: Average salary $20,000
and maximum of 35 years of service.
22 CFR 19.10-2 Reduced annuity with regular survivor annuity to spouse
or former spouse.
(a) At commencement of annuity, a participant or former participant
may provide a regular survivor annuity for any eligible former spouse
and, within the limits of paragraph (b) of this section, a regular
survivor annuity to any spouse to whom he/she is then married as
described in 19.11-2 and 19.11-3, respectively. A regular survivor
annuity for a spouse or former spouse equals 55 percent of the portion
of the retiree's annuity (up to the full amount) designated as the base
for the survivor annuity. To provide the survivor annuity, the
participant must accept a reduction in his/her full annuity equal to 2
1/2 percent of the first $3,600 of the designated base, plus 10 percent
of the balance of the base. If a regular survivor annuity is being
provided for both a spouse and a former spouse, the bases for each are
added and the calculation made as in the following example:
Participant's full annuity as computed in 19.10-1: $14,000.
Maximum regular survivor annuity is 55 percent of full annuity:
$7,700.
Case I (Participant has a spouse and former spouse at retirement) If
the pro rata share for a former spouse is 75 percent, the base for this
benefit will be 75 percent of $14,000: $10,500.
The base for the maximum regular survivor annuity for a spouse would
then be 25 percent of $14,000, or $3,500.
Combined base: $14,000.
Participant's full annuity reduced as follows:
2 1/2 percent of first $3,600 of the base: $90.
Plus 10 percent of the amount over $3,600 ($14,000-3,600) $10,400:
$1,040.
Total reduction in participant's full annuity: $1,130.
Participant's reduced annuity: $12,870.
Survivor annuity for former spouse: 55 percent of $10,500 or $5,775.
Survivor annuity for spouse: 55 percent of $3,500 or $1,925.
Case II (Participant married at retirement with no former spouse.
All calculations made without reference to cost-of-living increases
described in 19.11-5d.)
Joint election of base for regular survivor annuity of 90 percent of
the maximum, or 90 percent of $14,000: $12,600.
Participant's full annuity reduced as follows:
2 1/2 percent of first $3,600 of the base: $90.
Plus 10 percent of the amount over $3,600 ($12,600-3,600) $9,000:
$900.
Total reduction in participant's full annuity: $990.
Participant's reduced annuity: $13,010.
In this example, if divorce occurs subsequent to retirement and a
court orders a 75 percent share for the former spouse, the base for the
survivor annuity for the former spouse would be 75 percent of $14,000:
$10,500.
The participant's full annuity would then be reduced by $780 in
accordance with the above formula for this survivor benefit, and the
reduced annuity would be $14,000-780: $13,220.
If the former spouse qualifies for a pension as described in 19.9
based on a pro rata share of 75 percent, the pension would equal 50
percent of the participant's reduced annuity times 75 percent (50%
$13,220 75%): 4,957.50.
The participant's reduced annuity would then be further reduced by
this pension ($13,220-$4,957.50) to provide an annuity to the former
participant of $8,262.50.
If this annuitant later remarried, the maximum base for the regular
survivor annuity for the new spouse would be the amount designated at
retirement, $12,600, less the amount committed to the former spouse,
$10,500: $12,600-10,500 or $2,100.
The survivor annuity for this spouse: 55 percent of $2,100 or
$1,555.
The election of this benefit for the new spouse would be made
individually by the annuitant since a marriage after retirement does not
give a spouse a right to participate in the election.
If the election is made to provide a regular survivor annuity to the
new spouse, all of the above calculations would be recomputed effective
the first day of the month beginning one year after the date of the
remarriage, as follows:
Base for survivor annuity for former spouse: 75% of $14,000 or
$10,500.
Survivor annuity for former spouse: 55% of $10,500 or $5,775.
Base for survivor annuity for spouse: 15% of $14,000 or $2,100.
Survivor annuity for spouse: 55% of $2,100 or $1,555.
The combined base for the survivor benefits is $10,500 plus $2,100 or
$12,600. The annuity reduction on this combined base as computed above
is $990.
The participant's annuity after reduction for survivor benefit would
be $14,000-$990 or $13,010.
The pension for the former spouse would be 50% $13,010 75% or
$4,878.75.
The participant's annuity would be further reduced by this amount:
$13,010-$4,878.75 to provide an annuity after this recalculation of
$8,131.25.
(b) The maximum regular survivor annuity or combination of regular
survivor annuities that may be provided under this section is limited to
55% of the principal's full annuity computed at retirement. If an
annuitant is recalled to active duty in the Foreign Service, he/she may
provide additional regular survivor annuities under 19.10-6. The
maximum regular survivor annuity or combination of regular survivor
annuities that an annuitant who was married at retirement may elect or
provide, pursuant to a court order or otherwise, after retirement in the
event of his/her divorce or remarriage, is limited to the amount
provided at the time of initial retirement or reversion to retired
status following recall service.
22 CFR 19.10-3 Marriage after retirement.
If an annuitant who was unmarried at the time of retirement, marries,
he/she may within one year after such marriage irrevocably elect to
receive a reduced annuity and to provide, subject to any obligation to
provide a survivor annuity for a former spouse, a survivor annuity for
the new spouse. If such an election is made, the principal's annuity
shall be reduced in accordance with 19.10-2 effective on the first day
of the first month which begins at least one year after the date of the
marriage. The reduction is computed on the commencing rate of the
principal's annuity.
22 CFR 19.10-4 Death or divorce of a spouse and remarriage after
retirement.
(a) If the marriage of an annuitant who received a reduced annuity at
retirement under 19.10-2 to provide a survivor annuity for a spouse is
dissolved by divorce or by death of the spouse, the retiree's annuity
shall be recomputed, if necessary, as of the first of the month
following the death or divorce. If the marriage was dissolved by death,
the annuity shall be recomputed and paid at its full amount. If the
marriage is dissolved by divorce, procedures in 19.11-2(b) shall be
followed.
(b) In the event an annuitant affected by this paragraph remarries,
the annuitant may elect within one year of remarriage to provide a
survivor annuity for the new spouse equal in amount to the survivor
benefit formerly in effect for the previous spouse less any amount
committed for a former spouse. The annuity of a retiree making such an
election shall be reduced effective on the first day of the first month
which begins at least one year after the remarriage to the amount that
would have been payable had there been no recomputation under paragraph
(a) of this section.
22 CFR 19.10-5 Reduced annuity with additional survivor annuity to
spouse or former spouse.
(a) General. This section provides an opportunity for a participant
or former participant who has provided a regular survivor annuity to a
former spouse to provide a survivor annuity to a second spouse or to
another former spouse. The additional survivor annuity provided under
this section generally is more costly than the regular survivor annuity
because the participant is required to pay it's full cost by deduction
from salary or annuity, or otherwise, as specified in paragraph (e) of
this section. The participant must also be in normal health for his/her
age and pass a physical examination prescribed by the Secretary of State
(M/MED) to be eligible to provide an additional survivor annuity under
this section.
(b) Limitation on amount. Neither the total amount of additional
survivor annuity or annuities under this section provided by any
participant or former participant nor any combination of regular or
additional survivor annuities for any one surviving spouse or former
spouse of a principal may exceed 55 percent of the principal's full
annuity counting any supplemental annuity or recomputation of annuity
because of recall service. An additional survivor annuity provided by
any principal shall be further limited to the amount that can be
provided by a monthly payment which is not greater than the principal's
net annuity described in 19.6-2(b). The amount of any additional
survivor annuity provided by a spousal agreement effective prior to the
principal's retirement, shall be reduced as necessary by PER/ER/RET
after the principal's retirement to comply with this limitation. Any
amount paid by a participant for the portion of additional survivor
annuity cancelled pursuant to this paragraph shall be treated as an
additional lump sum payment under paragraph (e) of this section and used
to increase the amount of the additional annuity. A participant who
separates from the Service without entitlement to any annuity is not
entitled to provide an additional survivor annuity. Payments in such a
case would be discontinued as described in paragraph (e) of this
section.
(c) Procedures to grant additional survivor annuity. A participant
or former participant who has provided a regular survivor annuity to a
former spouse who wishes to provide, or who is ordered by a court to
provide an additional survivor annuity under this section to a spouse or
another former spouse, shall do so by filing a spousal agreement with
PER/ER/RET on a form acceptable to PER/ER/RET. Such an agreement will
be irrevocable when accepted by PER/ER/RET unless the beneficiary of the
additional survivor annuity is subsequently made a beneficiary of a
regular survivor annuity in equal amount. Within the limitations
specified in paragraph (b) of this section, an individual may be made
the beneficiary of both a regular and an additional survivor annuity. A
spousal agreement granting an additional survivor annuity to a spouse
will remain valid in the event the marriage is dissolved and the spouse
qualifies as a former spouse under the definition 19.2(k).
(d) Eligibility for additional survivor annuity. A spouse or former
spouse must meet the same criteria ( 19.2(v) or 19.2(k)) to be eligible
for an additional survivor annuity as a spouse or former spouse must
meet to be eligible for a regular survivor annuity. Payment of a
special survivor annuity will commence on the day after the participant
dies and shall terminate on the last day of the month before death or
remarriage before attaining age 60. If it is discontinued because of
remarriage, it will not be resumed.
(e) Payment for additional survivor annuity. (1) Payment for an
additional survivor annuity will commence on the first of the month
following the effective date of a spousal agreement provising the
additional survivor annuity. The effective date will be the date of
acceptance of the spousal agreement by PER/ER-RET (upon a finding that
the agreement conforms to the law and regulations) or such later date as
may be specified in the agreement. No payment will be made to a
beneficiary under the agreement if the principal dies before its
effective date. Accordingly, in order to give protection to a
beneficiary during active service, the agreement must be made effective,
and payment commence, during active service. Payment will be made by a
participant or annuitant by deduction from salary or annuity. Payment
will be made by a former participant while awaiting commencement of a
deferred annuity by direct payment to the Department, Office of
Financial Operations (M/COMP/FO). Payments not received by the due date
may, at the option of M/COMP/FO and with notice to the principal and the
beneficiary be collected from the principal's lump-sum account. Amounts
so collected must be repaid by the principal with interest compounded at
10 percent annually to prevent exhaustion of the lump-sum account. If
the lump-sum account does become exhausted, any rights to the lump-sum
payment under 19.13 and survivorship rights under this paragraph will
expire on that date. If the principal dies with an amount owing, it
shall be collected by set off from the survivor annuity or lump-sum
account.
(2) Monthly payments may be reduced or eliminated by direct payment
to M/COMP/FO by any participant or former participant under terms
mutually agreed upon by the participant and PER/ER/RET. Minimum monthly
payments will be based upon actuarial tables prescribed from time to
time by the Director General of the Foreign Service (M/DGP) with the
advice of the Secretary of Treasury. Such tables will be calculated so
that the present value of all payments equal the present value of the
survivor annuity. If new tables are prescribed, they would be
applicable to additional survivor annuities provided by spousal
agreements that become effective on or after the effective date of the
new tables. Additional survivor annuities will be increased by regular
cost-of-living adjustments from their commencing dates only when so
specified at the option of the participant or former participant in a
spousal agreement. Monthly payments will be higher if cost-of-living
adjustments are provided.
(3) In the event of the disqualification of a beneficiary for an
additional survivor annuity because of death, remarriage prior to age 60
or divorce from the principal and failure to meet the definition of
''former spouse,'' or in the event of an authorized reduction or
cancellation of an election for an additional survivor annuity, the
monthly payment for such discontinued or reduced additional survivor
annuity will be discontinued or reduced, as appropriate, effective at
the beginning of the first month following termination or reduction of
the benefit. Except as otherwise specified in paragraph (b) of this
section, any amount paid for such discontinued or reduced benefit by a
participant or former participant in excess of the minimum monthly
payments described above shall be refunded to the participant or former
participant with interest calculated at the annual rate used in the last
evaluation of the System or at such higher rate as may be authorized by
M/COMP/FO as will not cause a loss to the Fund. The following table
illustrates the minimum monthly payments schedule in effect February 15,
1981.
(4) Reduction from annuity to a principal to pay for an additional
survivor annuity will be in the nature of an allotment and will not
affect computations of cost-of-living adjustments to the principal.
22 CFR 19.10-6 Benefits for recall service.
(a) Annuity of recalled participant. Any participant who is recalled
to the Service under section 308 of the Act, shall, while serving, be
entitled in lieu of annuity to the full salary of the class in which
serving. During such service, the recalled annuitant shall make
contributions to the Fund under section 805(a) of the Act. If a share
of the annuity is being paid as a pension to a former spouse under
19.9, that share shall be deducted from the salary of the recalled
annuitant during the period of the recall service. Upon reversion of
the annuitant to retired status, any pension payable to a former spouse
that was being deducted from the salary of the principal shall again be
deducted from the annuity of the principal which shall be determined as
follows:
(1) If the recall service lasts less than one year, a refund of
retirement contributions made during the recall period will be refunded
under 19.13 and the former annuity will be resumed at the previous rate
adjusted by any cost-of-living increases that became effective during
recall service.
(2) If the recall service lasts between one and five years, the
annuitant will be entitled to elect benefits under paragraph (a)(1) of
this section or receive both the former annuity adjusted by
cost-of-living increases and a supplemental annuity computed under
19.10 on the basis of service credit and average salary earned during
the recall period, irrespective of the number of years of service credit
previously earned.
(3) If the recall service lasts five years or more, the annuitant
will be entitled to recomputation of the annuity as if there had been no
previous retirement, or elect benefits under paragraph (a) (1) or (2) of
this section.
(4) An annuitant may receive credit in any computation under
paragraph (a) (2) or (3) of this section for any Federal service
performed subsequent to the separation upon which the original annuity
was computed provided a special contribution is made for such service
under section 805 of the Act.
(5) An annuitant entitled to a supplemental annuity under paragraph
(a)(3) of this section or a recomputated annuity under paragraph (a)(4)
of this section is obligated, in the absence of a court order or spousal
agreement to the contrary, to have those annuities reduced to provide
the benefits described in 19.8 to any spouse or former spouse to whom
married during any portion of the recall service. An annuitant must
accept a reduction of 10 percent of his/her supplemental annuity in
order to provide a supplemental survivor annuity to a spouse or former
spouse. The maximum supplemental survivor annuity equals 55 percent of
the supplemental annuity. If, upon reversion to retired status, an
annuitant has a former spouse entitled to a pro rata share or some other
share of the supplemental survivor annuity, but no spouse, the
appropriate share of the supplemental annuity shall be reduced by 10
percent to provide such former spouse a share of the maximum
supplemental survivor annuity.
(b) Survivor benefit for death during recall service. (1) If an
annuitant entitled to a reduced annuity under 19.10-2 dies in service
after being recalled and is survived by a spouse or former spouse
entitled to a survivor annuity based on the service of such annuitant,
such survivor annuity shall be computed as if the recall service had
otherwise terminated on the day of death and the annuity of the deceased
had been resumed in accordance with paragraph (a) of this section. If
such death occurs after the annuitant had completed sufficient recall
service to attain eligibility for a supplemental annuity, a surviving
spouse or surviving former spouse who was married to the participant at
any time during a period of recall service shall be entitled to elect,
in addition to any other benefits and in lieu of a refund of retirement
contributions made during the recall service, a supplemental survivor
annuity computed and paid under 19.10-6a(5) as if the recall service
had otherwise terminated. If the annuitant had completed sufficient
recall service to attain eligibility to have his/her annuity determined
anew, a surviving spouse or such a surviving former spouse may elect, in
lieu of any other survivor benefit under 19.11, to have the rights of
the annuitant redetermined and to receive a survivor annuity computed
under 19.11-2 or 19.11-3 on the basis of the total service of the
annuitant. In the event such an annuitant is survived both by a spouse
and such a former spouse, the former spouse will be entitled to a pro
rata share of any refund or supplemental survivor benefit under this
section computed on the basis of total service during the recall period
and months of marriage during such period. If the surviving spouse and
surviving former spouse elect different benefits under this paragraph,
the former spouse will receive the pro rata share of the benefit he/she
elects and the spouse will receive the reciprocal share of the benefit
he/she elects.
(2) In the event an annuitant dies during recall service and is
survived by a former spouse to whom not married during any period of the
recall service, such former spouse will not be entitled to any benefits
based on the recall service.
19.11 Survivor benefits.
22 CFR 19.11-1 Kinds of survivor benefits.
If a participant or former participant dies in active service or
after retirement, regular survivor annuities are payable under terms of
this section to an eligible surviving spouse, former spouse or child.
Also, if all rights to annuity and survivor annuity terminate prior to
exhaustion of the participant's lump-sum credit, a lump-sum payment is
made pursuant to 19.13. In addition to the above, an additional
survivor annuity, and a supplemental survivor annuity may be payable to
an eligible survivor under 19.10-5 and 19.10-6, respectively. If any
participant or former participant makes an election, files a spousal
agreement or becomes subject to a court order to provide a regular
survivor annuity for a spouse or former spouse and does not subsequently
become entitled to leave a survivor annuity under these regulations
(because of separation from the Service and withdrawal of contributions,
death after separation but before commencement of a deferred annuity, or
for any other reason), none will be paid and such election, spousal
agreement or court order to provide such survivor annuity will have no
force or effect.
22 CFR 19.11-2 Regular survivor annuity for a former spouse.
(a) Divorce prior to retirement. If a participant or former
participant is divorced prior to commencement of annuity, any former
spouse shall be entitled to a pro rata share of such a principal's
maximum regular survivor annuity (based on service performed prior to
the first date the principal becomes eligible for an annuity following
the divorce) unless a different amount is elected in a spousal agreement
filed with PER/ER/RET within 12 months after the divorce becomes final
or at the time of the retirement, whichever occurs first, or unless a
different amount is specified by a court prior to the death of the
principal. The principal's annuity shall be reduced at the commencing
date under 19.10-2 in order to provide the survivor annuity committed
to the former spouse.
(b) Divorce after retirement. In the event an annuitant is divorced
after retirement (commencement of annuity), the maximum survivor annuity
that may be provided for that former spouse is limited to the amount
provided for that person at the time of retirement. Within that limit,
the former spouse is entitled to a pro rata share of the participant's
maximum survivor benefit (based on service performed prior to the
divorce) unless a different amount was elected in a spousal agreement
filed with PER/ER/RET at the time of retirement, or in the case of
retirement before February 15, 1981, filed with PER/ER/RET within 12
months after the divorce becomes final, or unless a different amount is
specified by a court prior to the death of the principal. For this
purpose, a joint election filed with PER/ER/RET at the time of
retirement is considered a spousal agreement. If the survivor annuity
for the former spouse is reduced at the time of the divorce (because the
pro rata share or the amount specified in a spousal agreement or court
order is less than the amount elected at retirement), the principal's
annuity shall be recomputed and paid, effective on the date the survivor
benefit is reduced, as if the lower amount had been elected at the
outset of retirement.
(c) Death or remarriage of former spouse and transfer of survivor
benefit to a spouse. Remarriage below age 60 or death of a former
spouse while a principal is alive will disqualify the former spouse for
benefits under this section. In the event of such a remarriage or death
of a former spouse, the portion of a principal's survivor annuity
committed to that person will become available for transfer to any
spouse. If such a remarriage or death of the former spouse occurs after
the principal's annuity commences, any reduction in the principal's
annuity for that former spouse will be discontinued effective at the
beginning of the first month following the remarriage or death unless
the annuitant elects to provide or to increase a survivor benefit for a
spouse. Such an election may be made within one year after the
annuitant receives notice of the remarriage or death of his/her former
spouse. The Department (PER/ER/RET) and the annuitant shall each notify
the other promptly whenever either receives independent notice of such a
remarriage or death. If an election to transfer survivor benefits to a
spouse is not made by the annuitant, his/her annuity will be recomputed
and paid as if there had been no reduction for the discontinued survivor
benefit. If an annuity is so recomputed and an election is subsequently
made to designate as beneficiary a spouse to whom married for at least
one year at the time the election is made, the principal's annuity shall
be restored retroactively to its former, lower rate and then adjusted by
cost-of-living increases that have occured since the date of the first
recomputation. If an election is made for a spouse when the marriage
has not yet lasted a year, the procedures in 19.10-4 shall be followed.
(d) Amount of survivor annuity. The amount of a regular survivor
annuity is determined under 19.11-3(c).
(e) Special rules for election of survivor annuity for a person who
is a former spouse on February 15, 1981. (1) Any participant, or former
participant eligible for a deferred annuity which has not yet commenced,
who, on February 15, 1981 has a former spouse, may at any time prior to
commencement of annuity, elect, with the consent of any spouse to whom
married at the time of the election, to receive a reduced annuity and
provide a regular survivor annuity for such former spouse. Such
survivor annuity shall be limited by 19.10-2(b). An election under this
paragraph for a former spouse will reduce the amount of any regular
survivor annuity that may subsequently be provided for any spouse or
other former spouse.
(2) Any former participant in receipt of an annuity who has a former
spouse on February 15, 1981 and who has not committed his/her entire
annuity as a base for a regular survivor annuity for a spouse or any
other former spouse, may, prior to December 31, 1982, designate any
portion of the uncommitted base as the base for a regular survivor
annuity for such former spouse.
(3) The annuity of a former participant making an election under this
paragraph shall be reduced under 19.10-2(a) effective February 15,
1981, or from its commencing date if later.
(4) An election under this paragraph shall be made by filing a
spousal agreement with PER/ER/RET under 19.7. A spousal agreement to
provide a regular survivor annuity under this paragraph for a former
spouse may be revoked or amended after its acceptance by PER/ER/RET as
in accordance with the Act and these regulations, only by agreement of
the parties up to the last day allowed by this paragraph for filing such
an agreement. Thereafter, it is irrevocable. If a participant dies in
service after having filed a valid election under this section, a
survivor annuity will be paid to an eligible former suriving spouse in
accordance with the terms of the election.
22 CFR 19.11-3 Regular survivor annuity for a spouse.
(a) In the absence of a joint election or a spousal agreement to the
contrary, a participant or former participant who is separated from
active service on or after February 15, 1981 who is married at the
commencement of his/her annuity shall provide a regular survivor annuity
for a spouse under 19.10-2 equal to the maximum amount that remains
available under limitations stated in paragraph (b) of that section
after allowing for any commitment of a regular survivor annuity for a
former spouse who has not remarried prior to age 60 and who is alive on
the date the former participant becomes eligible for an annuity.
(b) A regular survivor annuity is also payable to a surviving spouse
for whom a principal elected an annuity under 19.10-3, 19.10-4, or
19.11-2(c) following a marriage after comencement of his/her annuity.
(c) The amount of a regular survivor annuity equals 55 percent of the
base designated for the benefit at the time the principal's annuity
commenced, adjusted by the total percentage of cost-of-living increases
the principal was receiving at death.
(d) A survivor annuity is payable to a surviving spouse only if that
person was married to the principal at the time of his/her death or if
the spouse became a former spouse under the definition in 19.2(k).
(46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981)
22 CFR 19.11-4 Procedure in event a spouse or former spouse is missing.
If a participant or former participant has a spouse or former spouse
whose whereabouts are unknown, such participant may elect to reduce or
eliminate the share of a regular survivor annuity provided for that
person under 19.11-2 or 19.11-3 by filing an affidavit with PER/ER/RET
stating that his/her spouse or former spouse is missing and giving full
name, last known address, date last heard from, circumstances of the
disappearance and a description of the effort that has been made to
locate the individual. Thereafter, the participant shall take such
additional steps to locate the missing person as may be directed by
PER/ER/RET. That Office shall also attempt to locate the missing person
by sending a letter to the individual's last known address given in the
Department's files, to the address given on the affidavit, and, if a
Social Security number is known, to the Social Security Administration
for forwarding. The election and affidavit may be filed at any time
before commencement of annuity. It must remain on file with PER/ER/RET
for at least one year before being given irrevocable effect by the
Department. If the annuity to the former participant becomes effective
prior to the expiration of this one year period, the annuity shall be
computed and paid without reference to the election filed under this
section. Following this one-year period, or at the commencement of
annuity, if later, if the missing person has not been located, the
affidavit may be reaffirmed by the participant, after which an election
by the participant to reduce or eliminate the share of regular survivor
annuity for the missing person shall be given irrevocable effect by the
Department. If the annuity to the former participant has commenced, it
shall be recomputed and paid retroactively to give effect to any
election made under this section.
22 CFR 19.11-5 Commencement, termination and adjustment of annuities.
(a) An annuity payable from the Fund to a surviving spouse or former
spouse begins on the day after the participant or annuitant dies and
stops on the last day of the month before the survivor's (1) marriage
before age 60, or (2) death. If a survivor annuity is terminated
because of remarriage, the annuity is restored at the same rate
effective on the date such remarriage is terminated, provided any
lump-sum paid upon termination of the annuity is returned to the Fund.
The termination of a surviving spouse annuity due to remarriage does not
apply to a survivor annuitant who is a surviving spouse of a participant
who died in service or retired before October 1, 1976, unless elected
following a marriage after retirement under circumstances described in
19.10-3 or 19.10-4.
(b) A surviving spouse or former spouse shall not become entitled to
a survivor annuity or to the restoration of a survivor annuity payable
from the Fund unless the survivor elects to receive it instead of any
other survivor annuity to which entitled under this or any other
retirement system for Government employees. (For this purpose, neither
the Social Security system nor the military retirement system is
considered a retirement system for Government employees.) This
restriction does not apply to a survivor annuitant who is a surviving
spouse of a participant who died in service or retired before October 1,
1976, unless the survivor annuity was elected under circumstances
described in 19.10-3 or 19.10-4.
(c) A child's annuity begins on the day after the participant dies,
or if a child is not then qualified, on the first day of the month in
which the child becomes eligible. A child's annuity shall terminate on
the last day of the month which precedes the month in which eligibility
ceases.
(d) Regular and supplemental survivor annuities to a spouse or former
spouse of an annuitant described in 19.11-2, 19.11-3 and 19.10-6(b)
are increased from their effective date by the cumulative percentage of
cost-of-living increases the annuitant was receiving under section 826
of the Act at death. All annuities payable to survivors on the date a
cost-of-living adjustment becomes effective are increased by that
percentage except (1) the first increase to a surviving spouse of a
participant who dies in service shall be pro rated and (2) additional
survivor annuities under 19.10-5 when the spousal agreement authorizing
the annuity makes no provision for cost-of-living increases.
(e) The annuity of survivors becomes effective as specified in this
section but is not paid until the survivor submits Form JF-38,
Application for Death Benefits, supported by such proof as may be
required, for example, death, marriage, and/or divorce certificates. In
the event that such is not submitted during an otherwise eligible
beneficiary's lifetime, no annuity is due or payable to the
beneficiary's estate.
(46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981)
22 CFR 19.11-6 Death during active duty.
(a) Annuity for surviving former spouse. In the event a participant
dies before separation from the Service and leaves a former spouse, such
former spouse is entitled to a regular survivor annuity under 19.11-2
computed as if the participant had retired on the date of death unless a
court order or spousal agreement is on file in the Department waiving
such entitlement or providing for some other computation, or unless the
former spouse had been found missing and an election filed under the
procedures of 19.11-4 waiving a survivor benefit for that person. Any
assumed service authorized to be used under paragraph (b) of this
section in computing the annuity for a surviving spouse may not be
counted as ''years of marriage'' when determining whether the previous
spouse qualifies as a ''former spouse'' under the definition in 19.2(k)
or when computing the pro rata share under 19.2(s). A former spouse is
entitled to an additional survivor annuity under 19.10-5 provided death
occurs on or after the effective date of a spousal agreement providing
for the additional annuity.
(b) Annuity for surviving spouse. If a participant who has at least
19 months of civilian service credit toward retirement under the System,
excluding extra service credited for unhealthful post duty in accordance
with section 816 of the Act, dies before separation from the Service,
and is survived by a spouse as defined in 19.2(v) such survivor shall
be entitled to an annuity equal to 55 percent of the annuity computed in
accordance with 19.10-1 less any annuity payable to a former spouse
under paragraph a. If the participant had less than three years of
creditable civilian service at the time of death, the survivor annuity
is computed on the basis of the average salary for the entire period of
such service. If, at time of death, the participant had less than 20
years of creditable service, the annuity shall be computed on the
assumption that the participant has had 20 years of service, but such
additional service credit shall in no case exceed the difference between
the participant's age on the date of death and age 65. A spouse is
entitled to an additional survivor annuity under 19.10-5 provided death
occurs on or after the effective date of a spousal agreement providing
for the additional annuity.
(c) Annuity for a child or children. If a participant described in
paragraph (b) of this section is survived by a child or children, each
surviving child is entitled to an annuity as described in 19.11-7.
(d) Annuity changes. Annuities based on a death in service are
subject to the provisions of 19.11-5 governing commencement,
adjustment, termination and resumption of annuities.
22 CFR 19.11-7 Annuity payable to surviving child or children.
(a) If a participant who has at least 18 months of civilian service
credit under the System dies in service, or if an annuitant who was a
former participant dies, annuities are payable to a surviving child or
children, as defined in 19.2(e) as follows:
(1) When survived by spouse and child or children. If a principal is
survived by a wife or husband and by a child or children, in addition to
any other annuity, there shall be paid to or on behalf of each child an
annuity equal to the smallest of:
(i) $900
(ii) $2,700 divided by the number of children -- adjusted under
paragraph (b).
(2) When survived by a child or children but no spouse. If the
principal is not survived by a wife or husband, but by a child or
children, each surviving child shall be paid an annuity equal to the
smallest of:
(i) $1,080
(ii) $3,240 divided by the number of children -- adjusted under
paragraph (b) of this section.
(b) Adjusted rates. In order to reflect cost-of-living increases,
the amounts referred to in paragraphs (a)(1) and (2) are increased from
the commencing date of the annuity to each child by the cumulative
percentage of all cost-of-living increases that have occurred under 5
U.S.C. 8340 since October 31, 1969.
(c) Recomputation of annuity for child or children. If a surviving
wife or husband dies or the annuity of a child is terminated, the
annuities of any remaining children shall be recomputed and paid as
though such spouse or child had not survived the participant. If the
annuity to a surviving child who has not been receiving an annuity is
initiated or resumed, the annuities of any other children shall be
recomputed and paid from that date as though the annuities to all
currently eligible children in the family were then being initiated.
22 CFR 19.11-8 Required elections between survivor benefits.
(a) Bar against concurrent payment under this Act and Workers'
Compensation Act. Except as stated below, survivor annuities and
survivors' compensation for work injuries under 5 U.S.C. 8102 are not
payable concurrently if both are based on the death of the same
employee. A survivor entitled to both must elect which of the two
benefits he/she prefers. Should all eligible survivors of a deceased
employee elect to receive the compensation benefit rather than the
survivor annuity, their rights to the latter are terminated and, if the
lump-sum credit has not been exhausted, a lump-sum payment will become
due under 19.13. The one exception to this rule occurs when a widow or
widower is being paid the balance of a scheduled compensation award
under 5 U.S.C. 8107 due the deceased employee. If so, the widow or
widower may receive the survivor annuity and compensation award
concurrently.
(b) Election between survivor annuity and social security benefits.
Pursuant to 42 U.S.C. 417 (a) and (e), survivors who are eligible for
annuity which is based in part on military service performed by a
principal between September 16, 1940, and December 31, 1956, and also
for survivor benefits under the Social Security system, may elect to
have the military service credited toward the Social Security benefit.
In practice, the survivors should apply for both benefits, ask the
Department and the Social Security Administration for statements showing
the amount of each benefit, and then make their election of where to
credit the military service. If Social Security benefits are elected,
the rights of all survivors to a foreign service annuity are terminated.
22 CFR 19.12 Employment in a government agency.
An annuitant who is reemployed by a Federal Government agency may not
receive a combination of salary and annuity which exceeds his/her
Foreign Service salary at the time of retirement. Refer to 19.9-4.
22 CFR 19.13 Lump-sum payment.
22 CFR 19.13-1 Lump-sum credit.
''Lump-sum credit'' is the compulsory and special contributions to a
participant's or former participant's credit in the Fund for his/her
first 35 years of service plus interest thereon computed from the
midpoint of each service period and compounded at four percent annually
to the date of separation or December 31, 1976, whichever is earlier,
and after such date, for a participant who separates from the Service
after completing at least one year of civilian service and before
completing 5 years of such service, at the rate of three percent
annually to the date of separation. Interest shall not be paid for a
fractional part of a month in the total service or on compulsory and
special contributions from the annuitant for recall service or other
service performed after the date of separation which forms the basis for
annuity.
22 CFR 19.13-2 Share payable to a former spouse.
A former spouse of a participant or annuitant is entitled to a
prorata share of 50 percent of any lump-sum payment authorized to be
paid to a former participant under this section who separated from the
Service on or after February 15, 1981, unless otherwise directed in a
court order or a spousal agreement.
22 CFR 19.13-3 Payment after death of principal.
If a participant or former participant dies and no claim for annuity
is payable, the lump-sum credit is paid to surviving beneficiaries.
22 CFR 19.14 Waiver of annuity.
An individual entitled to be paid an annuity may, for personal
reasons, decline to accept all or any part of the annuity. However, a
principal may not waive the portion of his/her annuity authorized to be
paid to a former spouse under 19.7 or 19.9 or to a beneficiary under
19.6. An annuity waiver shall be in writing and sent to the Department
(PER/ER/RET). A waiver may be revoked in writing at any time. Payment
of the annuity waived may not be made for the period during which the
waiver was in effect.
22 CFR 19.14 PART 20 -- BENEFITS FOR CERTAIN FORMER SPOUSES
Sec.
20.1 Definitions.
20.2 Funding.
20.3 Qualifications.
20.4 Retirement benefits.
20.5 Survivor benefits.
20.6 COLA.
20.7 Waiver.
20.8 Effect on other benefits.
20.9 Application procedure.
Authority: 22 U.S.C. 3901 et seq.
Source: 53 FR 39457, Oct. 7, 1988, unless otherwise noted.
22 CFR 20.1 Definitions.
As used in this part, unless otherwise specified, the following have
the meaning indicated:
COLA means cost-of-living adjustment in annuity.
Creditable service or service means employment or other periods that
are counted under sections 816, 817, or 854 in determining retirement
benefits.
Disability annuitant means a participant in FSRDS or FSPS entitled to
a disability annuity under section 808 of the Act or Subchapter V,
Chapter 84, Title 5 U.S.C., and a disability annuity means a Foreign
Service annuity computed under those sections.
FSRDS means the Foreign Service Retirement and Disability System
established by Subchapter I, Chapter 8, of the Act.
FSPS means the Foreign Service Pension System established by
Subchapter II, Chapter 8, of the Act.
Former spouse means a former wife or husband of a participant or
former participant who was married to such participant for not less than
10 years during service of the participant which is creditable under
Chapter 8 of the Act with at least 5 years occurring while the employee
was a member of the Foreign Service and who retired from the Foreign
Service Retirement System.
Full annuity equals the annuity the former participant would be
eligible to receive except for deductions made to provide survivor
benefits or because of payment of a portion of the annuity to others.
Participant means a person who contributes to the Fund identified in
20.2. Such person may participate in either FSRDS or FSPS.
Principal means a participant or former participant whose service
forms the basis for a benefit for a former spouse under this part.
Pro rata share, in the case of a former spouse of a participant or
former participant, means the percentage obtained by dividing the number
of months during which the former spouse was married to the participant
during the creditable service of the participant by the total number of
months of such creditable service. In the total period, 30 days
constitutes a month and any period of less than 30 days is not counted.
When making this calculation for a former spouse married to a
participant during a period the participant earned extra service credit
under section 817 of the Act, the number of months of such extra service
credit earned during that period of the marriage shall be added to the
total number of months of the marriage.
22 CFR 20.2 Funding.
Benefits under this part are paid from the Fund maintained by the
Secretary of the Treasury pursuant to section 802 of the Act but are not
authorized to be paid except to the extent provided therefor.
Appropriations for such Fund are authorized by section 821(a) of the
Act.
22 CFR 20.3 Qualifications.
To be eligible for retirement or survivor benefits under this part, a
former spouse must --
(a) Have been a former spouse on February 14, 1981;
(b) After becoming a former spouse, not have remarried before
attaining age 55;
(c) In the case of any retirement benefit under 20.5; elect this
benefit instead of any survivor annuity for which the former spouse may
simultaneously be eligible under this or another retirement system for
Government employees; and
(d) Submit an application to the Department of State by June 22,
1990, in accordance with 20.9 unless that date is extended as
authorized by that section. The deadline for submission of an
application for survivor benefits under 20.5 will be deemed to have
been met if the former spouse submits an application for retirement
benefits within the deadline.
22 CFR 20.4 Retirement benefits.
(a) Type of benefits. (1) A former spouse who meets the
qualification requirements of 20.3 is entitled to a share of any
Foreign Service annuity (other than a disability annuity) or any
supplemental annuity computed under section 806(a), 823 or 824 of the
Act to which the principal is entitled under FSRDS and to any Foreign
Service annuity (other than a disability annuity) or annuity supplement
computed under section 824 or 855 of the Act of 5 U.S.C. 8415 to which
the principal is entitled under FSPS.
(2) A former spouse of a disability annuitant is entitled to a share
of benefits to which the annuitant would qualify under paragraph (a) of
this section, he or she not been disabled based on the actual age and
service of the annuitant.
(b) Share. The share of a participant's benefits to which a
qualified former spouse is entitled is --
(1) 50 percent of the benefits described in 20.4(a) if the former
spouse was married to the participant throughout the latter's creditable
service; or
(2) A pro rata share of 50 percent of such benefits if the former
spouse was not married to the participant throughout such creditable
service.
(c) Reduction of benefits. If retirement benefits of a principal are
reduced because of reemployment, attainment of eligibility for Social
Security benefits or for any other reason, the amount of the share
payable to a former spouse is correspondingly reduced during the period
of the reduction.
(d) Commencement, Termination and Suspension. (1) Entitlement to
retirement benefits under this section (except for a former spouse of a
disability annuitant) shall commence on the latter of --
(i) The day the principal becomes entitled to benefits described in
20.4(a); or
(ii) December 22, 1987.
(2) Entitlement to retirement benefits under this section for a
former spouse of a disability annuitant shall commence on the latter of
--
(i) The date the principal would qualify for benefits (other than a
disability annuity) described in 20.4(a) on the basis of the
principal's actual age and service;
(ii) The date the disability annuity begins; or
(iii) December 22, 1987.
(3) Entitlement to retirement benefits under this section shall
terminate or be suspended on the earlier of --
(i) Last day of the month before the former spouse dies or remarries
before attaining age 55;
(ii) Date benefits of the principal terminate or are suspended
because of death, recall, reemployment, recovery from disability or for
any other reason.
(4) Entitlement to benefits under this section shall be resumed for a
former spouse, following their suspension, or the date they are resumed
for the principal.
22 CFR 20.5 Survivor benefits.
(a) Type of benefits. A former spouse who meets the eligibility
requirements of 20.3 is entitled to survivor benefits equal to one of
the following; whichever is applicable:
(1) 55 percent of the full annuity to which the principal was
entitled on the commencement or recomputation date of the annuity in the
case of a principal who dies while in receipt of a Foreign Service
annuity computed under section 806, 808, 823, 824, or 855 of the Act of
5 U.S.C. 8415;
(2) 55 percent of the annuity to which the principal was entitled at
death in the case of a principal who dies while in receipt of a Foreign
Service annuity computed under 5 U.S.C. 8452;
(3) 55 percent of the full annuity to which the principal would have
been entitled if he or she retired (or returned to retirement status) on
the date of death computed -- depending on the provision that would be
used to compute an annuity for a surviving spouse of the principal --
under section 806(a), 823, 824, or 855(b) of the Act of 5 U.S.C. 8415
and using the actual service of the principal, in the case of a
principal who dies while in active service, including service on recall
or reemployment while annuity is suspended or reduced; or,
(4) 55 percent of the full annuity computed under 5 U.S.C. 8413(b)
that the principal could have elected to receive commencing on the date
of death or, if later, commencing on the date the principal would have
attained the minimum retirement age described in 5 U.S.C. 8412(h), in
the case of a principal while entitled to a deferred annuity under 5
U.S.C. 8413(b), but before commencement of that annuity. A survivor
annuity under this paragraph may not commence before the date the
principal would have attained the minimum retirement age.
(b) Effect of Election of Alternate Form Annuity. If a principal
elects an alternate form annuity under section 829 of the Act or 5
U.S.C. 8420a, survivor benefits for a former spouse under this section
shall, nevertheless, be based on what the principal's annuity would have
been had the principal not withdrawn retirement contributions in a lump
sum.
(c) Reduction Because of Receipt of Other Survivor Benefits. If a
former spouse is in receipt of a survivor annuity based on an election
by the principal under section 806(f) or 2109 of the Act, the survivor
benefits for the former spouse under this section shall be reduced on
the effective date by the amount of such elected survivor annuity.
(d) Commencement and Termination. Entitlement to survivor benefits
under this section --
(1) Shall commence on the latter of --
(i) The date the principal dies;
(ii) December 22, 1987; and
(2) Shall terminate on the last day of the month before the former
spouse dies or remarries before attaining age 55.
22 CFR 20.6 COLA.
(a) Retirement Benefits. A retirement annuity payable to a former
spouse under 20.4 is adjusted for cost-of-living increases under
section 826 or 858 of the Act in the same manner as the annuity of the
principal. The first such increase for a former spouse shall be
prorated under the applicable section in the same way the first increase
for the principal is adjusted, irrespective of whether the annuity to
the former spouse commences on the same date as the annuity to the
principal. If the benefit of a former spouse is based in part on an
annuity supplement payable to a principal under 5 U.S.C. 8421 which is
not adjusted by COLA, then that portion of the benefit payable to a
former spouse is not adjusted by COLA.
(b) Survivor Benefits. (1) Survivor annuities payable to a former
spouse are adjusted for COLA under section 826 or 858 of the Act in the
same manner as annuities are or would be adjusted for other survivors of
the principal.
(2) A survivor annuity payable to a former spouse under 20.5-1(A)
shall be increased from its commencing date pursuant to paragraph (c)(2)
of section 826 of the Act or 8462 of Title 5, U.S. Code, by all COLA
received by the principal at death, irrespective of the date of death
and in instances where death occurred prior to December 22, 1987, by all
COLA that would have been paid to a survivor annuitant from the date of
death until December 22, 1987.
(3) The first increase to which a former spouse becomes entitled
whose annuity is computed under 20.5(a)(2) shall be prorated pursuant
to 5 U.S.C. 8462(c)(4).
(4) The first increase to which a former spouse becomes entitled
whose annuity is computed under 20.5(a)(3) or
(5) Shall be prorated pursuant to paragraph (c)(1) of section 826 of
the Act or 8462 or Title 5, U.S. Code.
22 CFR 20.7 Waiver.
A former spouse entitled to an annuity under this part may decide to
decline all or any part of the annuity for personal reasons. An annuity
waiver shall be in writing and sent to the Retirement Division
(PER/ER/RET), Department of State, Washington, DC 20520. A waiver may
be revoked in writing at any time. Payment of the annuity waived prior
to receipt by the Retirement Division of the renovation may not be made.
22 CFR 20.8 Effect on other benefits.
Payment to a former spouse under this part shall not impair, reduce,
or otherwise affect benefits paid under the Act to the principal or
other persons.
22 CFR 20.9 Application procedure.
(a) Submission of Application. To be eligible for retirement or
survivor benefits under this part, a former spouse must submit a
properly executed and completed application to the Department of State
by June 22, 1990 or, if an exception is made for compelling cause to
this deadline, within 60 days following the date of the letter from the
Department transmitting the application to the former spouse. The
application must be delivered or mailed to the Retirement Division
(PER/ER/RET), Room 1251, Department of State, Washington, DC 20520.
(b) Request for Application. The Department of State has attempted
to mail applications to all former spouses of whom it is aware that it
believes may be eligible for benefits under this part. Any eligible
former spouse who does not have an application at the time this part is
published in the Federal Register (October 7, 1988) must communicate
with the Department as soon as possible and request an application.
Request may be in person or by mail to the address in 20.9(a) or by
telephoning the Retirement Division on area code 202-647-9315. A
request by letter must include the typed or printed full name and
current address of the former spouse.
It shall also give the dates of marriage and divorce or annulment
that establish eligibility and fully identify the Foreign Service
employee or former employee in question and state the agency of current
or last employment.
(c) Payment of Benefits Delayed. Payment of benefits cannot be made
to a former spouse until the application for benefits is approved by the
Retirement Division of the Department. Upon such approval, benefits
will be paid to an eligible former spouse retroactively, if necessary,
back to the commencing date determined under this part.
22 CFR 20.9 SUBCHAPTER C -- FEES AND FUNDS
22 CFR 20.9 PART 22 -- SCHEDULE OF FEES FOR CONSULAR SERVICES --
DEPARTMENT OF STATE AND FOREIGN SERVICE
Sec.
22.1 Schedule of fees.
22.2 Requests for services in the United States.
22.3 Remittances in the United States.
22.4 Requests for services, Foreign Service.
22.5 Remittances to Foreign Service posts.
22.6 Refund of fees.
22.7 Collection and return of fees.
22.8 Effective date.
Authority: Secs. 3, 4, 63 Stat. 111, as amended; 22 U.S.C. 211a;
214, 2651, 2658, 3921, 4219; 31 U.S.C. 9701; E.O. 10718, 22 FR 4632;
E.O. 11295, 31 FR 10603; 3 CFR, 1954-1958 Comp. p. 507, unless
otherwise noted.
Source: 46 FR 58071, Nov. 30, 1981, unless otherwise noted.
22 CFR 22.1 Schedule of Fees.
(56 FR 55813, Oct. 30, 1991)
22 CFR 22.2 Requests for services in the United States.
(a) Requests for records. Requests by the file subject of the
individual's authorized agent for services involving U.S. passport
applications and related records, including consular birth, marriage and
death records and authentication of other passport file documents, shall
be addressed to Passport Services, Correspondence Branch, Department of
State, Washington, D.C. 20524. Requests for consular birth records
should specify if a Consular Report of Birth (Form FS 240, or long form)
or Certification of Birth (Form DS 1350, or short form) is desired.
Advance remittance of the exact fee is required for each service.
(b) Authentication services. Requests for Department of State
authentication of documents other than passport file documents must be
accompanied by remittance of the exact total fee chargeable and
addressed to the Authentication Officer, Department of State,
Washington, D.C. 20520.
22 CFR 22.3 Remittances in the United States.
(a) Type of Remittance. Remittances shall be in the form of: (1)
Check or bank draft drawn on a bank in the United States; (2) money
order -- postal, international or bank; or (3) U.S. currency.
Remittances shall be made payable to the order of the Department of
State. The Department will assume no responsibility for cash which is
lost in the mail.
(b) Exact payment of fees. Fees must be paid in full prior to
issuance of requested documents. If uncertainty as to the existence of
a record or as to the number of sheets to be copied precludes remitting
the exact fee chargeable with the request, the Department of State will
inform the interested party of the exact amount required.
22 CFR 22.4 Requests for services, Foreign Service.
Officers of the Foreign Service shall charge for official services
performed abroad at the rates prescribed in this schedule, in coin of
the United States or at its representative value in exchange (22 U.S.C.
1202). For definition of representative value in exchange, see 23.4 of
this chapter. No fees named in this schedule shall be charged or
collected for the official services to American vessels and seamen (22
U.S.C. 1186). The term ''American vessels'' is defined to exclude, for
the purposes of this schedule, undocumented American vessels and the
fees prescribed herein shall be charged and collected for such
undocumented vessels. However, the fees prescribed herein shall not be
charged or collected for American public vessels, which includes any
vessel owned or operated by a U.S. Government department or agency and
engaged exclusively in official business on a non-commercial basis.
This schedule of fees shall be kept posted in a conspicuous place in
each Foreign Service consular office, subject to the examination by all
persons interested therein (22 U.S.C. 1197).
22 CFR 22.5 Remittances to Foreign Service posts.
Remittances to Foreign Service posts from persons in the United
States in payment of offical fees and charges or for the purpose of
establishing deposits in advance of rendition of services shall be in a
form acceptable to the post, drawn payable to the American Embassy (name
of city), American Consulate General (name of city) or American
Consulate (name of city), as the case may be. This will permit cashing
of negotiable instruments for deposit in the Treasury when not
negotiated locally. See 23.2 of this chapter.
(a) Time at which fees become payable. Fees are due and payble prior
to issue or delivery to the interested party of a signed document, a
copy of a record, or other paper representative of a service performed.
(b) Receipt for fees; register of services. Every officer of the
Foreign Service responsible for the performance of services as
enumerated in the Schedule of Fees for Consular Services, Department of
State and Foreign Service ( 22.1), shall give receipts for fees
collected for the official services rendered, specifying the nature of
the service and numbered to correspond with entries in a register
maintained for the purpose (22 U.S.C. 1192, 1193, and 1194). The
register serves as a record of official acts performed by officers of
the Foreign Service in a governmental or notarial capacity,
corresponding in this regard with the record which notaries are usually
expected or required to keep of their official acts. See 92.2 of this
chapter.
(c) Deposits to guarantee payment of fees or incidental costs. When
the amount of any fee is determinable only after initiation of the
performance of a service, or if incidental costs are involved, the total
fee and incidental costs shall be carefully estimated and an advance
deposit required, subject to refund of any unused balance to the person
making the deposit.
22 CFR 22.6 Refund of fees.
(a) Fees which have been collected for deposit in the Treasury are
refundable:
(1) As specifically authorized by law (See 22 U.S.C. 214a concerning
passport fees erroneously charged persons excused from payment, 22
U.S.C. 216 concerning passport fees in cases where the appropriate
representative in the United States of a foreign government refuses a
visa and 46 U.S.C. 8 concerning fees improperly imposed on vessels or
seamen);
(2) When the principal officer at the consular post where the fee was
collected (or the officer in charge of the consular section at a
combined diplomatic/consular post) finds upon review of the facts that
the collection was erroneous under applicable law; and
(3) Where determination is made by the Department of State with a
view to payment of a refunded in the United States in cases which it is
impracticable to have the facts reviewed and refunded effected by and at
the direction of the responsible consular office.
See 13.1 of this chapter concerning refunds of fees improperly
exacted by consular officers who have neglected to return the same.
(b) Refunds of $5.00 or less will not be paid to the remitter unless
a claim is specifically filed at the time of payment for the excess
amount. An automatic refund on overpayments due to misinformation or
mistakes on the part of the Department of State will be made.
(52 FR 29515, Aug. 10, 1987)
22 CFR 22.7 Collection and return of fees.
No fees other than those prescribed in the Schedule of Fees, 22.1,
or by or pursuant to an act of Congress, shall be charged or collected
by officers of the Foreign Service for official services performed
abroad (22 U.S.C. 1201). All fees received by any officer of the Foreign
Service for services rendered in connection with the duties of office or
as a consular officer shall be accounted for and paid into the Treasury
of the United States (22 U.S.C. 99 and 812). For receipt, registry, and
numbering provisions, see 22.5(b). Collections for transportation and
other expenses necessary for performance of services or for Interested
Party toll telephone calls shall be refunded to post allotment accounts
and made available for meeting such expenses.
22 CFR 22.8 Effective date.
The charges established become effective November 30, 1981 with
respect to all services rendered pursuant to requests received in the
Department of State and the Foreign Service on or after the effective
date.
22 CFR 22.8 PART 23 -- FINANCE AND ACCOUNTING
Sec.
23.1 Remittances made payable to the Department of State.
23.2 Endorsing remittances for deposit in the Treasury.
23.3 Refunds.
23.4 Representative value in exchange.
23.5 Claims for settlement by Department of State or General
Accounting Office.
Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.
Source: 22 FR 10793, Dec. 27, 1957, unless otherwise noted.
22 CFR 23.1 Remittances made payable to the Department of State.
Except as otherwise specified in this title, remittances of moneys
shall be drawn payable to the Department of State and sent to the
Department for action and deposit. (See 21.2, 22.2, and 51.40 of this
chapter.)
22 CFR 23.2 Endorsing remittances for deposit in the Treasury.
The Office of Finance -- Cashier Unit, the Authentication Office, the
Passport Office or Passport Agency, American Embassy, American Legation,
American consular office, or other office or unit of the Department of
State authorized and required to deposit funds in the Treasury of the
United States, is hereby authorized to endorse, or to have endorsed, to
the order of the Treasurer of the United States by appropriate stamp,
checks, drafts, money orders, or other forms of remittance, regardless
of how drawn, which are for payment to the Department of State for
deposit in the Treasury of the United States, including those payable to
the Secretary of State.
22 CFR 23.3 Refunds.
(a) Rectifications and readjustments. See 22.4 of this chapter for
outline of circumstances under which fees which have been collected for
deposit in the Treasury may be refunded.
(b) Refund of wrongful exactions. See 13.1 of this chapter
concerning recovery from consular officers of amounts wrongfully exacted
and withheld by them.
22 CFR 23.4 Representative value in exchange.
Representative value in exchange for the collection of a fee means
foreign currency equivalent to the prescribed United States dollar fee
at the current rate of exchange at the time and place of payment of the
fee. ''Current rate'' of exchange for this purpose means the bank
selling rate at which the foreign bank will sell the number of United
States dollars required to liquidate the obligation to the United States
for the Foreign Service fee.
22 CFR 23.5 Claims for settlement by Department of State or General
Accounting Office.
Claims for settlement by the Department of State or by the General
Accounting Office shall be submitted to the Department in duplicate over
the handwritten signature, together with the post office address of the
claimant, and with appropriate recommendations of the officer of the
Foreign Service, for items such as:
(a) Refunds of amounts representing payroll deductions such as for
any retirement and disability fund;
(b) Amounts due deceased, incompetent, or insolvent persons including
payees or bona fide holders of unpaid Government checks;
(c) Amounts claimed from the Government when questions of fact affect
either the amount payable or the terms of payment, when for any reason
settlement cannot or should not be affected at the Foreign Service
office; and
(d) Amounts of checks, owned by living payees or bona fide holders,
which have been covered into outstanding liabilities. The Foreign
Service post or the Department of State shall be consulted before
preparing the claim to ascertain whether any special form is required to
be used. Claims for unpaid compensation of deceased alien employees
shall be forwarded to the respective Foreign Service post.
22 CFR 23.5 SUBCHAPTER D -- CLAIMS AND STOLEN PROPERTY
22 CFR 23.5 PART 31 -- ADMINISTRATIVE SETTLEMENT OF TORT CLAIMS AND
CERTAIN PROPERTY DAMAGE CLAIMS
Sec.
31.1 Purpose.
31.2 Delegation of authority.
22 CFR 23.5 Subpart A -- General Provisions
31.3 Definitions.
31.4 Action by claimant.
31.5 Penalties.
31.6 Investigation of claims.
31.7 Determination of claims.
31.8 Adjustment or settlement of claims.
31.9 Payment of claims.
31.10 Final denial of claim.
22 CFR 23.5 Subpart B -- Federal Tort Claims Act
31.11 General.
31.12 Allowable claims.
31.13 Claims not allowable.
31.14 Limitations.
31.15 Acceptance of award or settlement by claimant.
31.16 Attorneys' fees.
31.17 Effective date.
22 CFR 23.5 Subpart C -- Act of August 1, 1956
31.18 General.
22 CFR 23.5 Subpart D -- Act of June 19, 1939
31.19 General.
31.20 Exclusion.
31.21 Limitations.
31.22 Action by claimant.
31.23 Payment of claim.
Authority: 49 Stat. 906, as amended, sec. 4, 63 Stat. 111, as
amended, sec. 2, 70 Stat. 890, sec. 1, 62 Stat. 983, as amended at
80 Stat. 306; 22 U.S.C. 277e, 2658, 2669, 28 U.S.C. 2672; 28 CFR
14.11.
Source: 32 FR 4020, Mar. 14, 1967, unless otherwise noted.
22 CFR 31.1 Purpose.
The purpose of this part is to establish and provide a procedure for
the preparation and submission of claims for personal injury, death, and
property loss or damage capable of administrative settlement under the
Federal Tort Claims Act (28 U.S.C. 2672), as amended and the act of
August 1, 1956 (5 U.S.C. 170g), and claims for property loss or damage
cognizable under the act of June 19, 1939 (22 U.S.C. 277e), and to
authorize certain officers of the Department of State and of the U.S.
Section, International Boundary and Water Commission, United States and
Mexico, to consider, ascertain, adjust, determine, and settle such
claims.
22 CFR 31.2 Delegation of authority.
The Legal Adviser, the Deputy Legal Advisers and the Assistant Legal
Adviser are authorized to consider, ascertain, adjust, determine,
compromise, and settle claims capable of administrative settlement under
the Federal Tort Claims Act and the act of August 1, 1956, except claims
arising out of activities of the Commission and except that the
Assistant Legal Adviser may only award, compromise or settle claims in
the amount of $2,500 or less. Awards in excess of $25,000 require
approval by the Attorney General or his designee. Chief's of mission
and principal officers of fiscal reporting posts are authorized to
consider, ascertain, adjust, determine and settle claims in an amount of
$1,000 or less which are capable of administrative settlement under the
act of August 1, 1956, arising out of the activities of their respective
establishments. The Commissioner is authorized to consider, ascertain,
adjust, determine, and settle claims cognizable under the Federal Tort
Claims Act and the act of June 19, 1939, arising out of activities of
the Commission.
(32 FR 4020, Mar. 14, 1967, as amended at 52 FR 43193, Nov. 11, 1987)
22 CFR 31.2 Subpart A -- General Provisions
22 CFR 31.3 Definitions.
As used in this part, the term:
(a) Secretary means the Secretary of State.
(b) Department means the Department of State, its offices, bureaus,
and divisions and its Foreign Service establishments abroad. It does
not include any contractor with the United States.
(c) Commission means the U.S. Section, International Boundary and
Water Commission, United States and Mexico.
(d) Legal Adviser means the Legal Adviser of the Department of State.
(e) Deputy Legal Advisers means the Deputy Legal Advisers of the
Department of State.
(f) Chiefs of mission means principal officers appointed by the
President, by and with the advice and consent of the Senate, in charge
of embassies or legations of the United States.
(g) Principal officers of fiscal reporting posts means principal
officers in charge of embassies, legations, or other diplomatic
missions, or of a consulate general or consulate of the United States,
which are designated fiscal reporting posts by the Department of State.
(h) Commissioner means the U.S. Commissioner, International Boundary
and Water Commission, United States and Mexico.
(i) Employee includes any officer or employee of the Department or
the Commission, or any person acting on behalf of the Department or the
Commission in an official capacity, temporarily or permanently in the
service of the Department or the Commission, whether with or without
compensation. It does not include the employee of a contractor with the
United States.
(j) Assistant Legal Adviser means the Assistant Legal Adviser for
International Claims and Investment Disputes of the Department of State.
(32 FR 4020, Mar. 14, 1967, as amended at 52 FR 43193, Nov. 11, 1987)
22 CFR 31.4 Action by claimant.
(a) Claimant. Claims for property loss or damage may be filed by the
owner of the property, his or her duly authorized agent or legal
representative, or survivors. A claim for loss wholly compensated by an
insurer with the rights of a subrogee may be presented by the insurer.
A claim for loss partially compensated by an insurer with the rights of
a subrogee may be presented by the parties individually as their
respective interests appear, or jointly. Claims for personal injury may
be filed by the injured person, his or her duly authorized agent or
legal representative. Claims for death may be filed by the executor or
administrator of the decedent's estate, or by any other person legally
or beneficially entitled to assert such a claim in accordance with
applicable local law governing the rights of survivors. When filed by
an agent or legal representative, the claim must be presented in the
name of the real claimant, be signed by the agent or legal
representative, show the title or legal capacity of the person signing
and be accompanied by evidence of his or her authority to present a
claim on behalf of the claimant as agent, legal representative,
executor, administrator, parent, guardian, or other legal
representative.
(b) Form of claim. Claims arising in the United States and in the
Territories and possessions of the United States should be prepared, in
duplicate, on the standard form, ''Claim for Damage or Injury,''
promulgated by the Bureau of the Budget. Copies of this form will be
furnished upon a request to the Department or the Commission, as the
case may be. All information requested therein should be given in
detail. It is especially important that the amount claimed for property
damage and for personal injury be indicated in the spaces provided.
Claims arising in foreign countries should be prepared in form of a
sworn statement and submitted in duplicate. The original copy of the
claim should be sworn to or affirmed before an official with authority
to administer oaths or affirmations and should contain the following
information, at least: (1) The name and address of the claimant; (2)
the amount claimed for injury or death and for property loss or damage;
(3) if property was lost or damaged, the amount paid or payable by the
insurer and the name of the insurer; (4) the facts and circumstances in
detail giving rise to the claim including the date, place and time of
the accident or incident; (5) if property was involved, a description
of the same and of the nature and extent of the damage and of the cost
of repair or replacement; (6) if personal injury was involved, the
nature of the injury, the cost of medical services and time and income
lost from incapacitation; (7) if death is involved, the names and ages
of the claimants and their relationship to the decedent; (8) the name
of the employee of the United States who is alleged to be responsible
for the accident or incident and the name and address of the Foreign
Service establishment by whom he or she is or was employed; (9) the
names and addresses of any witnesses to the accident or incident; and
(10) if desired, the law applicable to the claim.
(c) Place of filing claim. Claims should be submitted directly to
the office, bureau, division, or Foreign Service establishment of the
Department, or of the Commission, out of whose activities the accident
or incident occurred, if known; or, if not known, to the Assistant
Legal Adviser for International Claims and Investment Disputes, L/CID,
Department of State, Washington, D.C. 20520.
(d) Evidence and information to be submitted by claimant -- (1)
General. The amount claimed on account of damage to or loss of property
or on account of personal injury or death should, so far as possible, be
substantiated by competent evidence. Supporting statements, estimates
and the like should, if possible, be obtained from disinterested
parties. All evidence should be submitted in duplicate. Original
evidence or certified copies should be attached to the original copy of
the claim, and simple copies should be attached to the other copy of the
claim. All documents in other than the English language should be
accompanied by English translations.
(2) Death. In support of a claim based on death, the claimant should
submit the following evidence or information to the extent necessary to
substantiate the elements of the claim:
(i) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(ii) Decedent's employment or occupation at time of death, including
his or her monthly or yearly salary or earnings (if any), and duration
of his or her last employment or occupation.
(iii) Full names, addresses, birth dates, kinship, and marital status
of the decedent's survivors, including identification of those survivors
who were dependent for support upon the decedent at the time of his or
her death.
(iv) Degree of support afforded by the decedent to each survivor
dependent upon him or her for support at the time of his or her death.
(v) Decedent's general physical and mental condition before death.
(vi) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death, or itemized receipts of payment
for such expenses.
(vii) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and the
decedent's physical condition in the interval between injury and death.
(viii) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
damages claimed.
(3) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant should submit the following
evidence or information to the extent necessary to establish the
elements of the claim.
(i) A written report by his or her attending physician or dentist
setting forth the nature and extent of the injury, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity. In addition, the claimant may be required to submit to a
physical or mental examination by a physician employed by the Department
or another Federal agency. A copy of the report of the examining
physician shall be made available to the claimant upon the claimant's
written request provided that he or she has, upon request, furnished the
report referred to in the first sentence of this paragraph and has made
or agrees to make available to the Department any other physician's
reports previously or thereafter made of the physical or mental
condition which is the subject matter of his or her claim.
(ii) Itemized bills for medical, dental, and hospital expenses
incurred, or itemized receipts of payment for such expenses.
(iii) If the prognosis reveals the necessity for future treatment, a
statement of expected expenses for such treatment.
(iv) If a claim is made for loss of time from employment, a written
statement from his or her employer showing actual time lost from
employment, whether he or she is a full or part-time employee, and wages
or salary actually lost.
(v) If a claim is made for loss of income and the claimant is
self-employed, documentary evidence showing the amount of earnings
actually lost.
(vi) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
(4) Damage to personal property. In support of a claim for damage
to, or loss or destruction of personal property, the claimant should
submit the following evidence or information to the extent necessary to
substantiate the elements of the claim:
(i) Proof of ownership, in cases where doubt exists that claimant was
the owner.
(ii) A detailed statement of the amount claimed with respect to each
item of property.
(iii) Where the property has been repaired, an itemized receipt, or
where not repaired, itemized estimates of the cost of repairs by two
reliable persons who specialize in such work.
(iv) Where the property is not economically repairable, a statement
with respect to date of purchase, purchase price and salvage value,
accompanied, where doubt exists, by the corroborative statements of two
reliable qualified persons.
(v) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the damage or loss or
the damages claimed.
(5) Damage to real property. In support of a claim for damage or
destruction of real property, the claimant should submit the following
evidence or information to the extent necessary to substantiate the
elements of the claim:
(i) Proof of ownership.
(ii) A detailed statement of the amount claimed with respect to each
item of the property.
(iii) Where the property has been repaired, an itemized receipt, or,
where it has not been repaired, itemized estimates of the cost of
repairs by two reliable persons who specialize in such work.
(iv) Where the property is not economically repairable, corroborative
statements of two reliable qualified persons with regard to the value of
the property before and after the incident and the cost of replacement.
(v) Any other evidence or information which may have a bearing on
neither the responsibility of the United States for the damage or the
damages claimed.
(6) Damage to crops. In support of a claim for damage to crops, the
claimant should submit the following evidence or information:
(i) Proof of ownership of the crop.
(ii) An itemized signed statement showing the number of acres or
other unit measure crop damaged, the probable yield per unit, the gross
amount which would have been realized from such probable yield, and an
estimate of the costs of cultivating, harvesting and marketing the crop;
in addition, if the crop is one which need not be planted each year, a
statement of the diminution in value of the land beyond the damage to
the current year's crop.
(iii) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the damage or the
damages claimed.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984;
52 FR 43193, Nov. 11, 1987)
22 CFR 31.5 Penalties.
A person who files a false claim or makes a false or fraudulent
statement in a claim against the United States may be liable to a fine
of not more than $10,000 or to imprisonment of not more that 5 years, or
both (18 U.S.C. 287, 1001), and, in addition, to a forfeiture of $2,000
and a penalty of double the loss or damage sustained by the United
States (31 U.S.C. 231).
22 CFR 31.6 Investigation of claims.
(a) When a claim is received, the office, bureau, division, or
Foreign Service establishment out of whose activities the claim arose
shall make such investigation as may be necessary or appropriate for a
determination of the validity of the claim and thereafter shall forward
the claim, together with all pertinent material, and a recommendation,
based on the merits of the case, with regard to allowance or
disallowance of the claim, to the Assistant Legal Adviser, Commissioner,
chief of mission or principal officer of fiscal reporting post, as the
case may be.
(b) Pursuant to instructions from the Department, acting at the
request of any other Federal agency, a Foreign Service establishment
shall make such investigations as may be necessary or appropriate for
the determination of the validity of the claim arising outside the
United States, and thereafter shall forward the claim, together with all
pertinent material, and a recommendation regarding allowance or
disallowance of the claim, to the Department for transmission to the
requesting agency.
(32 FR 4020, Mar. 14, 1967, as amended at 52 FR 43193, Nov. 11, 1987)
22 CFR 31.7 Determination of claims.
Claims will be determined in accordance with the applicable statute
and the applicable subpart of this part.
22 CFR 31.8 Adjustment or settlement of claims.
(a) Except on instructions from the Legal Adviser, Deputy Legal
Advisers or the Assistant Legal Adviser no claim will be adjusted or
settled by a chief of mission, principal officer of a fiscal reporting
post if it falls within one of the following categories:
(1) A new precedent or new point of law;
(2) A claim which involves or may involve a question of policy;
(3) A claim in which the United States is or may be entitled to
indemnity or contribution from a third party and the claim against the
third party has not been settled;
(4) A claim whose adjustment or settlement would, for any reason,
control the disposition in a related claim in which the amount to be
paid may exceed $25,000;
(5) A claim in which the United States, an employee, agent or
cost-plus contractor is involved in litigation based on a claim arising
out of the same transaction.
(b) If a chief of mission or principal officer of a fiscal reporting
post considers, after the investigation of the claim has been completed,
that the claim falls within one of the categories listed in paragraph
(a) of this section, he or she shall transmit the claim, together with
all pertinent material, to the Assistant Legal Adviser.
(c) When the Legal Adviser, Deputy Legal Adviser, or the Assistant
Legal Adviser considers that a claim falls within one of the categories
listed in paragraph (a) of this section, he or she shall consult the
Department of Justice. Such consultation shall be initiated by a
written communication addressed to the Assistant Attorney General, Civil
Division, containing (1) a short and concise statement of the facts and
of the reasons for the referral, (2) copies of relevant portions of the
claim file, and (3) a statement of the recommendations and views of the
Department.
(d) The settlement of a claim for an amount in excess of $25,000
shall not be effected until the Legal Adviser, Deputy Legal Adviser, or
the Assistant Legal Adviser has obtained the written approval of the
Department of Justice. Consultations with a view to obtaining such
approval shall be initiated as provided in paragraph (c) of this
section. For purposes of this paragraph, a principal claim and a
derivative or subrogated claim shall be treated as a single claim.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984;
52 FR 43193, Nov. 11, 1987)
22 CFR 31.9 Payment of claims.
(a) When a claim is approved:
(1) If payment is to be in the amount of $2,500 or less it will be
made out of appropriations available to the Department;
(2) If payment is to be in excess of $2,500 and not more than
$100,000 it will be obtained by the Department by forwarding Standard
Form 1145 to the Claims Division, General Accounting Office;
(3) If payment is to be in excess of $100,000 it will be obtained by
the Department by forwarding Standard Form 1145 to the Bureau of
Accounts, Department of the Treasury, which will be responsible for
transmitting the award, compromise, or settlement to the Bureau of the
Budget for inclusion in a deficiency appropriation bill.
(b) When the use of Standard Form 1145 is required it shall be
executed by the claimant or it shall be accompanied by either a claim
settlement agreement or Standard Form 95 executed by the claimant.
(c) If payment is to be in excess of $25,000, Standard Form 1145
shall be accompanied by evidence that the award has been approved by the
Attorney General or his or her designee.
(d) When the claimant is represented by an attorney, the voucher for
payment shall designate both the claimant and his or her attorney as
''payee,'' and the address of the attorney shall be indicated on the
voucher. The check shall be delivered to the attorney.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 31.10 Final denial of claim.
Final denial of an administrative claim shall be in writing and sent
to the claimant, his or her attorney, or legal representative by
certified or registered mail. Except in the case of claims arising in
foreign countries, the notification of final denial shall contain a
statement that if the claimant is dissatisfied with the decision, he may
file suit in an appropriate U.S. District Court not later than 6 months
after the date of mailing of the notification.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 31.10 Subpart B -- Federal Tort Claims Act
22 CFR 31.11 General.
The Federal Tort Claims Act (28 U.S.C. 2672) authorizes the head of
each Federal agency, or his or her designee, to consider, ascertain,
adjust, determine, compromise, and settle certain tort claims for money
damages against the United States, in accordance with regulations
prescribed by the Attorney General. Subpart A of this part is in
implementation of the regulations prescribed by the Attorney General.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 31.12 Allowable claims.
Tort claims, except those specifically excluded by the Federal Tort
Claims Act (28 U.S.C. 2680), are allowable under the act and this
subpart for damage to or loss of property and for personal injury or
death, caused by the negligent or wrongful act or omission of any
employee of the Department or of the Commission, while acting within the
scope of his or her office or employment, under circumstances where the
United States, if a private person, would be liable for such damage,
loss, injury, or death, in accordance with the law of the place where
the act or omission occurred. The size of the payment is not limited by
the act. Payments in excess of $25,000 require the prior written
approval of the Attorney General.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 31.13 Claims not allowable.
The following claims, among others, are not allowable under the
Federal Tort Claims Act and this subpart:
(a) Any claim based upon an act or omission of an employee of the
Government exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a Federal agency or an
employee of the Government, whether or not the discretion involved be
abused.
(b) Any claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter.
(c) Any claim arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.
(d) Any claim arising in a foreign country. Such claims may be
allowable under the act of August 1, 1956. See Subpart C of this part.
22 CFR 31.14 Limitations.
(a) Claims arising under the Federal Tort Claims Act must be
presented in writing, within 2 years after accrual.
(b) A suit may not be filed until a claim has been finally denied.
If the Department fails to make a final disposition of a claim within 6
months after it is filed, the claim may, at the option of the claimant
any time thereafter, be deemed finally denied. If a claim is denied,
the claimant may commence action thereon within 6 months from the date
of notice of denial. The amount of the suit may not exceed the amount
of the claim, except where the increased amount is based upon newly
discovered evidence, or upon allegation and proof of intervening facts,
relating to the amount of the claim.
22 CFR 31.15 Acceptance of award or settlement by claimant.
The acceptance by the claimant of an award, compromise or settlement
is final and conclusive on the claimant, his or her agent or legal
representative and any person on whose behalf or for whose benefit the
claim has been presented, and constitutes a complete release of any
claim against the United States and against any employee of the
Government whose act or omission gave rise to the claim by reason of the
same subject matter.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 31.16 Attorneys' fees.
As part of any award or settlement, reasonable attorneys' fees may be
allowed out of, but not in addition to, the amount of the award or
settlement. Such fees shall not exceed 20 percent of the award or
settlement. Any attorney who receives more than the amount allowed may
be liable to a fine of not more than $2,000 or imprisonment of not more
than 1 year, or both. Attorneys' fees will be fixed only upon the
written request of the claimant or his or her attorney.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 31.17 Effective date.
Subparts A and B shall apply only to claims arising out of acts or
omissions occurring on or after January 18, 1967.
22 CFR 31.17 Subpart C -- Act of August 1, 1956
22 CFR 31.18 General.
The act of August 1, 1956 (5 U.S.C. 170g) authorizes the Secretary of
State, when funds are appropriated therefor, to pay tort claims in the
manner authorized in the first paragraph of 28 U.S.C. 2672, as amended,
when such claims arise in foreign countries in connection with
Department of State operations abroad. Consequently, the Federal Tort
Claims Act and subpart B of this part are applicable to claims filed
under the act of August 1, 1956, except that no provision has been made
in that act for the institution of suit if a claim is denied.
22 CFR 31.18 Subpart D -- Act of June 19, 1939
22 CFR 31.19 General.
The Act of June 19, 1939 (53 Stat. 841; 22 U.S.C. 277e), provides as
follows:
The Secretary of State acting through such officers as he may
designate, is further authorized to consider, adjust, and pay from funds
appropriated for the project, the construction of which resulted in
damages, any claim for damages occurring after March 31, 1937, caused to
owners of land or other private property of any kind by reason of the
operations of the United States, its officers or employees, in the
survey, construction, operation, or maintenance of any project
constructed or administered through the American Commissioner,
International Boundary Commission, United States and Mexico, if such
claim does not exceed $1,000 and has been filed with the American
Commissioner within 1 year after the damage is alleged to have occurred,
and when in the opinion of the American Commissioner such claim is
substantiated by a report of a board appointed by the said Commissioner.
This Act covers only claims for damages to lands or other private
property and not claims for personal injuries. (Decision Comptroller
General B-36817, Sept. 28, 1943, unpublished.) To the extent that claims
for damages to lands or other private property are based upon
negligence, the provisions of this Act have been superseded by the
Federal Tort Claims Act (26 Comp. Gen. 452, Decision B-61757, Jan. 6,
1947). Hence claims cognizable under the Act of June 19, 1939, are
limited to claims for damages accruing after March 31, 1937; (a) for
damages to lands or other private property of any kind by reason of the
operations of the United States, its officers or employees, in the
survey, construction, operation, or maintenance of any project
constructed or administered through the Commissioner; (b) where such
claims do not exceed $1,000; and (c) which claims are not based upon
the negligence of any officer or employee of the Government acting
within the scope of his or her employment.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 31.20 Exclusion.
Claims which are cognizable under the Federal Tort Claims Act are not
cognizable under the Act of June 19, 1939.
22 CFR 31.21 Limitations.
The claim will be considered by the Commissioner under this subpart
unless filed with him or her within 1 year after the damage is alleged
to have occurred.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 31.22 Action by claimant.
The provisions of 31.4 shall be applicable to claims for damages
cognizable under this subpart, except those provisions relating to
personal injury or death.
22 CFR 31.23 Payment of claim.
Upon receipt of a claim by the Commissioner, the Commissioner will
appoint a board to investigate the facts surrounding the claim and to
make its report and recommendations to the Commission. The Commissioner
will thereupon approve the claim in whole or in part, or disapprove the
claim. If the claim is approved in whole or in part, and claimant
accepts the settlement tendered by the Commissioner, the claimant will
execute a release of his or her claim in the form prescribed by the
Commissioner and will execute a voucher in the sum approved by the
Commissioner. The file on the case, including the claim, the findings
of the board, the approval of the Commissioner, the release, and the
voucher, will thereupon be transmitted by the Commissioner through the
Department to the General Accounting Office for settlement.
(22 U.S.C. 2658 and 3926)
(32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 31.23 PART 32 -- STOLEN PROPERTY UNDER TREATY WITH MEXICO
Sec.
32.1 Mexican motor vehicles, trailers, airplanes, etc., in the United
States.
32.2 American motor vehicles, trailers, airplanes, etc., in Mexico.
Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.
22 CFR 32.1 Mexican motor vehicles, trailers, airplanes, etc., in the
United States.
Whenever, in accordance with the provisions of Article I of the
convention1001 (50 Stat. 1334), the United Mexican States shall request
the detention in the United States of America of alleged stolen or
embezzled motor vehicles, trailers, airplanes, or the component parts of
any of them, the request shall be accompanied by documents legally valid
in the United Mexican States. The said documents shall be as follows:
(a) The original or a certified copy of the sales or conditional sales
contract and where registration of title is required by law the
certificate of such registration of title; (b) the original or a
certified copy of the official registration card; (c) not more than
three affidavits identifying the claimant as the owner of the legal or
equitable title, or both, to the property alleged to have been stolen or
embezzled; (d) the original or a certified copy of any assignment of
the property by the insured to the insurer pursuant to a contract of
insurance in force at the time the theft or embezzlement was committed.
(22 FR 10795, Dec. 27, 1957)
0011Convention of October 6, 1936 between the United States and
Mexico for the recovery and return of stolen or embezzled motor
vehicles, etc.
22 CFR 32.2 American motor vehicles, trailers, airplanes, etc., in
Mexico.
Whenever, in accordance with the provisions of Article II of the
convention (50 Stat. 1334), the United States of America shall request
the detention in the United Mexican States of alleged stolen or
embezzled motor vehicles, trailers, airplanes, or the component parts of
any of them, the request shall be accompanied by documents legally valid
in the United States of America. The said documents shall be as
follows: (a) The original or a certified copy of the sales or
conditional sales contract and where registration of title is required
by law the certificate of such registration of title; (b) the original
or a certified copy of the official registration card; (c) not more
than three affidavits identifying the claimant as the owner of the legal
or equitable title, or both, to the property alleged to have been stolen
or embezzled; (d) the original or a certified copy of any assignment of
the property by the insured to the insurer pursuant to a contract of
insurance in force at the time the theft or embezzlement was committed.
(22 FR 10795, Dec. 27, 1957)
22 CFR 32.2 Pt. 33
22 CFR 32.2 PART 33 -- FISHERMEN'S PROTECTIVE ACT PROCEDURES UNDER
SECTION 7
Sec.
33.1 Purpose.
33.2 Definitions.
33.3 Eligibility.
33.4 Applications.
33.5 Guaranty agreement.
33.6 Fees.
33.7 Conditions for claims.
33.8 Claim procedure.
33.9 Amount of award.
33.10 Payments.
33.11 Records.
33.12 Penalties.
Authority: 22 U.S.C. 1977.
Source: 52 FR 7529, Mar. 11, 1987, unless otherwise noted.
22 CFR 32.2 Seizure of U.S. Commercial Fishing Vessels
22 CFR 33.1 Purpose.
These rules clarify procedures for the administration of section 7 of
the Fishermen's Protective Act of 1967. Section 7 establishes a
Fishermen's Guaranty Fund to reimburse owners and charterers of United
States commercial fishing vessels for certain losses and costs caused by
the seizure and detention of their vessels by foreign countries under
certain rights or claims not recognized by the United States.
22 CFR 33.2 Definitions.
For the purpose of this part, the following terms mean:
(a) Act. The Fishermen's Protective Act of 1967, as amended (22
U.S.C. 1977 et seq.).
(b) Capital equipment. Equipment or other property which may be
depreciated for income tax purposes.
(c) Depreciated replacement cost. The present replacement cost of
capital equipment after being depreciated on a straight line basis over
the equipment's depreciable life, which is standardized at ten years.
(d) Downtime. The time a vessel normally would be in port or
transiting to and from the fishing grounds.
(e) Expendable items. Any property, excluding that which may be
depreciated for income tax purposes, which is maintained in inventory or
expensed for tax purposes.
(f) Fund. The Fishermen's Guaranty Fund established in the U.S.
Treasury under section 7(c) of the Act (22 U.S.C. 1977(c)).
(g) IATTC. Inter-American Tropical Tuna Commission.
(h) Market value. The price property would command in a market, at
the time of property loss, assuming a seller willing to sell and buyer
willing to buy.
(i) Other direct charge. Any levy which is imposed in addition to,
or in lieu of any fine, license fee, registration fee, or other charge.
(j) Owner. The owner or charterer of a commercial fishing vessel.
(k) Secretary. The Secretary of State or his designee.
(l) Seizure. Arrest of a fishing vessel by a foreign country for
allegedly illegal fishing.
(m) U.S. fishing vessel. Any private vessel documented or certified
under the laws of the United States as a commercial fishing vessel.
22 CFR 33.3 Eligibility.
Any owner or charterer of a U.S. fishing vessel is eligible to apply
for an agreement with the Secretary providing for a guarantee in
accordance with section 7(a) of the Act.
22 CFR 33.4 Applications.
(a) Applicant. An eligible applicant for a guaranty agreement must:
(1) Own or charter a U.S. fishing vessel, and
(2) Submit with his application the fee specified in 33.6 of this
part.
(b) Application forms. Application forms may be obtained by writing
to the Office of Fisheries Affairs, Bureau of Oceans and International
Environmental and Scientific Affairs, Room 5806, Department of State,
Washington, DC 20520 or by calling (202) 647-2009.
(c) Where to apply. Applications must be submitted to the Office
Director, Office of Fisheries Affairs, Bureau of Oceans and
International Environmental and Scientific Affairs, Room 5806,
Department of State, Washington, DC 20520.
(d) Application approval. Application approval will be by the
Secretary's execution of the guaranty agreement.
(Approved by the Office of Management and Budget under control number
0648-0095)
22 CFR 33.5 Guaranty agreement.
(a) Period in effect. Agreements are effective for a fiscal year
beginning October 1 and ending on the next September 30. Applications
submitted after October 1 are effective from the date the application
was mailed (determined by the postmark) through September 30.
(b) Guaranty agreement transfer. A guaranty agreement may, with the
Secretary's prior consent, be transferred when a vessel which is the
subject of a guaranty agreement is transferred to a new owner if the
transfer occurs during the agreement period.
(c) Guaranty agreement renewal. A guaranty agreement may be renewed
for the next agreement year without resubmitting an application form if
the appropriate fee for the next year is submitted in accordance with
the Secretary's annually published requirements regarding fees.
Renewals are subject to the Secretary's approval.
(d) Provisions of the agreement. The agreement will provide for
reimbursement for certain losses caused by foreign countries' seizure
and detention of U.S. fishing vessels on the basis of claims to
jurisdiction which are not recognized by the United States; on the
basis of claims to jurisdiction which are recognized by the United
States, but exercised in a manner inconsistent with international law as
recognized by the United States; or, in the case where a general claim
of exclusive fishery management authority is recognized by the United
States and a U.S. fishing vessel is seized on the basis of conditions
and restrictions which:
(1) Are unrelated to fishery conservation and management,
(2) Fail to consider traditional practices of U.S. fishing vessels,
(3) Are more onerous than those applied to foreign fishing vessels by
the United States in its exclusive economic zone, or
(4) Fail to allow U.S. fishing vessels equitable access to fishery
resources under the foreign countries' exclusive management authority.
22 CFR 33.6 Fees.
(a) General. Fees provide for administrative costs and at least one
third of the contribution by the U.S. Government, if any. Fees are set
annually on the basis of past and anticipated claim experience. The
annual agreement year for which fees are payable starts on October 1 and
ends on the following September 30.
(b) Amount and payment. The amount of each annual fee or adjusted
fee will be established by the Office Director of the Office of
Fisheries Affairs, Bureau of Oceans and International Environmental and
Scientific Affairs by publication of a notice in the Federal Register.
Each notice will establish the amount of the fee, when the fee is due,
when the fee is payable, and any special conditions surrounding
extention of prior agreements or execution of new agreements. Unless
otherwise specified in such notices, agreement coverage will commence
with the date of fee payment.
(c) Adjustment and refund. Fees may be adjusted at any time to
reflect actual seizure and detention experience for which claims are
anticipated. Failure to submit adjusted fees will result in agreement
termination as of the date the adjusted fee is payable. No fees will be
refunded after an agreement is executed by the Secretary.
(d) Disposition. All fees will be deposited in the Fishermen's
Guaranty Fund. They will remain available without fiscal year
limitation to carry out section 7 of the Act. Claims will be paid first
from fees and then from appropriated funds. Fees not required to pay
administrative costs or claims may be invested in U.S. obligations. All
earnings will be credited to the Fishermen's Guaranty Fund.
22 CFR 33.7 Conditions for claims.
(a) Unless there is clear and convincing credible evidence that the
seizure did not meet the requirements of the Act, payment of claims will
be made when:
(1) A covered vessel is seized by a foreign country under conditions
specified in the Act and the guaranty agreement, and
(2) The incident occurred during the period the guaranty agreement
was in force for the vessel involved.
(b) Payments will be made to the owner for:
(1) All actual costs (except those covered by section 3 of the Act or
reimbursable from some other source) incurred by the owner during the
seizure or detention period as a direct result thereof, including:
(i) Damage to, or destruction of, the vessel or its equipment, or
(ii) Loss or confiscation of the vessel or its equipment, and
(iii) Dockage fees or utilities;
(2) The market value of fish or shellfish caught before seizure of
the vessel and confiscated or spoiled during the period of detention;
and
(3) Up to 50 percent of the vessel's gross income lost because of the
seizure and detention.
(c) Exceptions. No payment will be made from the Fund for a seizure
which is:
(1) Covered by any other provision of law (for example, fines,
license fees, registration fees, or other direct charges payable under
Section 3 of the Act),
(2) Made by a country at war with the United States,
(3) In accordance with any applicable convention or treaty, if that
treaty or convention was made with the advice and consent of the Senate
and was in force and effect for the United States and the seizing
country at the time of the seizure,
(4) Which occurs before the guaranty agreement's effective date or
after its termination,
(5) For which other possible sources of alternative reimbursement
have not first been fully pursued (for example, the insurance coverage
required by the agreement and valid claims under any law), or
(6) For which material requirements of the guaranty agreement, the
Act, or the program regulations have not been fully fulfilled.
22 CFR 33.8 Claim procedure.
(a) Where and when to apply. Claims must be submitted to the Office
Director, Office of Fisheries Affairs, Bureau of Oceans and
International Environmental and Scientific Affairs, Room 5806,
Department of State, Washington, D.C. 20520. They must be submitted
within 90 days after the vessel's release. Requests for extension of
the filing deadline must be in writing and approved by the Office
Director, Office of Fisheries Affairs, Bureau of Oceans and
International Environmental and Scientific Affairs.
(b) Contents of claim. All material allegations of a claim must be
supported by documentary evidence. Foreign language documents must be
accompanied by an authenticated English translation. Claims must
include the following:
(1) The captain's sworn statement about the exact location and
activity of the vessel when seized;
(2) Certified copies of charges, hearings, and findings by the
government seizing the vessel;
(3) A detailed computation of all actual costs directly resulting
from the seizure and detention, supported by receipts, affidavits, or
other documentation acceptable to the Office Director, Office of
Fisheries Affairs, Bureau of Oceans and International Environmental and
Scientific Affairs;
(4) A detailed computation of lost income claimed, including
(i) The date and time seized and released,
(ii) The number of miles and running time from the point of seizure
to the point of detention,
(iii) The total fishing time lost (explain in detail if lost fishing
time claimed is any greater than the elapsed time from seizure to the
time required after release to return to the point of seizure),
(iv) The tonnage of catch on board at the time of seizure,
(v) The vessel's average catch-per-day's fishing for the three
calendar years preceding the seizure,
(vi) The vessel's average downtime between fishing trips for the
three calendar years preceding the seizure, and
(vii) The price-per-pound for the catch on the first day the vessel
returns to port after the seizure and detention, unless there is a
pre-negotiated price-per-pound with a processor, in which case the
pre-negotiated price must be documented; and
(5) Documentation for confiscated, damaged, destroyed, or stolen
equipment, including:
(i) The date and cost of acquisition, supported by invoices or other
acceptable proof of ownership, and
(ii) An estimate from a commercial source of the replacement or
repair cost.
(c) Burden of proof. The claimant has the burden of proving all
aspects of the claim, except in cases of dispute over the facts of the
seizure where the claimant shall have the presumption that the seizure
was eligible unless there is clear and convincing credible evidence that
the seizure did not meet the eligibility standards of the statute.
22 CFR 33.9 Amount of award.
(a) Lost fishing time. Compensation is limited to 50 percent of the
gross income lost as a direct result of the seizure and detention, based
on the value of the average catch-per-day's fishing during the three
most recent calendar years immediately preceding the seizure. The
compensable period for cases of seizure and detention not resulting in
vessel confiscation is limited to the elapsed time from seizure to the
time after release when the vessel could reasonably be expected to
return to the point of seizure. The compensable period in cases where
the vessel is confiscated is limited to the elapsed time from seizure
through the date of confiscation, plus an additional period to purchase
a replacement vessel and return to the point of seizure. In no case can
the additional period exceed 120 days.
(1) First method (this method must use annual catch divided by 365
days to calculate catch-per-day):
(i) Multiply days lost as a direct result of seizure and detention by
average catch-per-day during last three calendar years,
(ii) Multiply amount in paragraph (a)(1)(i) of this section by market
price, and
(iii) Divide by two to get the maximum compensable amount, or,
(2) Second method (always use IATTC statistics for all calculations):
(i) Subtract tonnage aboard at time of seizure from highest trip
tonnage during last three calendar years,
(ii) Divide amount in paragraph (a)(2)(i) of this section by average
catch-per-day during last three calendar years to get remaining fishing
days required to fill vessel,
(iii) Subtract amount in paragraph (a)(2)(ii) of this section from
number of days detained,
(iv) If amount in paragraph (a)(2)(iii) of this section is negative
or zero, multiply number of days detained by average catch-per-day
during last three calendar years (if not go on to paragraph (a)(2)(v) of
this section),
(v) If amount in paragraph (a)(2)(iii) in this section is positive
and is equal to or less than average downtime, multiply amount in
paragraph (a)(2)(ii) of this section by average catch-per-day during
last three calendar years (if not, go on to paragraph (a)(2)(vi) of this
section),
(vi) If amount in paragraph (a)(2)(iii) in this section is positive
and is greater than average downtime, subtract average downtime and
multiply the sum of this amount and the amount in paragraph (a)(2)(ii)
of this section by the average catch-per-day during last three calendar
years (subtract additional downtime each time the sum computed in this
manner exceeds average trip time during last three calendar years),
(vii) Multiply amount in paragraph (a)(2) (iv), (v), or (vi) of this
section, whichever is applicable, by market price, and
(viii) Divide by two to get the maximum compensable amount.
(b) Value of catch loss by weight class and grade. Each seizure
claim submitted must contain a copy of the catch landing receipt for the
trip preceding the seizure. This document provides a detailed size and
species mix and the price paid per weight class for each grade (e.g.,
standard grade yellowfin over 7 1/2 lbs @ $1,200/ton, and standard grade
yellowfin under 7 1/2 lbs @ $1,100/ton, plus $30/ton for premium grade
or less $60/ton for minimum grade). The Secretary will determine from
the catch landing receipt an average by weight and grade class of the
amount of catch on the trip prior to the seizure, apply this percentage
to the average catch per day's fishing (IATTC's figure), and arrive at a
figure relating to the approximate catch for each applicable species.
The following method will be used:
(1) The relative percentage for each weight and grade class will be
determined by dividing each weight and grade class by the sum of them
all, and
(2) IATTC's catch rate will be multiplied by each weight and grade
class percentage to arrive at an average for each weight and grade
class. The average for each weight and grade class will be multiplied
by the relative price per pound (for each class) to determine the value
per weight and grade class.
(c) Stolen or confiscated property. Confiscation of property which
the claimant was required to buy from the confiscator is reimbursable by
the Department under Section 3 of the Act. Any other property
confiscated is reimbursable from this Guaranty Fund. Confiscated
property is divided into the following categories:
(1) Compensation for confiscation of vessels, where no buy-back has
occurred, will be based on market value which will be determined by
averaging estimates of market value obtained from as many vessel
surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than vessel, will be
based on depreciated replacement cost;
(3) Compensation for expendable items and crew's belongings will be
50 percent of their replacement costs; and
(4) Compensation for confiscated catch will be for full value, based
on the price-per-pound;
(d) Fuel expense. Compensation for fuel expenses will be based on
the purchase price, the time required to run to and from the fishing
grounds, the detention time in port, and the documented fuel consumption
of the vessel.
(e) Insurance proceeds. No payments will be made from the Fund for
losses covered by any policy of insurance or other provisions of law.
(f) Appeals. All determinations under this section are final and are
not subject to arbitration or appeal.
22 CFR 33.10 Payments.
The Office Director, Office of Fisheries Affairs, Bureau of Oceans
and International Environmental and Scientific Affairs will pay the
claimant the amount calculated under 33.9. Payment will be made as
promptly as practicable, but may be delayed pending the appropriation of
sufficient funds. The Director shall notify the claimant of the amount
approved for payment as promptly as practicable and the same shall
thereafter constitute a valid, but non-interest bearing obligation of
the Government. Delays in payments are not a direct consequence of
seizure and detention and cannot therefore be construed as increasing
the compensable period for lost fishing time. If there is a dispute
about who should be paid what, the Director will settle it after
requesting proof of interest from all parties.
22 CFR 33.11 Records.
The Office Director, Office of Fisheries Affairs, Bureau of Oceans
and International Environmental and Scientific Affairs will have the
right to inspect claimants' books and records as a precondition to
approving claims. All claims must contain written authorization of the
guaranteed party for any international, federal, state, or local
governmental agencies to provide the Office Director, Office of
Fisheries Affairs, Bureau of Oceans and International Environmental and
Scientific Affairs any data or information pertinent to a claim.
22 CFR 33.12 Penalties.
Persons who willfully make any false or misleading statement or
representation to obtain compensation from the Fund are subject to
criminal prosecution under 22 U.S.C. 1980(g). This provides penalties up
to $25,000 or imprisonment for up to one year, or both. Any evidence of
criminal conduct will be promptly forwarded to the United States
Department of Justice for action. Additionally, misrepresentation,
concealment, and fraud, or acts intentionally designed to result in
seizure, may void the guaranty agreement.
22 CFR 33.12 PART 34 -- COLLECTION OF DEBTS
22 CFR 33.12 Subpart A -- General Provisions
Sec.
34.1 Purpose.
34.2 Scope.
34.3 Definitions.
34.4 Interest, penalty, and administrative charges.
34.5 Exceptions.
34.6 Use of procedures.
34.7 Other procedures or actions.
22 CFR 33.12 Subpart B -- Administrative Offset and Referral to
Collection Agencies
34.8 Demand for payment.
34.9 Collection by administrative offset.
34.10 Administrative offset against amounts payable for Civil Service
Retirement and Disability Fund.
34.11 Collection in installments.
34.12 Exploration of compromise.
34.13 Suspending or terminating collection action.
34.14 Referrals to the Department of Justice or the General
Accounting Office.
34.15 Collection services.
22 CFR 33.12 Subpart C -- Salary Offset
34.16 Scope.
34.17 Coordinating offset with another federal agency.
34.18 Notice requirements before offset.
34.19 Request for a hearing.
34.20 Hearings.
34.21 Review of STATE records related to the debt.
34.22 Written agreement to repay as alternative to salary offset.
34.23 Procedures for salary offset.
34.24 Non-waiver of rights by payments.
34.25 Refunds.
Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 22 U.S.C. 2658; 22
U.S.C. 3926; 4 CFR parts 101-105; 5 CFR part 550
Source: 54 FR 13365, Apr. 3, 1989, unless otherwise noted.
22 CFR 33.12 Subpart A -- General Provisions
22 CFR 34.1 Purpose.
These regulations prescribe the procedures to be used by the United
States Department of State (STATE) in the collection of claims owed to
STATE and to the United States.
22 CFR 34.2 Scope.
(a) Applicability of Federal Claims Collection Standards (FCCS).
Except as set forth in this part or otherwise provided by law, STATE
will conduct administrative actions to collect claims (including offset,
compromise, suspension, termination, disclosure and referral) in
accordance with the FCCS of the General Accounting Office and Department
of Justice, 4 CFR parts 101-105.
(b) This part is not applicable to:
(1) Claims against any foreign country or any political subdivision
thereof, or any public international organization.
(2) Claims where the STATE Comptroller or his designee determines
that the achievement of the purposes of any provision of law
administered by STATE require a different course of action.
22 CFR 34.3 Definitions.
(a) A debt or claim refers to an amount of money which has been
determined to be owed to the United States from any person, organization
or entity, except another Federal Agency. A debtor's liability arising
from a particular contract or transaction shall be considered a single
claim for purposes of the monetary ceilings of the FCCS.
(b) Delinquent means a debt that has not been paid by the date
specified in STATE's written notification or applicable contractual
agreement, unless other satisfactory arrangements have been made by that
date, or that has not been in accordance with a payment agreement with
STATE.
(c) 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 life and health insurance benefits
and such other deductions that are required by law to be withheld
including garnishments.
22 CFR 34.4 Interest, penalty, and administrative charges.
(a) Except as otherwise provided by statute, contract or excluded in
accordance with FCCS, STATE will assess:
(1) Interest on unpaid claims in accordance with existing Treasury
rules and regulations.
(2) Penalty charges at 6 percent a year on any portion of a claim
that is delinquent for more than 90 days.
(3) Administrative charges to cover the costs of processing and
calculating delinquent claims.
(4) Late payment charges shall be computed from the date of mailing
or hand delivery of the notice of the claim and interest requirements.
(5) When a debt is paid in partial or installment payments, amounts
received shall be applied first to outstanding penalty and
administrative cost charges, second to accrued interest, and then to
outstanding principal.
(6) Waiver. STATE shall consider waiver of interest, penalty charges
and/or administrative charges in accordance with the FCCS, 4 CFR
102.13(g).
22 CFR 34.5 Exceptions.
(a) Claims arising from the audit of transportation accounts pursuant
to 31 U.S.C. 3726 shall be determined, collected, compromised,
terminated, or settled in accordance with the regulations published
under 31 U.S.C. 3726 (see 41 CFR part 101-41).
(b) Claims arising out of acquisition contracts subject to the
Federal Acquisition Regulation (FAR) shall be determined, collected,
compromised, terminated, or settled in accordance with those regulations
(see 48 CFR part 32).
(c) Claims based in whole or in part on conduct in violation of the
antitrust laws, or in regard to which there is an indication of fraud,
presentation of a false claim, or misrepresentation on the part of the
debtor or any other party having an interest in the claim, shall be
referred to the Department of Justice for compromise, suspension, or
termination of collection action.
(d) Tax claims are excluded from the coverage of this regulation.
22 CFR 34.6 Use of procedures.
Procedures authorized by this regulation (including but not limited
to referral to a debt collection agency, administrative offset, or
salary offset) may be used singly or in combination.
22 CFR 34.7 Other procedures or actions.
(a) Nothing contained in this regulation is intended to require STATE
to duplicate administrative proceedings required by contract or other
laws or regulations.
(b) Nothing in this regulation is intended to preclude utilization of
informal administrative actions or remedies which may be available.
(c) Nothing contained in this regulation is intended to deter STATE
from demanding the return of specific property or from demanding the
return of the property or the payment of its value.
(d) The failure of STATE to comply with any provision in this
regulation shall not serve as defense to the debt.
22 CFR 34.7 Subpart B -- Administrative Offset and Referral to Collection Agencies
22 CFR 34.8 Demand for payment.
(a) A total of three progressively stronger written demands at
approximately 30-day intervals will normally be made, unless a response
or other information indicates that additional written demands would
either be unnecessary or futile. When necessary to protect the
Government's interest, written demand may be preceded by other
appropriate actions under the FCCS, including immediate referral for
litigation and/or offset.
(b) The initial written demand for payment shall inform the debtor
of:
(1) The basis of the claim;
(2) The amount of the claim;
(3) The date when payment is due 30-days from the date of mailing or
hand delivery of the initial demand for payment;
(4) The provision for late payment (interest), penalty and
administrative charges, if payment is not received by the due date.
22 CFR 34.9 Collection by administrative offset.
(a) Offset will be used whenever feasible and not otherwise
prohibited. Offset is not required to be used in every instance and
consideration should be given to the debtor's financial condition and
the impact of offset on STATE programs or projects.
(b) The procedures for offset in this section do not apply to the
offset of Federal salaries under 5 U.S.C. 5514.
(c) Before offset is made, STATE will provide the debtor with written
notice informing the debtor of:
(1) The nature and amount of the claim;
(2) The intent of STATE to collect by administrative offset,
including asking the assistance of other Federal agencies to help in the
offset whenever possible, if the debtor has not made payment by the
payment due date or has not made an arrangement for payment by the
payment due date;
(3) The right of the debtor to inspect and copy STATE's records of
the claim;
(4) The right of the debtor to a review of the claim within STATE.
If the claim is disputed in full or part, the debtor shall respond to
the demand in writing by making a request by the payment due date stated
within the notice to the billing office for a review of the claim within
STATE. The debtor's written response shall state the basis for the
dispute. If only part of the claim is disputed, the undisputed portion
must be paid by the date stated in the notice to avoid late payment,
penalty and administrative charges. If STATE either sustains or amends
its determination, it shall notify the debtor of its intent to collect
the claim, with any adjustments based on the debtor's response by
administrative offset unless payment is received within 30-days of the
mailing of the notification of its decision following a review of the
claim.
(5) The right of the debtor to offer to make a written agreement to
repay the amount of the claim.
(6) The notice of offset need not include the requirements of
paragraphs (c) (3), (4), or (5) of this section if the debtor has been
informed of the requirements at an earlier stage in the administrative
proceedings, e.g., if they were included in a final contracting
officer's decision.
(d) STATE will promptly make requests for offset to other agencies
known to be holding funds payable to a debtor and, when appropriate,
place the name of the debtor on the ''List of Contractors Indebted to
the United States''. STATE will provide instructions for the transfer
of funds.
(e) STATE will promptly process requests for offset from other
agencies and transfer funds to the requesting agency upon receipt of the
written certification that the person owes the debt and that, if a
Federal employee, the employee has been given the procedural rights
required by 5 USC 5514 and 5 CFR part 550, subpart K.
22 CFR 34.10 Administrative offset against amounts payable for Civil
Service Retirement and Disability Fund.
(a) Unless otherwise prohibited by law, STATE may request that monies
that are due and payable to a debtor from the Civil Service Retirement
and Disability Fund, Federal Employee Retirement Fund, or the Foreign
Service Retirement Fund be administratively offset in reasonable amounts
in order to collect in one full payment or a minimal number of payments,
debts owed the United States by the debtor. Such requests shall be made
to the appropriate officials of the respective fund servicing agency in
accordance with such regulations as may be prescribed by the Director of
that agency.
(b) When making a request for administrative offset under paragraph
(a) of this section, STATE shall include written statements that:
(1) The debtor owes the United States a debt, including the amount of
the debt.
(2) STATE has complied with the applicable statutes, regulations, and
procedures of the respective fund servicing agencies.
(3) STATE has complied with the requirements of 34.9 of this part.
(c) Once STATE decides to request offset under paragraph (a) of this
section, it will make the request as soon as practical after completion
of the applicable procedures in order that the fund servicing agency may
identify the debtor's account in anticipation of the time when the
debtor requests or becomes eligible to receive payments from the fund.
This will satisfy any requirements that offset will be initiated prior
to expiration of the applicable statute of limitations.
(d) If STATE collects part or all of the debt by other means before
deductions are made or completed pursuant to paragraph (a) of this
section, STATE shall act promptly to modify or terminate its request for
offset under paragraph (a) of this section.
(e) This section does not require or authorize the fund servicing
agency to review the merits of the STATE determination relative to the
amount and validity of the debt, its determination on waiver under an
applicable statute, or its determination whether to provide an oral
hearing.
22 CFR 34.11 Collection in installments.
Whenever feasible, and except as required otherwise by law, debts
owed to the United States, together with interest, penalties, and
administrative costs as required by this regulation, should be collected
in one lump sum. This is true whether the debt is being collected under
administrative offset or by another method, including voluntary payment.
However, if the debtor is financially unable to pay the indebtedness in
one lump sum, payment may be accepted in regular installments. If STATE
agrees to accept payment in installments, it will obtain a legally
enforceable written agreement from the debtor that 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 the
payments should bear a reasonable relation to the size of the debt and
ability of the debtor to pay. If possible the installment payments
should be sufficient in size and frequency to liquidate the Government's
claim within 3 years.
22 CFR 34.12 Exploration of compromise.
STATE may attempt to effect compromise in accordance with the
standards set forth in Part 103 of the FCCS (4 CFR part 103).
22 CFR 34.13 Suspending or terminating collection action.
The suspension or termination of collection action shall be made in
accordance with the standards set forth in Part 104 of the FCCS (4 CFR
part 104).
22 CFR 34.14 Referrals to the Department of Justice or the General
Accounting Office.
Referrals to the Department of Justice or the General Accounting
Office shall be made in accordance with the standards set forth in Part
105 of the FCCS (4 CFR part 105).
22 CFR 34.15 Collection services.
(a) STATE has authority to contract for collection services to
recover delinquent debts in accordance with 31 U.S.C. 3718(c) and Part
102 of the FCCS (4 CFR part 102).
(b) STATE may disclose delinquent debts, other than delinquent debts
of current Federal employees, to consumer reporting agencies in
accordance with 31 U.S.C. 3711(f) and the FCCS.
(c) STATE will not use a collection agency to collect a debt owed by
a currently employed or retired Federal employee, if collection by
salary or annuity offset is available.
22 CFR 34.15 Subpart C -- Salary Offset
22 CFR 34.16 Scope.
(a) This subpart sets forth STATE's procedures for the collection of
a Federal employee's pay by salary offset to satisfy certain valid and
past due debts owed the United States Government.
(b) This subpart applies to:
(1) Current employees of STATE and other agencies who owe debts to
STATE;
(2) Current employees of STATE who owe debts to other agencies.
(c) This subpart does not apply to debts or claims arising under the
Internal Revenue Code of 1954 (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) This subpart does 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 or
ministerial adjustments in pay, if the amount to be recovered was
accumulated over four pay periods or less.
(e) These regulations do not preclude an employee from:
(1) Requesting waiver of erroneous payment of salary, travel,
transportation or relocation expense and allowances;
(2) Requesting waiver of any other type of debt, if waiver is
available by statute; or
(3) Questioning the amount or validity of a debt by submitting a
subsequent claim to the General Accounting Office.
(f) Nothing in these regulations precludes the compromise, suspension
or termination of collection actions where appropriate under Subpart A
or other regulations.
22 CFR 34.17 Coordinating offset with another federal agency.
(a) When STATE is owed a debt by an employee of another agency, the
other agency shall not initiate the requested offset until STATE
provides the agency with a written certification that the debtor owes
STATE a debt (including the amount and basis of the debt and the due
date of payment) and that STATE has complied with these regulations.
(b) When another agency is owed the debt, STATE may use salary offset
against one of its employees who is indebted to another agency, if
requested to do so by that agency. Such request must be accompanied by
a certification that the person owes the debt (including the amount and
basis of the debt and the due date of payment) and that the agency has
complied with its regulations as required by 5 U.S.C. 5514 and 5 CFR
part 550, subpart K.
22 CFR 34.18 Notice requirements before offset.
Except as provided in 34.16, salary offset deductions will not be
made unless STATE first provides the employee with a written notice that
he/she owes a debt to the Federal Government at least 30 calendar days
before salary offset is to be initiated. When STATE is the creditor
agency, this notice of intent to offset an employee's salary shall be
hand-delivered or sent by certified mail to the most current address
that is available to the Department and will state:
(a) That STATE has reviewed the records relating to the debt and has
determined that the debt is owed, its origin and nature, and the amount
due;
(b) The intention of STATE to collect the debt by means of deduction
from the employee's current disposable pay 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) The requirement to assess and collect interest, penalties, and
administrative costs, or waiver are in accordance with 34.4, unless
excused in accordance with 34.4(a)(6);
(e) The employee's right to inspect and copy any STATE records
relating to the debt, or, if the employee or their representative cannot
personally inspect the records, to request and receive a copy of such
records;
(f) The opportunity (under terms agreeable to STATE) to enter into a
written agreement establishing a repayment schedule of the debt in lieu
of offset;
(g) The right to a hearing conducted by an official (administrative
law judge or a hearing official not under the control of STATE) with
respect to the existence 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 request for a hearing is filed by the
employee as prescribed in 34.19;
(h) That the timely filing of a request for hearing within 30
calendar days after receipt of the notice of intent to offset will stay
the commencement of collection proceedings;
(i) That the Department will initiate procedures to implement a
salary offset, as appropriate, (which may not exceed 15 percent of the
employee's disposable pay) not less than thirty (30) days from the date
of receipt of the notice of debt, unless the employee files a timely
petition for a hearing;
(j) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than 60 days
after the filing of the request for a hearing unless the employee
requests and the hearing official grants a delay in the proceedings;
(k) That any knowingly false or frivolous statements, representation,
or evidence may subject the employee to disciplinary procedures (5
U.S.C. Chapter 75, 5 CFR part 752 or other applicable statutes or
regulations); penalties (31 U.S.C. 3729-3731 or other applicable
statutes or regulations); or criminal penalties (18 U.S.C. 286, 287,
1001, and 1002 or other applicable statutes or regulations);
(l) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made;
(m) That the amounts paid on or deducted from the debt which are
later waived or found not owed to the United States will be promptly
refunded to the employee, unless there are applicable contractual or
statutory provisions to the contrary;
(n) The method and time period for requesting a hearing; and
(o) The name and address of the STATE official to whom communications
should be directed.
(54 FR 13365, Apr. 3, 1989; 54 FR 28416, July 16, 1989)
22 CFR 34.19 Request for a hearing.
(a) Except as provided in paragraph (c) of this section, an employee
must file a request for a hearing that is received by STATE not later
than 30 calendar days from the date of STATE's notice described in
34.18 if an employee wants a hearing concerning:
(1) The existence or amount of the debt; or
(2) STATE's proposed offset schedule.
(b) The request must be signed by the employee and should identify
and explain with reasonable specificity and brevity the facts, evidence
and witnesses which the employee believes support his or her position.
If the employee objects to the percentage of disposable pay to be
deducted from each check, the request should state the objection and the
reasons for it.
(c) The employee must also specify whether an oral or paper hearing
is requested. If an oral hearing is desired, the request should explain
why the matter cannot be resolved by review of the documentary evidence
alone.
(d) If the employee files a request for hearing later than the
required 30 calendar days as described in paragraph (a) of this section,
the hearing officer may accept the request if the employee can show that
the delay was because of circumstances beyond his or her control or
because of failure to receive notice of the filing deadline (unless the
employee has actual notice of the filing deadline).
(e) An employee waives the right to a hearing and will have his or
her disposable pay offset if the employee fails to file a petition for a
hearing as prescribed in paragraph (a) of this section or fails to
appear at the scheduled hearing.
22 CFR 34.20 Hearings.
(a) If an employee timely files a request for a hearing under 34.19,
STATE shall select the time, date, and location of the hearing.
(b) Hearings shall be conducted by a hearing official not under the
control or authority of STATE.
(c) Procedure.
(1) After the employee requests a hearing, the hearing official or
administrative law judge shall notify the employee of the form of the
hearing to be provided. If the hearing will be oral, notice shall set
forth the date, time and location of the hearing. If the hearing will
be paper, the employee shall be notified that he or she should submit
arguments in writing to the hearing official or administrative law judge
by a specified date after which the record shall be closed. This date
shall give the employee reasonable time to submit documentation.
(2) Oral hearing. An employee who requests an oral hearing shall be
provided an oral hearing if the hearing official or administrative law
judge determines that the matter cannot be resolved by review of
documentary evidence alone (e.g. when an issue of credibility or
veracity is involved). The hearing is not an adversarial adjudication,
and need not take the form of an evidentiary hearing. Oral hearings may
take the form of, but are not limited to:
(i) Informal conferences with the hearing official or administrative
law judge, in which the employee and agency representative will be given
full opportunity to present evidence, witnesses, and argument;
(ii) Informal meetings with an interview of the employee; or
(iii) Formal written submissions, with an opportunity for oral
presentation.
(3) Paper hearing. If the hearing official or administrative law
judge determines that an oral hearing is not necessary, he or she will
make the determination based upon a review of the available written
record (5 U.S.C. 5514).
(4) Record. The hearing official must maintain a summary record of
any hearing provided by this subpart. See 4 CFR 102.3. Witnesses who
testify in oral hearings will do so under oath or affirmation.
(5) Content of decision. The written decision shall include:
(i) A statement of the facts presented to support the origin, nature,
and amount of the debt;
(ii) The hearing official's findings, analysis, and conclusions; and
(iii) The terms of any repayment schedules, if applicable.
(6) Failure to appear. In the absence of good cause shown (e.g.
excused illness), an employee who fails to appear at a hearing shall be
deemed, for the purpose of this subpart, to admit the existence and
amount of the debt as described in the notice of intent. The hearing
official shall schedule a new hearing date upon the request of the
creditor agency representative when good cause is shown. Both parties
shall be given reasonable notice of the time and place of the new
hearing.
(54 FR 13365, Apr. 3, 1989; 54 FR 28416, July 16, 1989)
22 CFR 34.21 Review of STATE records related to the debt.
(a) Notification by employee. An employee who intends to inspect or
copy agency records related to the debt must send a letter to the
official designated in 34.18(o) stating his or her intention. The
letter must be received by STATE within 30 calendar days after receipt
of the notice of intent to offset.
(b) STATE's response. In response to a timely notice submitted by
the debtor as described in paragraph (a) of this section, STATE will
notify the employee of the location and time when the employee may
inspect and copy STATE records related to the debt.
22 CFR 34.22 Written agreement to repay as alternative to salary
offset.
(a) Notification by employee. The employee may propose, in response
to the notice of intent to offset, a written agreement to repay the debt
as an alternative to salary offset. The proposal shall admit the
existence of the debt and set forth a proposed repayment schedule. Any
employee who wishes to do this must submit a proposed written agreement
to repay the debt which is received by STATE within 30 calendar days of
the notice.
(b) STATE's response. STATE will notify the employee whether the
proposed written agreement for repayment is acceptable. It is within
STATE's discretion to accept a repayment agreement instead of proceeding
by offset.
(c) Procedures. If the employee and STATE enter into a written
agreement to repay instead of salary offset, the debt will be repaid in
accordance with the agreement provisions and the procedures of 34.23
will not apply.
22 CFR 34.23 Procedures for salary offset.
Unless STATE agrees and regulations do not provide otherwise, the
following procedures apply:
(a) Method. Salary offset will be made by deduction at one or more
officially established pay intervals from the current pay account of the
employee without his or her consent.
(b) Source. The source of salary offset is current disposable pay
which is that part of current basic pay, special pay, retainer pay, or
in the case of an employee not entitled to pay, other authorized pay
remaining after the deduction of any amount required by law to be
withheld.
(c) Types of collection -- (1) Lump sum payment. Ordinarily debts
will be collected by salary offset in one lump sum if possible.
However, if the employee is financially unable to pay in one lump sum or
the amount of the debt exceeds 15 percent of disposable pay for an
officially established pay interval, the collection by salary offset
must be made in installment deductions.
(2) Installment deductions. (i) The size of installment deductions
must bear a reasonable relation to the size of the debt and the
employee's ability to pay. If possible the size of the deduction will
be that necessary to liquidate the debt in no more than 1 year.
However, the amount deducted for any period must not exceed 15 percent
of the disposable pay from which the deduction is made, except as
provided by other regulations or unless the employee has agreed in
writing to a greater amount.
(ii) Installment payments of less than $25 per pay period will be
accepted only in the most unusual circumstances.
(iii) Installment deductions will be made over a period of not
greater than the anticipated period of employment.
(d) When deductions may begin. (1) Salary offset will begin on the
date stated in the notice as provided in 34.18, unless a hearing is
requested.
(2) If there has been a timely request for a hearing, salary offset
will begin as of the date stated in the written decision.
(e) Additional offset provisions -- (1) Liquidation from final check.
If employment ends before salary offset is completed, the remaining
debt will be liquidated by offset from payment of any nature due the
employee from STATE (e.g. final salary payment, lump-sum leave, etc.).
(2) Offset from other payments. If the debt cannot be liquidated by
offset from any final check, the remaining debt will be liquidated by
offset from later payments of any kind due the former employee from the
United States, inclusive of retirement or disability funds pursuant to
34.10 of this regulation.
22 CFR 34.24 Non-waiver of rights by payments.
So long as there are no statutory or contractual provision to the
contrary, no employee payment (of all or a portion of a debt) collected
under this subpart will be interpreted as a waiver of any rights that
the employee may have under 5 U.S.C. 5514.
22 CFR 34.25 Refunds.
(a) STATE will refund promptly to the appropriate individual amounts
offset under this regulation when:
(1) A debt is waived or otherwise found not owing the United States
(unless expressly prohibited by statute or regulation); or
(2) STATE is directed by an administrative or judicial order to make
a refund.
(b) Refunds do not bear interest unless required or permitted by law
or contract.
22 CFR 34.25 PART 35 -- PROGRAM FRAUD CIVIL REMEDIES
Sec.
35.1 General.
35.2 Definitions.
35.3 Basis for civil penalties and assessments.
35.4 Investigation.
35.5 Review by the reviewing official.
35.6 Prerequisites for issuing a complaint.
35.7 Complaint.
35.8 Service of complaint.
35.9 Answer.
35.10 Default upon failure to file an answer.
35.11 Referral of complaint and answer to the ALJ.
35.12 Notice of hearing.
35.13 Parties to the hearing.
35.14 Separation of functions.
35.15 Ex parte contacts.
35.16 Disqualification of reviewing official or ALJ.
35.17 Rights of parties.
35.18 Authority of the ALJ.
35.19 Prehearing conferences.
35.20 Disclosure of documents.
35.21 Discovery.
35.22 Exchange of witness lists, statements and exhibits.
35.23 Subpoenas for attendance at hearing.
35.24 Protective order.
35.25 Fees.
35.26 Form, filing and service of papers.
35.27 Computation of time.
35.28 Motions.
35.29 Sanctions.
35.30 The hearing and burden of proof.
35.31 Determining the amount of penalties and assessments.
35.32 Location of hearing.
35.33 Witnesses.
35.34 Evidence.
35.35 The record.
35.36 Post-hearing briefs.
35.37 Initial decision.
35.38 Reconsideration of initial decision.
35.39 Appeal to authority head.
35.40 Stays ordered by the Department of Justice.
35.41 Stay pending appeal.
35.42 Judicial review.
35.43 Collection of civil penalties and assessments.
35.44 Right to administrative offset.
35.45 Deposit in Treasury of United States.
35.46 Compromise or settlement.
35.47 Limitations.
Authority: 31 U.S.C. 3801-3812.
Source: 55 FR 23424, June 8, 1990, unless otherwise noted.
22 CFR 35.1 General.
(a) Basis. This part implements the Program Fraud Civil Remedies Act
of 1986, Public Law 99-509, sections. 6101-6104, 100 Stat. 1874
(October 21, 1986), 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 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 specifies the hearing and appeal rights of persons
subject to allegations of liability for such penalties and assessments.
(c) Special considerations abroad. Where a party, witness or
material evidence in a proceeding under these regulations is located
abroad, the investigating official, reviewing official or ALJ, as the
case may be, may adjust the provisions below for service, filing of
documents, time limitations, and related matters to meet special
problems arising out of that location.
22 CFR 35.2 Definitions.
(a) ALJ means an Administrative Law Judge in the authority appointed
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5
U.S.C. 3344.
(b) Authority means the United States Department of State.
(c) Authority head means the Under Secretary for Management.
(d) Benefit means, in the context of ''statement,'' anything of
value, including but not limited to, any advantage, preference,
privilege, license, permit, favorable decision, ruling, status, or loan
gurarantee.
(e) Claim means any request, demand, or submission --
(1) Made to the authority for property, services, or money (including
money representing grants, loans, insurance, or benefits);
(2) Made to a recipient of property, services, or money from the
authority or to a party to a contract with the authority --
(i) For property or services if the United States --
(A) Provided such property or services;
(B) Provided any portion of the funds for the purchase of such
property or services; or
(C) Will reimburse such recipient or party for the purchase of such
property or services; or
(ii) For the payment of money (including money representing grants,
loans, insurance or benefits) if the United States --
(A) Provided any portion of the money requested or demanded; or
(B) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(3) Made to the authority which has the effect of decreasing an
obligation to pay or account for property, services or money.
(f) Complaint means the administrative complaint served by the
reviewing official on the defendant under 35.7.
(g) Defendant means any person alleged in a complaint under 35.7 to
be liable for a civil penalty or assessment under 35.3.
(h) Department means the Department of State.
(i) Government means the United States Government.
(j) Individual means a natural person.
(k) Initial decision means the written decision of the ALJ required
by 35.10 or 35.37, and includes a revised initial decision issued
following a remand or a motion for reconsideration.
(l) Investigating official means the Inspector General of the
Department of State or an officer or employee of the Office of 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.
(m) Knows or has reason to know means that a person, with respect to
a claim or statement --
(1) Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
(2) Acts in deliberate ignorance of the truth or falsity of the claim
or statement; or
(3) Acts in reckless disregard of the truth or falsity of the claim
or statement.
(n) 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.
(o) Person means any individual, partnership, corporation,
association or private organization, and includes the plural of the
term.
(p) Representative means an 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.
(q) Representative for the Authority means the Counsel to the
Inspector General.
(r) Reviewing official means the chief Financial Officer of the
Department or her or his designee who is --
(1) Not subject to supervision by, or required to report to, the
investigating official;
(2) Not employed in the organizational unit of the authority in which
the investigating official is employed; and
(3) 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.
(s) Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made --
(1) With respect to a claim or to obtain the approval or payment of a
claim (including relating to eligibility to make a claim); or
(2) With respect to (including relating to eligibility for) --
(i) A contract with, or a bid or proposal for a contract with; or
(ii) A grant, loan or benefit from, the authority, or any state,
political subdivision of a state, or other party, if the United States
Government provides any portion of the money or property under such
contract or for such grant, loan, or benefit, or if the Government will
reimburse such state, political subdivision, or party for any portion of
the money or property under such contract or for such grant, loan, or
benefit.
22 CFR 35.3 Basis for civil penalties and assessments.
(a) Claims. (1) Except as provided in paragraph (c) of this section,
any person who makes a claim that the person knows or has reason to know
the following 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:
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any written statement which asserts
a material fact which is false, fictitious, or fraudulent;
(iii) Includes or is supported by any written statement that --
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result of such omission;
and
(C) Is a statement in which the person making the 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.
(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 any payment (including transferred
property or provided services) on a claim, a person subject to a civil
penalty under paragraph (a)(1) of this section 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 this section. Such assessment shall be in lieu of damages
sustained by the Government because of such claim.
(b) Statements. (1) Except as provided in paragraph (c) of this
section, 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 mateial
fact that the person making the statment 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 under this section.
(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 provided services),
an assessment may be imposed against any such person or jointly and
severally against any combination of such persons.
22 CFR 35.4 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, in
the case of a subpoena to be served outside the jurisdiction of the
United States, the basis for such service), 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 the documents sought have been produced,
or that such documents are not available and the reasons therefore, or
that such documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
(b) If the investigating official concludes that an action under the
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
preclude or limit such official's discretion to defer or postpone a
report or referral to the reviewing official to avoid interference with
a criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an
investigating official to report violations of criminal law to the
Attorney General.
22 CFR 35.5 Review by the reviewing official.
(a) If, based on the report of the investigating official under
35.4(b), the reviewing official determines that there is adequate
evidence to believe that a person is liable under 35.3 of this part,
the reviewing official shall transmit to the Attorney General a written
notice of the reviewing official's intention to issue a complaint under
35.7.
(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 35.3;
(5) A statement of any exculpatory or mitigating circumstances that
may relate to the claims or statements known by the reviewing official
or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting an
appropriate amount of penalties and assessments.
22 CFR 35.6 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under 35.7 only if
--
(1) The Department of Justice approves the issuance of a complaint in
a written statement described in 31 U.S.C. 3803(b)(1); and
(2) In the case of allegations of liability under 35.3(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 35.3(a) does not exceed $150,000.
(b) For 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's
claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money, or the value of property or services,
demanded or requested.
22 CFR 35.7 Complaint.
(a) On or after the date the Department of Justice approves the
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the
reviewing official may serve a complaint on the defendant, as provided
in 35.8.
(b) The complaint shall state --
(1) The allegations of liability against the defendant, including the
statutory basis for liability, an identification of the claims or
statements that are the basis for the alleged liability, and the reasons
why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the
defendant may be held liable;
(3) Instructions for filing an answer to request a hearing, including
a specific statement of the defendant's right to request a hearing by
filing an answer and to be represented by a representative; and
(4) That failure to file an answer within 30 days of service of the
complaint will result in the imposition of the maximum amount of
penalties and assessments without right to appeal, as provided in
35.10.
(c) At the same time the reviewing official serves the complaint, he
or she shall serve the defendant with a copy of these regulations.
22 CFR 35.8 Service of complaint.
(a) Service of a complaint must be made by certified or registered
mail or by delivery in any manner authorized by Rule 4(d) of the Federal
Rules of Civil Procedure. Service is complete upon receipt.
(b) Proof of service, stating the name and address of the person on
whom the complaint was served, and the manner and date of service, may
be made by --
(1) Affidavit of the individual serving the complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging
receipt;
(3) Written acknowledgment of receipt by the defendant or his or her
representative; or
(4) In case of service abroad authenticated in accordance with the
Convention on the Service Abroad of Judicial and Extra Judicial
Documents in Civil or Commercial Matters.
22 CFR 35.9 Answer.
(a) The defendant 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 defendant --
(1) Shall admit or deny each of the allegations of liability made in
the complaint;
(2) Shall state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the
penalties and assessments should be less than the statutory maximum;
and
(4) Shall state the name, address and telephone number of the person
authorized by the defendant to act as defendant's representative, if
any.
(c) If the defendant is unable to file an answer meeting the
requirements of paragraph (b) of this section within the time provided,
the defendant may, before the expiration of 30 days from service of the
complaint, file with the reviewing official a general answer denying
liability and requesting a hearing, and a request for an extension of
time within which to file an answer meeting the requirements of
paragraph (b) of this section. The reviewing official shall file
promptly with the ALJ the complaint, the general answer denying
liability, and the request for an extension of time as provided in
35.10. For good cause shown, the ALJ may grant the defendant up to 30
additional days within which to file an answer meeting the requirements
of paragraph (b) of this section.
22 CFR 35.10 Default upon failure to file an answer.
(a) If the defendant does not file an answer within the time
prescribed in 35.9(a), the reviewing official may refer the complaint
to the ALJ.
(b) Upon the referral of the complaint, the ALJ shall promptly serve
on defendant in the manner prescribed in 35.8, a notice that an initial
decision will be issued under this section.
(c) If the defendant fails to answer, the ALJ shall assume the facts
alleged in the complaint to be true, and, if such facts established
liability under 35.3, 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 defendant 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 and binding upon the parties
30 days after it was issued.
(e) If, before such an initial decision becomes final, the defendant
files a motion with the ALJ seeking to reopen on the grounds that
extraordinary circumstances prevented the defendant from filing an
answer, the initial decision shall be stayed pending the ALJ's decision
on the motion.
(f) If, on such motion, the defendant can demonstrate extraordinary
circumstances excusing the failure to 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 defendant an
opportunity to answer the complaint.
(g) A decision of the ALJ denying a defendant's motion under
paragraph (e) of this section is not subject to reconsideration under
35.38.
(h) The defendant 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 defendant 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 defendant'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 defendant's failure to file a timely answer, the authority
head shall remand the case to the ALJ with instructions to grant the
defendant an opportunity to answer.
(l) If the authority head decides that the defendant's failure to
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.
22 CFR 35.11 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.
22 CFR 35.12 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall
promptly serve a notice of hearing upon the defendant in the manner
prescribed by 35.8. At the same time, the ALJ shall send a copy of such
notice to the representative for the Authority.
(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 defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
22 CFR 35.13 Parties to the hearing.
(a) The parties to the hearing shall be the defendant and the
Authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the
False Claims Act may participate in these proceedings to the extent
authorized by the provisions of that Act.
22 CFR 35.14 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) Except as provided in paragraph (a) of this section, the
representative for the Government may be employed anywhere in the
authority, including in the offices of either the investigating official
or the reviewing official.
22 CFR 35.15 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.
22 CFR 35.16 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify
herself or himself 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 objects
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
disq ualification in accordance with paragraph (f) of this section.
(f) If the ALJ --
(1) Determines that a reviewing official is disqualified, the ALJ
shall dismiss the complaint without prejudice;
(2) Disqualifies himself or herself, the case shall be reassigned
promptly to another ALJ; or
(3) Denies a motion to disqualify, the authority head may determine
the mater only as part of his or her review of the initial decision upon
appeal, if any.
22 CFR 35.17 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 oreal 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.
22 CFR 35.18 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 to be served within the United States requiring
the attendance of witnesses and the production of documents at
depositions or at hearings. Subpoenas to be served outside the
jurisdiction of the United States shall state on their face the
authority therefore;
(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 treaties and other
international agreements or federal statutes or regulations invalid.
22 CFR 35.19 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.
22 CFR 35.20 Disclosure of documents.
(a) Upon written request to the reviewing official, the defendant may
review any relevant and material documents, transcripts, records, and
other materials that relate to the allegations set out in the complaint
and upon which the findings and conclusions of the investigating
official under 35.4(b) are based, unless such materials are subject to
a privilege under federal law or classified pursuant to Executive Order.
Upon payment of fees for duplication, the defendant may obtain copies
of such documents.
(b) Upon written request to the reviewing official, the defendant
also may obtain a copy of all exculpatory information in the possession
of the reviewing official or investigating official relating to the
allegations in the complaint, even if it is contained in a document that
would otherwise be privileged. If the document would otherwise be
privileged, only that portion containing exculpatory information must be
disclosed.
(c) The notice sent to the Attorney General from the reviewing
official as described in 35.5 is not discoverable under any
circumstances.
(d) The defendant may file a motion to compel disclosure of the
documents subject to the provisions of this section. Such a motion may
only be filed with the ALJ following the filing of an answer pursuant to
35.9.
22 CFR 35.21 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 35.22 and 35.23, 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 ten days of service, a party may file an opposition to the
motion and/or a motion for protective order as provided in 35.24.
(3) The ALJ may grant a motion for discovery only if he 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 or classified 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
35.24.
(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 35.8.
(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.
22 CFR 35.22 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
35.33(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.
22 CFR 35.23 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any
individual at the hearing may request that the ALJ issue a subpoena.
(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 therefor
not less than 15 days before the day 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 35.8. A subpoena on a party or upon an individual under
the control of a party may be served within the United States 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.
22 CFR 35.24 Protective order.
(a) A party or a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order 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, classified material, 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 directed by the
ALJ.
22 CFR 35.25 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 authority, a
check for witness fees and mileage need not accompany the subpoena.
22 CFR 35.26 Form, filing and service of papers.
(a) Form. (1) Documents filed with the ALJ shall include an original
and two copies.
(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, a designation of the paper (e.g., motion to quash subpoena),
and shall be in English or accompanied by an English translation.
(3) Every pleading and paper shall be signed by, and shall contain
the address and telephone number of the party or the person on whose
behalf the paper was filed, or his or her representative.
(4) Papers are considered filed when they are mailed. Date of
mailing may be established by a certificate from the party or its
representative or by proof that the document was sent by certified or
registered mail.
(b) Service. A party filing a document 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 delivering 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.
22 CFR 35.27 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, or by airmail
abroad, an additional five days will be added to the time permitted for
any response.
22 CFR 35.28 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.
22 CFR 35.29 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.
22 CFR 35.30 The hearing and burden of proof.
(a) The ALJ shall conduct a hearing on the record in order to
determine whether the defendant is liable for a civil penalty or
assessment under 35.3 and, if so, the appropriate amount of any such
civil penalty or assessment considering any aggravating or mitigating
factors.
(b) The authority shall prove defendant's liability and any
aggravating factors by a preponderance of the evidence.
(c) The defendant 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.
22 CFR 35.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and the authority head, upon appeal, should
evaluate any circumstances that mitigate or aggravate the violation and
should articulate in their opinions the reasons that support the
penalties and assessments they impose. Because of the intangible costs
of fraud, the expense of investigating such conduct, and the need to
deter others who might be similarly tempted, ordinarily double damages
and a significant civil penalty should be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the authority head in determining the
amount of penalties and assessments to impose with respect to the
misconduct (i.e., the false, fictitious, 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 defendant's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs of
investigation;
(6) The relationship of the amount imposed as civil penalties to the
amount of the Government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the management
of government programs and operations, including particularly the impact
on the intended beneficiaries of such programs;
(8) Whether the defendant has engaged in a pattern of the same or
similar misconduct;
(9) Whether the defendant attempted to conceal the misconduct;
(10) The degree to which the defendant has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
defendant, the extent to which the defendant's practices fostered or
attempted to preclude such misconduct;
(12) Whether the defendant cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the defendant assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree of
the defendant's sophistication with respect to it, including the extent
of the defendant's prior participation in the program or in similar
transactions;
(15) Whether the defendant has been found, in any criminal, civil, or
administrative proceeding to have engaged in similar misconduct or to
have dealt dishonestly with the Government of the United States or of a
state, directly or indirectly; and
(16) The need to deter the defendant and others from engaging in the
same or similar misconduct.
(c) Nothing in this section 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.
22 CFR 35.32 Location of hearing.
(a) The hearing may be held --
(1) In any judicial district of the United States in which the
defendant resides or transacts business;
(2) In any judicial district of the United States in which the claim
or statement in issue was made; or
(3) In such other place within the United States as may be agreed
upon by the defendant and the ALJ.
(b) Each party shall have the opportunity to present argument 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.
22 CFR 35.33 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 statement
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 35.22(a).
(c) The ALJ shall exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence in order to make --
(1) The interrogation and presentation effective for the
ascertainment of the truth;
(2) To avoid needless consumption of time; and
(3) To 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.
22 CFR 35.34 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided herein, 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 immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by considerations of undue delay or needless
presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is classified
or otherwise privileged under Federal law.
(f) Evidence concerning offers or 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 35.24.
22 CFR 35.35 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 35.24.
22 CFR 35.36 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.
22 CFR 35.37 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 35.3; and
(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 35.31.
(c) The ALJ shall promptly serve the initial decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if permitted) has expired. The ALJ shall at the same time
serve all defendants with a statement describing the right of any
defendant determined to be liable for a civil penalty or assessment to
file a motion for reconsideration with the ALJ or a notice of appeal
with the authority head. If the ALJ fails to meet the deadline
contained in this paragraph, he or she 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.
22 CFR 35.38 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
within the United States, 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 of the initial
decision, 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 35.39.
(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 35.39.
22 CFR 35.39 Appeal to authority head.
(a) Any defendant 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 35.38 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 defendant files with the authority head a
request for an extension within the initial 30-day period and shows good
cause.
(c) If the defendant files a timely notice of appeal with the
authority head and the time for filing motions for reconsideration under
35.38 has expired, 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 any objection that was not raised before the ALJ unless
a demonstration is made of extraordinary circumstances causing the
failure to raise the objection.
(i) If any party demonstrates to the satisfaction of the authority
head that additional evidence not presented at such hearing is material
and that there were reasonable grounds for the failure to present such
evidence at such hearing, the authority head 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 the defendant to seek judicial review.
(l) Unless a petition for review is filed as provided in 31 U.S.C.
3805 after a defendant has exhausted all administrative remedies under
this part and within 60 days after the date on which the authority head
serves the defendant with a copy of the authority head's decision, a
determination that a defendant is liable under 35.3 is final and is not
subject to judicial review.
22 CFR 35.40 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 immediately. The authority head may order the process resumed
only upon receipt of the written authorization of the Attorney General.
22 CFR 35.41 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.
22 CFR 35.42 Judicial review.
Section 3805 of title 31, United States Code, authorizes judicial
review by an appropriate United States District Court of a final
decision of the authority head imposing penalties or assessments under
this part and specifies the procedures for such review.
22 CFR 35.43 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.
22 CFR 35.44 Right to administrative offset.
The amount of any penalty or assessment which has become final, or
for which a judgment has been entered under 35.42 or 35.43, or any
amount agreed upon in a compromise or settlement under 35.46, 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 defendant.
22 CFR 35.45 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).
22 CFR 35.46 Compromise or settlement.
(a) Parties may make offers of compromise or settlement at any time.
(b) The reviewing official has the exclusive authority to compromise
or settle a case under this part at any time after the date on which the
reviewing official is permitted to issue a complaint and before the date
on which the ALJ issues an initial decision.
(c) The authority head has exclusive authority to compromise or
settle a case under this part at any time after the date on which the
ALJ issues an initial decision, except during the pendency of any review
under 35.42 or during the pendency of any action to collect penalties
and assessments under 35.43.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
35.42 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.
22 CFR 35.47 Limitations.
(a) The notice of hearing with respect to a claim or statement must
be served in the manner specified in 35.8 within six years after the
date on which such claim or statement is made.
(b) If the defendant fails to file a timely answer, service of notice
under 35.10(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.
22 CFR 35.47 SUBCHAPTER E -- VISAS
22 CFR 35.47 Pt. 40
22 CFR 35.47 PART 40 -- REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
22 CFR 35.47 Subpart A -- General Provisions
Sec.
40.1 Definitions.
40.2 Documentation of nationals.
40.3 Entry into areas under U.S. administration.
40.4 Furnishing records and information from visa files for court
proceedings.
40.5 (Reserved)
40.6 Basis for refusal.
40.7 -- 40.8 (Reserved)
40.9 Classes of excludable aliens.
22 CFR 35.47 Subpart B -- Medical Grounds of Ineligibility
40.11 Medical grounds of ineligibility.
22 CFR 35.47 Subpart C -- Criminal and Related Grounds -- Conviction of
Certain Crimes
40.21 Crimes involving moral turpitude and controlled substance
violators.
40.22 Multiple criminal convictions.
40.23 Controlled substance traffickers. (Reserved)
40.24 Prostitution and commercialized vice.
40.25 Certain aliens involved in serious criminal activity who have
asserted immunity from prosecution. (Reserved)
22 CFR 35.47 Subpart D -- Security and Related Grounds
40.31 General. (Reserved)
40.32 Terrorist activities. (Reserved)
40.33 Foreign policy. (Reserved)
40.34 Immigrant membership in totalitarian party.
40.35 Participants in Nazi persecutions or genocide. (Reserved)
22 CFR 35.47 Subpart E -- Public Charge
40.41 Public charge.
22 CFR 35.47 Subpart F -- Labor Certification and Qualification for
Certain Immigrants
40.51 Labor certification.
40.52 Unqualified physicians.
22 CFR 35.47 Subpart G -- Illegal Entrants and Immigration Violators
40.61 Aliens previously deported under INA 212(a)(6)(A).
40.62 Certain aliens previously removed from the United States under
INA 212(a)(6)(B).
40.63 Misrepresentation.
40.64 Stowaways.
40.65 Smugglers.
40.66 Subject of civil penalty. (Reserved)
22 CFR 35.47 Subpart H -- Documentation Requirements
40.71 Documentation requirements for immigrants.
40.72 Documentation requirements for nonimmigrants.
22 CFR 35.47 Subpart I -- Ineligible for Citizenship
40.81 Ineligible for citizenship.
40.82 Alien who departed the United States to avoid service in the
Armed Forces.
22 CFR 35.47 Subpart J -- Miscellaneous
40.91 Practicing polygamists.
40.92 Guardian required to accompany excluded alien.
40.93 International child abduction.
22 CFR 35.47 Subpart K -- Failure to Comply with INA; Certain Former
Exchange Visitors; Alien Entitled to A, E, or G Nonimmigrant
Classification
40.101 Failure of application to comply with INA.
40.102 Certain former exchange visitors.
40.103 Alien entitled to A, E, or G nonimmigrant classification.
22 CFR 35.47 Subpart L -- Waiver of Ground of Ineligibility
40.111 Waiver for ineligible nonimmigrants under INA 212(d)(3)(A).
Authority: 8 U.S.C. 1104; 8 U.S.C. 1182, unless otherwise noted.
Source: 56 FR 30422, July 2, 1991, unless otherwise noted.
22 CFR 35.47 Subpart A -- General Provisions
22 CFR 40.1 Definitions.
The following definitions supplement definitions contained in the
Immigration and Nationality Act (INA). As used in these regulations,
the term:
(a) Accompanying or accompanied by means not only an alien in the
physical company of a principal alien but also an alien who is issued an
immigrant visa within 4 months of either the date of issuance of a visa
to, or the date of adjustment of status in the United States of, the
principal alien, or the date on which the principal alien personally
appears and registers before a consular officer abroad to confer
alternate foreign state chargeability or immigrant status upon a spouse
or child. An ''accompanying'' relative may not precede the principal
alien to the United States.
(b) Act means the Immigration and Nationality Act (or INA), as
amended.
(c) Competent officer, as used in INA 101(a)(26), means a ''consular
officer'' as defined in INA 101(a)(9).
(d) Consular officer, as defined in INA 101(a)(9) includes
commissioned consular officers and the Deputy Assistant Secretary for
Visa Services, and such other officers as the Deputy Assistant Secretary
may designate for the purpose of issuing nonimmigrant and immigrant
visas, but does not include a consular agent, an attache1 or an
assistant attache1. For purposes of this regulation, the term ''other
officers'' includes civil service visa examiners employed by the
Department of State for duty at visa-issuing offices abroad, upon
certification by the chief of the consular section under whose direction
such examiners are employed that the examiners are qualified by
knowledge and experience to perform the functions of a consular officer
in the issuance or refusal of visas. The designation of visa examiners
shall expire upon termination of the examiners' employment for such duty
and may be terminated at any time for cause by the Deputy Assistant
Secretary. The assignment by the Department of any foreign service
officer to a diplomatic or consular office abroad in a position
administratively designated as requiring, solely, partially, or
principally, the performance of consular functions, and the initiation
of a request for a consular commission, constitutes designation of the
officer as a ''consular officer'' within the meaning of INA 101(a)(9).
(e) Department means the Department of State of the United States of
America.
(f) Dependent area means a colony or other component or dependent
area overseas from the governing foreign state, natives of which are
subject to the limitation prescribed by INA 202(c).
(g) Documentarily qualified means that the alien has reported that
all the documents specified by the consular officer as sufficient to
meet the requirements of INA 222(b) have been obtained, and that
necessary clearance procedures of the consular office have been
completed. This term shall be used only with respect to the alien's
qualification to apply formally for an immigrant visa; it bears no
connotation that the alien is eligible to receive a visa.
(h) Entitled to immigrant classification means that the alien:
(1) Is the beneficiary of an approved petition granting immediate
relative or preference status;
(2) Has satisfied the consular officer as to entitlement to special
immigrant status under INA 101(a)(27); or
(3) Has obtained an individual labor certification, or is within one
of the professional or occupational groups listed in Schedule A of the
Department of Labor regulations, or is within one of the classes
described in 40.51(c) and is therefore not within the purview of INA
212(a)(5)(A).
(i) With respect to alternate chargeability pursuant to INA 202(b),
the term ''foreign state'' is not restricted to those areas to which the
numerical limitation prescribed by INA 202(a) applies but includes
dependent areas, as defined in this section.
(j) INA means the Immigration and Nationality Act, as amended.
(k) INS means the Immigration and Naturalization Service.
(l) Not subject to numerical limitation means that the alien is
entitled to immigrant status as an immediate relative within the meaning
of INA 201(b) or INA 201(b)(2)(A)(i) after September 30, 1991, or as a
special immigrant within the meaning of INA 101(a)(27) or INA 101(a)(27)
(A) and (B) after September 30, 1991, unless specifically subject to a
limitation other than under INA 201 (a), (b), or (c).
(m) Parent, father, and mother, as defined in INA 101(b)(2), are
terms which are not changed in meaning if the child becomes 21 years of
age or marries.
(n) Port of entry means a port or place designated by the
Commissioner of Immigration and Naturalization at which an alien may
apply to INS for admission into the United States.
(o) Principal alien means an alien from whom another alien derives a
privilege or status under the law or regulations.
(p) Regulation means a rule which is established under the provisions
of INA 104(a) and is duly published in the Federal Register.
(q) Son or daughter includes only a person who would have qualified
as a ''child'' under INA 101(b)(1) if the person were under 21 and
unmarried.
(r) Western Hemisphere means North America (including Central
America), South America and the islands immediately adjacent thereto
including the places named in INA 101(b)(5).
(56 FR 30422, July 2, 1991, as amended by 56 FR 43552, Sept. 3, 1991)
22 CFR 40.2 Documentation of nationals.
(a) Nationals of the United States. A national of the United States
shall not be issued a visa or other documentation as an alien for entry
into the United States.
(b) Former Nationals of the United States. A former national of the
United States who seeks to enter the United States must comply with the
documentary requirements applicable to aliens under the INA.
22 CFR 40.3 Entry into areas under U.S. administration.
An immigrant or nonimmigrant seeking to enter an area which is under
U.S. administration but which is not within the ''United States'', as
defined in INA 101(a)(38), is not required by the INA to be documented
with a visa unless the authority contained in INA 215 has been invoked.
22 CFR 40.4 Furnishing records and information from visa files for
court proceedings.
Upon receipt of a request for information from a visa file or record
for use in court proceedings, as contemplated in INA 222(f), the
consular officer must, prior to the release of the information, submit
the request together with a full report to the Department.
22 CFR 40.5 (Reserved)
22 CFR 40.6 Basis for refusal.
A visa can be refused only upon a ground specifically set out in the
law or implementing regulations. The term ''reason to believe'', as
used in INA 221(g), shall be considered to require a determination based
upon facts or circumstances which would lead a reasonable person to
conclude that the applicant is ineligible to receive a visa as provided
in the INA and as implemented by the regulations. Consideration shall
be given to any evidence submitted indicating that the ground for a
prior refusal of a visa may no longer exist. The burden of proof is
upon the applicant to establish eligibility to receive a visa under INA
212 or any other provision of law or regulation.
40.7 -- 40.8 (Reserved)
22 CFR 40.9 Classes of excludable aliens.
Subparts (B) through (K) describe classes of excludable aliens who
are ineligible to receive visas and who shall be excluded from admission
into the United States, except as otherwise provided in the Immigration
and Nationality Act, as amended.
22 CFR 40.9 Subpart B -- Medical Grounds of Ineligibility
22 CFR 40.11 Medical grounds of ineligibility.
(a) Decision on eligibility based on findings of medical doctor. A
finding of a panel physician designated by the post in whose
jurisdiction the examination is performed pursuant to INA 212(a)(1)
shall be binding on the consular officer, except that the officer may
refer a panel physician finding in an individual case to USPHS for
review.
(b) Waiver of ineligibility -- INA 212(g). If an immigrant visa
applicant is ineligible under INA 212(a)(1)(A) (i) or (ii) but is
qualified to seek the benefits of INA 212(g), the consular officer shall
inform the alien of the procedure for applying to INS for relief under
that provision of law. A visa may not be issued to the alien until the
consular officer has received notification from INS of the approval of
the alien's application under INA 212(g).
22 CFR 40.11 Subpart C -- Criminal and Related Grounds -- Conviction of Certain Crimes
22 CFR 40.21 Crimes involving moral turpitude and controlled substance
violators.
(a) Crimes involving moral turpitude. (1) Acts must constitute a
crime under criminal law of jurisdiction where they occurred. Before a
finding of ineligibility under INA 212(a)(2)(A)(i)(I) may be made
because of an admission of the commission of acts which constitute the
essential elements of a crime involving moral turpitude, it must first
be established that the acts constitute a crime under the criminal law
of the jurisdiction where they occurred. A determination that a crime
involves moral turpitude shall be based upon the moral standards
generally prevailing in the United States.
(2) Conviction for crime committed under age 18. An alien shall not
be ineligible to receive a visa under INA 212(a)(2)(A)(i)(I) by reason
of any offense committed prior to the alien's fifteenth birthday. Nor
shall an alien be ineligible to receive a visa under INA
212(a)(2)(A)(i)(I) by reason of any offense committed between the
alien's fifteenth and eighteenth birthdays unless such alien was tried
and convicted as an adult for a felony involving violence as defined in
section 1(l) and section 16 of title 18 of the United States Code. An
alien tried and convicted as an adult for a violent felony offense, as
so defined, committed after having attained the age of fifteen years,
shall be subject to the provisions of INA 212(a)(2)(A)(i)(I) regardless
of whether at that time juvenile courts existed within the jurisdiction
of the convictions.
(3) Two or more crimes committed under age 18. An alien convicted of
a crime involving moral turpitude or admitting the commission of acts
which constitute the essential elements of such a crime and who has
committed an additional crime involving moral turpitude shall be
ineligible under INA 212(a)(2)(A)(i)(I), even though the crimes were
committed while the alien was under the age of 18 years.
(4) Conviction in absentia. A conviction in absentia of a crime
involving moral turpitude does not constitute a conviction within the
meaning of INA 212(a)(2)(A)(i)(I).
(5) Effect of pardon by appropriate U.S. authorities/foreign states.
An alien shall not be considered ineligible under INA 212(a)(2)(A)(i)(I)
by reason of a conviction of a crime involving moral turpitude for which
a full and unconditional pardon has been granted by the President of the
United States, by the Governor of a State of the United States, by the
former High Commissioner for Germany acting pursuant to Executive Order
10062, or by the United States Ambassador to the Federal Republic of
Germany acting pursuant to Executive Order 10608. A legislative pardon
or a pardon, amnesty, expungement of penal record or any other act of
clemency granted by a foreign state shall not serve to remove a ground
of ineligibility under INA 212(a)(2)(A)(i)(I).
(6) Political offenses. The term ''purely political offense'', as
used in INA 212(a)(2)(A)(i)(I), includes offenses that resulted in
convictions obviously based on fabricated charges or predicated upon
repressive measures against racial, religious, or political minorities.
(7) Waiver of ineligibility -- INA 212(h). If an immigrant visa
applicant is ineligible under INA 212(a)(2)(A)(i)(I) but is qualified to
seek the benefits of INA 212(h), the consular officer shall inform the
alien of the procedure for applying to INS for relief under that
provision of law. A visa may not be issued to the alien until the
consular officer has received notification from INS of the approval of
the alien's application under INA 212(h).
(b) Controlled substance violators. (1) Date of conviction not
pertinent. An alien shall be ineligible under INA 212(a)(2)(A)(i)(II)
irrespective of whether the conviction for a violation of or for
conspiracy to violate any law or regulation relating to a controlled
substance, as defined in the Controlled Substance Act (21 U.S.C. 802),
occurred before, on, or after October 27, 1986.
(2) Waiver of ineligibility -- INA 212(h). If an immigrant visa
applicant is ineligible under INA 212(a)(2)(A)(i)(II) but is qualified
to seek the benefits of INA 212(h), the consular officer shall inform
the alien of the procedure for applying to INS for relief under that
provision of law. A visa may not be issued to the alien until the
consular officer has received notification from INS of the approval of
the alien's application under INA 212(h).
22 CFR 40.22 Multiple criminal convictions.
(a) Conviction(s) for crime(s) committed under age 18. An alien
shall not be ineligible to receive a visa under INA 212(a)(2)(B) by
reason of any offense committed prior to the alien's fifteenth birthday.
Nor shall an alien be ineligible under INA 212(a)(2)(B) by reason of
any offense committed between the alien's fifteenth and eighteenth
birthdays unless such alien was tried and convicted as an adult for a
felony involving violence as defined in section 1(l) and section 16 of
Title 18 of the United States Code. An alien, tried and convicted as an
adult for a violent felony offense, as so defined, committed after
having attained the age of fifteen years, and who has also been
convicted of at least one other such offense or any other offense
committed as an adult, shall be subject to the provisions of INA
212(a)(2)(B) regardless of whether at that time juvenile courts existed
within the jurisdiction of the conviction.
(b) Suspended sentence. A sentence to confinement that has been
suspended by a court of competent jurisdiction is not one which has been
''actually imposed'' within the meaning of INA 212(a)(2)(B).
(c) Conviction in absentia. A conviction in absentia shall not
constitute a conviction within the meaning of INA 212(a)(2)(B).
(d) Effect of pardon by appropriate U.S. authorities/foreign states.
An alien shall not be considered ineligible under INA 212(a)(2)(B) by
reason in part of having been convicted of an offense for which a full
and unconditional pardon has been granted by the President of the United
States, by the Governor of a State of the United States, by the former
High Commissioner for Germany acting pursuant to Executive Order 10062,
or by the United States Ambassador to the Federal Republic of Germany
acting pursuant to Executive Order 10608. A legislative pardon or a
pardon, amnesty, expungement of penal record or any other act of
clemency granted by a foreign state shall not serve to remove a ground
of ineligibility under INA 212(a)(2)(B).
(e) Political offense. The term ''purely political offense'', as
used in INA 212(a)(2)(B), includes offenses that resulted in convictions
obviously based on fabricated charges or predicated upon repressive
measures against racial, religious, or political minorities.
(f) Waiver of ineligibility -- INA 212(h). If an immigrant visa
applicant is ineligible under INA 212(a)(2)(B) but is qualified to seek
the benefits of INA 212(h), the consular officer shall inform the alien
of the procedure for applying to INS for relief under that provision of
law. A visa may not be issued to the alien until the consular officer
has received notification from INS of the approval of the alien's
application under INA 212(h).
22 CFR 40.23 Controlled substance traffickers. (Reserved)
22 CFR 40.24 Prostitution and commercialized vice.
(a) Activities within 10 years preceding visa application. An alien
shall be ineligible under INA 212(a)(2)(D) only if --
(1) The alien is coming to the United States solely, principally, or
incidentally to engage in prostitution, or has engaged in prostitution,
or the alien directly or indirectly procures or attempts to procure, or
procured or attempted to procure or to import prostitutes or persons for
the purposes of prostitution, or receives or received, in whole or in
part, the proceeds of prostitution; and
(2) The alien has performed one of the activities listed in
40.24(a)(1) within the last ten years.
(b) Prostitution defined. The term ''prostitution'' means engaging
in promiscuous sexual intercourse for hire. A finding that an alien has
''engaged'' in prostitution must be based on elements of continuity and
regularity, indicating a pattern of behavior or deliberate course of
conduct entered into primarily for financial gain or for other
considerations of material value as distinguished from the commission of
casual or isolated acts.
(c) Where prostitution not illegal. An alien who is within one or
more of the classes described in INA 212(a)(2)(D) is ineligible to
receive a visa under that section even if the acts engaged in are not
prohibited under the laws of the foreign country where the acts
occurred.
(d) Waiver of ineligibility -- INA 212(h). If an immigrant visa
applicant is ineligible under INA 212(a)(2)(D) but is qualified to seek
the benefits of INA 212(h), the consular officer shall inform the alien
of the procedure for applying to INS for relief under that provision of
law. A visa may not be issued to the alien until the consular officer
has received notification from INS of the approval of the alien's
application under INA 212(h).
22 CFR 40.25 Certain aliens involved in serious criminal activity who have asserted immunity from prosecution. (Reserved)
22 CFR 40.25 Subpart D -- Security and Related Grounds
22 CFR 40.31 General. (Reserved)
22 CFR 40.32 Terrorist activities. (Reserved)
22 CFR 40.33 Foreign policy. (Reserved)
22 CFR 40.34 Immigrant membership in totalitarian party.
(a) Definition of affiliate. The term affiliate, as used in INA
212(a)(3)(D), means an oganization which is related to, or identified
with, a proscribed association or party, including any section,
subsidiary, branch, or subdivision thereof, in such close association as
to evidence an adherence to or a furtherance of the purposes and
objectives of such association or party, or as to indicate a working
alliance to bring to fruition the purposes and objectives of the
proscribed association or party. An organization which gives, loans, or
promises support, money, or other thing of value for any purpose to any
proscribed association or party is presumed to be an affiliate of such
association or party, but nothing contained in this paragraph shall be
construed as an exclusive definition of the term affiliate.
(b) Service in Armed Forces. Service, whether voluntary or not, in
the armed forces of any country shall not be regarded, of itself, as
constituting or establishing an alien's membership in, or affiliation
with, any proscribed party or organization, and shall not, of itself,
constitute a ground of ineligibility to receive a visa.
(c) Voluntary Service in a Political Capacity. Voluntary service in
a political capacity shall constitute affiliation with the political
party or organization in power at the time of such service.
(d) Voluntary Membership After Age 16. If an alien continues or
continued membership in or affiliation with a proscribed organization on
or after reaching 16 years of age, only the alien's activities after
reaching that age shall be pertinent to a determination of whether the
continuation of membership or affiliation is or was voluntary.
(e) Operation of Law Defined. The term operation of law, as used in
INA 212(a)(3)(D), includes any case wherein the alien automatically, and
without personal acquiescence, became a member of or affiliated with a
proscribed party or organization by official act, proclamation, order,
edict, or decree.
(f) Membership in Organization Advocating Totalitarian Dictatorship
in the United States. In accordance with the definition of totalitarian
party contained in INA 101(a)(37), a former or present voluntary member
of, or an alien who was, or is, voluntarily affiliated with a
noncommunist party, organization, or group, or of any section,
subsidiary, branch, affiliate or subdivision thereof, which during the
time of its existence did not or does not advocate the establishment in
the United States of a totalitarian dictatorship, is not considered
ineligible under INA 212(a)(3)(D) to receive a visa.
(g) Waiver of ineligibility -- 212(a)(3)(D)(iv). lf an immigrant
visa applicant is ineligible under INA 212(a)(3)(D) but is qualified to
seek the benefits of INA 212(a)(3)(D)(iv), the consular officer shall
inform the alien of the procedure for applying to INS for relief under
that provision of law. A visa may not be issued to the alien until the
consular officer has received notification from INS of the approval of
the alien's application under INA 212(a)(3)(D)(iv).
22 CFR 40.35 Participants in Nazi persecutions or genocide.
(a) Participation in Nazi persecutions. (Reserved)
(b) Participation in genocide. (Reserved)
22 CFR 40.35 Subpart E -- Public Charge
22 CFR 40.41 Public charge.
(a) Basis for determination of ineligibility. Any determination that
an alien is ineligible under INA 212(a)(4) must be predicated upon
circumstances indicating that the alien will probably become a public
charge after admission.
(b) Posting of bond. A consular officer may issue a visa to an alien
who is within the purview of INA 212(a)(4) upon receipt of notice from
INS of the giving of a bond or undertaking in accordance with INA 213
and INA 221(g), provided the officer is satisfied that the giving of
such bond or undertaking removes the likelihood that the alien might
become a public charge within the meaning of this section of the law and
that the alien is otherwise eligible in all respects.
(c) Prearranged employment. An immigrant visa applicant relying on
an offer of prearranged employment to establish eligibility under INA
212(a)(4), other than an offer of employment certified by the Department
of Labor pursuant to INA 212(a)(5)(A), must establish the offer of
employment by a document that confirms the essential elements of the
employment offer. Any document presented to confirm the employment
offer must be sworn and subscribed to before a notary public by the
employer or an authorized employee or agent of the employer. The
signer's printed name and position or other relationship with the
employer must accompany the signature.
(d) Significance of income poverty guidelines. An immigrant visa
applicant relying solely on personal income to establish eligibility
under INA 212(a)(4), who does not demonstrate an annual income above the
income poverty guidelines published by the Office of the Assistant
Secretary for Planning and Evaluation, Department of Health and Human
Services, and who is without other adequate financial resources, shall
be presumed ineligible under INA 212(a)(4).
22 CFR 40.41 Subpart F -- Labor Certification and Qualification for Certain Immigrants
22 CFR 40.51 Labor certification.
(a) INA 212(a)(5) applicable only to certain immigrant aliens. INA
212(a)(5)(A) applies,
(1) Through September 30, 1991, only to immigrant aliens described in
INA 203(a) (3) or (6) who are seeking to enter the United States for the
purpose of engaging in gainful employment; or,
(2) On or after October 1, 1991, only to immigrant aliens described
in INA 203(b) (2) or (3) who are seeking to enter the United States for
the purpose of engaging in gainful employment.
(b) Determination of need for alien's labor skills. An alien within
one of the classes to which INA 212(a)(5) applies as described in
40.51(a) who seeks to enter the United States for the purpose of
engaging in gainful employment, shall be ineligible under INA
212(a)(5)(A) to receive a visa unless the Secretary of Labor has
certified to the Attorney General and the Secretary of State, that
(1) There are not sufficient workers in the United States who are
able, willing, qualified, (or equally qualified in the case of aliens
who are members of the teaching profession or who have exceptional
ability in the sciences or the arts) and available at the time of
application for a visa and at the place to which the alien is destined
to perform such skilled or unskilled labor, and
(2) The employment of such alien will not adversely affect the wages
and working conditions of the workers in the United States similarly
employed.
(c) Labor certification not required in certain cases. A spouse or
child accompanying or following to join an alien spouse or parent who
prior to October 1, 1991 is or was a beneficiary of a petition approved
pursuant to INA 203(a) (3) or (6) or an alien spouse or parent who on or
after September 30, 1991 is a beneficiary of a petition approved
pursuant to INA 203(b) (2) or (3) is not considered to be within the
purview of INA 212(a)(5).
22 CFR 40.52 Unqualified physicians.
INA 212(a)(5)(B) applies only to immigrant aliens described in INA
203(a) (3) or (6) through September 30, 1991 or to immigrant aliens
described in INA 203(b)(2) or (3) on or after October 1, 1991.
22 CFR 40.52 Subpart G -- Illegal Entrants and Immigration Violators
22 CFR 40.61 Aliens previously deported under INA 212(a)(6)(A).
An alien who was excluded and deported from the United States under
INA 212(a)(6)(A) shall not be issued a visa within one year from the
date of deportation unless the alien has obtained permission from INS to
reapply for admission.
22 CFR 40.62 Certain aliens previously removed from the United States
under INA 212(a)(6)(B).
An alien who was arrested and deported from the United States under
INA 212(a)(6)(B) shall not be issued a visa unless the alien has
remained outside the United States for at least five successive years
(or twenty years in the case of an alien convicted of an aggravated
felony) following the last deportation or removal, or has obtained
permission from the Immigration and Naturalization Service to reapply
for admission to the United States.
22 CFR 40.63 Misrepresentation.
(a) Fraud and misrepresentation and INA 212(a)(6)(C) applicability to
certain refugees. An alien who seeks to procure, or has sought to
procure, or has procured a visa, other documentation, or entry into the
United States or other benefit provided under the INA by fraud or by
willfully misrepresenting a material fact at any time shall be
ineligible under INA 212(a)(6)(C); Provided, That the provisions of
this paragraph are not applicable if the fraud or misrepresentation was
committed by an alien at the time the alien sought entry into a country
other than the United States or obtained travel documents as a bona fide
refugee and the refugee was in fear of being repatriated to a former
homeland if the facts were disclosed in connection with an application
for a visa to enter the United States: Provided further, That the fraud
or misrepresentation was not committed by such refugee for the purpose
of evading the quota or numerical restrictions of the U.S. immigration
laws, or investigation of the alien's record at the place of former
residence or elsewhere in connection with an application for a visa.
(b) Misrepresentation in application under Displaced Persons Act or
Refugee Relief Act. Subject to the conditions stated in paragraph
(a)(6)(C)(i) of this section, an alien who is found by the consular
officer to have made a willful misrepresentation within the meaning of
section 10 of the Displaced Persons Act of 1948, as amended, for the
purpose of gaining admission into the United States as an eligible
displaced person, or to have made a material misrepresentation within
the meaning of section 11(e) of the Refugee Relief Act of 1953, as
amended, for the purpose of gaining admission into the United States as
an alien eligible, hereunder, shall be considered ineligible under the
provisions of INA 212(a)(6)(C).
(c) Waiver of ineligibility -- INA 212(i). If an immigrant applicant
is ineligible under INA 212(a)(6)(C) but is qualified to seek the
benefits of INA 212(i), the consular officer shall inform the alien of
the procedure for applying to INS for relief under that provision of
law. A visa may not be issued to the alien until the consular officer
has received notification from INS of the approval of the alien's
application under INA 212(i).
22 CFR 40.64 Stowaways.
INA 212(a)(6)(D) is not applicable at the time of visa application.
22 CFR 40.65 Smugglers.
(a) General. A visa shall not be issued to an alien who at any time
knowingly has encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation of law.
(b) Waiver of ineligibility -- INA 212(d)(11). If an immigrant
applicant is ineligible under INA 212(a)(6)(E) but is qualified to seek
the benefits of INA 212(d)(11), the consular officer shall inform the
alien of the procedure for applying to INS for relief under that
provision of law. A visa may not be issued to the alien until the
consular officer has received notification from INS of the approval of
the alien's application under INA 212(d)(11).
22 CFR 40.66 Subject of civil penalty.
(Reserved)
22 CFR 40.66 Subpart H -- Documentation Requirements
22 CFR 40.71 Documentation requirements for immigrants.
INA 212(a)(7)(A) is not applicable at the time of visa application.
(For waiver of documentary requirements for immigrants see 22 CFR 42.1
and 42.2.)
22 CFR 40.72 Documentation requirements for nonimmigrants.
A passport which is valid indefinitely for the return of the bearer
to the country whose government issued such passport shall be deemed to
have the required minimum period of validity as specified in INA
212(a)(7)(B).
22 CFR 40.72 Subpart I -- Ineligible for Citizenship.
22 CFR 40.81 Ineligible for citizenship.
An alien shall be ineligible to receive an immigrant visa under INA
212(a)(8)(A) if the applicant is ineligible for citizenship.
22 CFR 40.82 Alien who departed the United States to avoid service in
the armed forces.
(a) Applicability to immigrants. INA 212(a)(8)(A) applies to
immigrant visa applicants who have departed from or remained outside the
United States between September 8, 1939 and September 24, 1978, to avoid
or evade training or service in the United States Armed Forces.
(b) Applicability to nonimmigrants. INA 212(a)(8)(B) applies to
nonimmigrant visa applicants who have departed from or remained outside
the United States between September 8, 1939 and September 24, 1978 to
avoid or evade training or service in the U.S. Armed Forces except an
alien who held nonimmigrant status at the time of such departure.
22 CFR 40.82 Subpart J -- Miscellaneous
22 CFR 40.91 Practicing polygamists.
An immigrant alien shall be ineligible under INA 212(a)(9)(A) only if
the alien is coming to the United States to practice polygamy.
22 CFR 40.92 Guardian required to accompany excluded alien.
INA 212(a)(9)(B) is not applicable at the time of visa application.
22 CFR 40.93 International child abduction.
(a) Foreign state signatory to the Hague Convention. For purposes of
INA 212(a)(9)(C) a foreign state shall not be deemed signatory unless it
has become a party to such convention. A foreign state becomes a party
to the Hague Convention on the Civil Aspects of International Child
Abduction if it has both signed and has assumed full legal
responsibility for its implementation.
(b) Exception when child located in certain foreign state. An alien
who would otherwise be ineligible under INA 212(a)(9)(C)(i) shall not be
ineligible under such paragraph if the U.S. citizen child in question is
physically located in a foreign state which is party to the Hague
Convention on the Civil Aspects of International Child Abduction.
22 CFR 40.93 Subpart K -- Failure to Comply with INA; Certain Former Exchange Visitors; Alien Entitled to A, E, or G Nonimmigrant Classification
22 CFR 40.101 Failure of application to comply with INA.
(a) Refusal under INA 221(g). The consular officer shall refuse an
alien's visa application under INA 221(g)(2) as failing to comply with
the provisions of INA or the implementing regulations if:
(1) The applicant fails to furnish information as required by law or
regulations;
(2) The application contains a false or incorrect statement other
than one which would constitute a ground of ineligibility under INA
212(a)(6)(C);
(3) The application is not supported by the documents required by law
or regulations;
(4) The applicant refuses to be fingerprinted as required by
regulations;
(5) The necessary fee is not paid for the issuance of the visa or, in
the case of an immigrant visa, for the application therefore;
(6) In the case of an immigrant visa application, the alien fails to
swear to, or affirm, the application before the consular officer; or
(7) The application otherwise fails to meet specific requirements of
law or regulations for reasons for which the alien is responsible.
(b) Reconsideration of refusals. A refusal of a visa application
under paragraph (a)(1) of this section does not bar reconsideration of
the application upon compliance by the applicant with the requirements
of INA and the implementing regulations or consideration of a subsequent
application submitted by the same applicant.
22 CFR 40.102 Certain former exchange visitors.
An alien who was admitted into the United States as an exchange
visitor, or who acquired such status after admission, and who is within
the purview of INA 212(e) as amended by the Act of April 7, 1970, (84
Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), is not
eligible to apply for or receive an immigrant visa or a nonimmigrant
visa under INA 101(a)(15) (H), (K), or (L), notwithstanding the approval
of a petition on the alien's behalf, unless:
(a) It has been established that the alien has resided and has been
physically present in the country of the alien's nationality or last
residence for an aggregate of at least 2 years following the termination
of the alien's exchange visitor status as required by INA 212(e), or
(b) The foreign residence requirement of INA 212(e) has been waived
by the Attorney General in the alien's behalf.
22 CFR 40.103 Alien entitled to A, E, or G nonimmigrant classification.
An alien entitled to nonimmigrant classification under INA 101(a)(15)
(A), (E), or (G) who is applying for an immigrant visa and who intends
to continue the activities required for such nonimmigrant classification
in the United States is not eligible to receive an immigrant visa until
the alien executes a written waiver of all rights, privileges,
exemptions and immunities which would accrue by reason of such
occupational status.
22 CFR 40.103 Subpart L -- Waiver of Ground of Ineligibility
22 CFR 40.111 Waiver for ineligible nonimmigrants under INA
212(d)(3)(A).
(a) Report or recommendation to Department. Except as provided in
paragraph (b) of this section, consular officers may, upon their own
initiative, and shall, upon the request of the Secretary of State or
upon the request of the alien, submit a report to the Department for
possible transmission to the Attorney General pursuant to the provisions
of INA 212(d)(3)(A) in the case of an alien who is classifiable as a
nonimmigrant but who is known or believed by the consular officer to be
ineligible to receive a nonimmigrant visa under the provisions of INA
212(a), other than INA 212(a) (3)(A), (3)(C) or (3)(E).
(b) Recommendation to designated INS officer abroad. A consular
officer may, in certain categories defined by the Secretary of State,
recommend directly to designated INS officers that the temporary
admission of an alien ineligible to receive a visa be authorized under
INA 212(d)(3)(A).
(c) Attorney General may impose conditions. When the Attorney
General authorizes the temporary admission of an ineligible alien as a
nonimmigrant and the consular officer is so informed, the consular
officer may proceed with the issuance of a nonimmigrant visa to the
alien, subject to the conditions, if any, imposed by the Attorney
General.
22 CFR 40.111 PART 41 -- VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
22 CFR 40.111 Subpart A -- Passport and Visas Not Required for Certain
Nonimmigrants
Sec.
41.1 Exemption by law or treaty from passport and visa requirements.
41.2 Waiver by Secretary of State and Attorney General of passport
and/or visa requirements for certain categories of nonimmigrants.
41.3 Waiver by joint action of consular and immigration officers of
passport and/or visa requirements.
22 CFR 40.111 Subpart B -- Classification of Nonimmigrants
41.11 Entitlement to nonimmigrant status.
41.12 Classification symbols.
22 CFR 40.111 Subpart C -- Foreign Government Officials
41.21 General.
41.22 Officials of foreign governments.
41.23 Accredited officials in transit.
41.24 International organization aliens.
41.25 NATO representatives, officials, and employees.
41.26 Diplomatic visas.
41.27 Official visas.
22 CFR 40.111 Subpart D -- Temporary Visitors
41.31 Temporary visitors for business or pleasure.
41.32 Nonresident alien Mexican border crossing identification cards;
combined border crossing identification cards and B-1/B-2 visitor visa.
41.33 Nonresident alien Canadian border crossing identification card
(BCC).
22 CFR 40.111 Subpart E -- Crewman and Crew-List Visas
41.41 Crewmen.
41.42 Crew-list visas.
22 CFR 40.111 Subpart F -- Business and Media Visas
41.51 Treaty trader or investor.
41.52 Information media representative.
41.53 Temporary workers and trainees.
41.54 Intracompany transferees (executives, managers, and
specialists).
41.55 Aliens with extraordinary ability.
41.56 Athletes, artists and entertainers.
41.57 International cultural exchange visitors.
41.58 Aliens in religious occupations.86Subpart G -- Students and
Exchange Visitors
41.61 Students -- academic and nonacademic.
41.62 Exchange visitors.
22 CFR 40.111 Subpart H -- Transit Aliens
41.71 Transit aliens.
22 CFR 40.111 Subpart I -- Fiance(e) of a U.S. Citizen
41.81 Fiance(e) of a U.S. citizen.
22 CFR 40.111 Subpart J -- Application for Nonimmigrant Visa
41.101 Place of application.
41.102 Personal appearance of applicant.
41.103 Filing an application and Form OF-156.
41.104 Passport requirements.
41.105 Supporting documents and fingerprinting.
41.106 Processing.
41.107 Visa fees.
41.108 Medical examination.
22 CFR 40.111 Subpart K -- Issuance of Nonimmigrant Visa
41.111 Authority to issue visa.
41.112 Validity of visa.
41.113 Procedures in issuing visas.
41.114 Transfer of visas.
22 CFR 40.111 Subpart L -- Refusals and Revocations
41.121 Refusal of individual visas.
41.122 Revocation of visas.
Authority: 8 U.S.C. 1104; sec. 209, 104 Stat. 5027; 8 U.S.C.
1101(a)(15), unless otherwise noted.
Source: 52 FR 42597, Nov. 5, 1987, unless otherwise noted.
22 CFR 40.111 Subpart A-Passport and Visas Not Required for Certain Nonimmigrants
22 CFR 41.1 Exemption by law or treaty from passport and visa
requirements.
Nonimmigrants in the following categories are exempt from the
passport and visa requirements of INA 212(a), (i)(I), (i)(II):
(a) Alien members of the U.S. Armed Forces. An alien member of the
U.S. Armed Forces in uniform or bearing proper military identification,
who has not been lawfully admitted for permanent residence coming to the
United States under official orders or permit of such Armed Forces.
(Sec. 284, 86 Stat. 232; 8 U.S.C. 1354.)
(b) American Indians born in Canada. An American Indian born in
Canada, having at least 50 per centum of blood of the American Indian
race (Sec. 289, 66 Stat. 234; 8 U.S.C. 1359.)
(c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands.
An alien departing from Guam, Puerto Rico, or the Virgin Islands of the
United States, and seeking to enter the continental United States or any
other place under the jurisdiction of the United States (Sec. 212, 66
Stat. 188; 8 U.S.C. 1182.)
(d) Armed Services personnel of a NATO member. Personnel belonging
to the armed services of a government which is a Party to the North
Atlantic Treaty and which has ratified the Agreement Between the Parties
to the North Atlantic Treaty Regarding the Status of Their Forces,
signed at London on June 19, 1951, and entering the United States under
Article III of that Agreement pursuant to an individual or collective
movement order issued by an appropriate agency of the sending state or
of NATO (TIAS 2846; 4 U.S.T. 1792.)
(e) Armed Services personnel attached to a NATO headquarters in the
United States. Personnel attached to a NATO Headquarters in the United
States set up pursuant to the North Atlantic Treaty, belonging to the
armed services of a government which is a Party to the Treaty and
entering the United States in connection with their official duties
under the provisions of the Protocol on the Status of International
Military Headquarters Set Up Pursuant to the North Atlantic Treaty (TIAS
2978; 5 U.S.T. 875.)
(f) Aliens entering pursuant to International Boundary and Water
Commission Treaty. All personnel employed either directly or indirectly
on the construction, operation, or maintenance of works in the United
States undertaken in accordance with the treaty concluded on February 3,
1944, between the United States and Mexico regarding the functions of
the International Boundary and Water Commission, and entering the United
States temporarily in connection with such employment (59 Stat. 1252;
TS 994.)
(52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991)
22 CFR 41.2 Waiver by Secretary of State and Attorney General of
passport and/or visa requirements for certain categories of
nonimmigrants.
Pursuant to the authority of the Secretary of State and the Attorney
General under INA 212(d)(4), the passport and/or visa requirements of
INA 212(a)(7)(B)(i)(I), (i)(II) are waived as specified below for the
following categories of nonimmigrants:
(a) Canadian nationals. A passport is not required except after a
visit outside the Western Hemisphere. A visa is not required.
(b) Aliens resident in Canada or Bermuda having a common nationality
with nationals of Canada or with British subjects in Bermuda. A
passport is not required except after a visit outside the Western
Hemisphere. A visa is not required.
(c) Bahamian nationals and British subjects resident in the Bahamas.
A passport is required. A visa is not required if, prior to the
embarkation of such an alien for the United States on a vessel or
aircraft, the examining U.S. immigration officer at Freeport or Nassau
determines that the individual is clearly and beyond a doubt entitled to
admission.
(d) British subjects resident in the Cayman Islands or in the Turks
and Caicos Islands. A passport is required. A visa is not required if
the alien arrives directly from the Cayman Islands or the Turks and
Caicos Islands and presents a current certificate from the Clerk of
Court of the Cayman Islands or the Turks and Caicos Islands indicating
no criminal record.
(e) British, French, and Netherlands nationals and nationals of
certain adjacent islands of the Caribbean which are independent
countries. A passport is required. A visa is not required of a
British, French or Netherlands national, or of a national of Antigua,
Barbados, Grenada, Jamaica, or Trinidad and Tobago, who has residence in
British, French, or Netherlands territory located in the adjacent
islands of the Caribbean area, or has residence in Antigua, Barbados,
Grenada, Jamaica, or Trinidad and Tobago, if the alien:
(1) Is proceeding to the United States as an agricultural worker; or
(2) Is the beneficiary of a valid, unexpired, indefinite
certification granted by the Department of Labor for employment in the
Virgin Islands of the United States and is proceeding thereto for
employment, or is the spouse or child of such an alien accompanying or
following to join the alien.
(f) Nationals and residents of the British Virgin Islands proceeding
to the Virgin Islands of the United States. A passport is required. A
visa is not required of a national of the British Virgin Islands who
resides therein and is proceeding to the Virgin Islands of the United
States.
(g) Mexican nationals. (1) A visa and a passport are not required of
a Mexican national in possession of a border crossing identification
card and applying for admission as a temporary visitor for business or
pleasure from contiguous territory.
(2) A visa is not required of a Mexican national possessing a border
crossing identification card and applying for admission to the United
States as a temporary visitor for business or pleasure or in transit
from noncontiguous territory.
(3) A visa is not required of a Mexican national employed as a crew
member on an aircraft belonging to a Mexican company authorized to
engage in commercial transportation into the United States.
(4) A visa is not required of a Mexican national bearing a Mexican
diplomatic or official passport who is a military or civilian official
of the Federal Government of Mexico entering the United States for a
stay of up to 6 months for any purpose other than on assignment as a
permanent employee to an office of the Mexican Federal Government in the
United States. A visa is also not required of the official's spouse or
any of the official's dependent family members under 19 years of age who
hold diplomatic or official passports and are in the actual company of
the official at the time of entry. This waiver does not apply to the
spouse or any of the official's family members classifiable under INA
101(a)(15) (F) or (M).
(h) Natives and residents of the Trust Territory of the Pacific
Islands. A visa and a passport are not required of a native and
resident of the Trust Territory of the Pacific Islands who has proceeded
in direct and continuous transit from the Trust Territory to the United
States.
(i) Aliens in immediate transit without visa (TWOV). A passport and
visa are not required of an alien in immediate and continuous transit
through the United States in accordance with the terms of an agreement
entered into between the carrier and INS on Form I-426, Immediate and
Continuous Transit Agreement Between a Transportation Line and United
States of America, pursuant to INA 238(d) to ensure transit through and
departure from the United States en route to a specified foreign
country. The alien must be in possession of travel documentation
establishing identity, nationality, and ability to enter a country other
than the United States. This waiver of visa and passport requirement is
not available to an alien who is a citizen of Afghanistan, Bangladesh,
Cuba, India, Iran, Iraq, Libya, Pakistan or Sri Lanka. This waiver of
visa and passport requirements is also not available to an alien who is
a citizen of North Korea (''Democratic Peoples' Republic of Korea'') or
Vietnam (''Socialist Republic of Vietnam''), and is a resident of one of
the said countries. It is, on a basis of reciprocity, available to a
national of Albania, Bulgaria, Czechoslovakia, Estonia, the German
Democratic Republic, Hungary, Latvia, Lithuania, Mongolian People's
Republic, People's Republic of China, Poland, Romania, or the Union of
Soviet Socialist Republic, resident in one of those countries, only if
he is transiting the United States by aircraft of a transportation line
signatory to an agreement with the Immigration and Naturalization
Service on Form 1-426 on a direct through flight which will depart
directly to a foreign place from the port of arrival.
(j) Individual cases of unforeseen emergencies. A visa and passport
are not required of an alien if, either prior to the alien's embarkation
abroad or upon arrival at a port of entry, the responsible INS district
director in charge of the port of entry concludes, with the concurrence
of the Director of the Visa Office, that the alien was unable to obtain
the required documents because of an unforeseen emergency.
(k) Fiance(e) of a U.S. citizen. Notwithstanding the provisions of
paragraphs (a) through (h) of this section, a visa is required of an
alien described in such paragraphs who is classified, or who seeks
classification, under INA 101(a)(15)(K).
(l) Visa Waiver Pilot Program. Notwithstanding the provisions of
paragraphs (a) through (k) of this section, a visa is not required of
any person who is eligible to apply for admission to the United States
as a Visa Waiver Pilot Program applicant pursuant to the provisions of
section 217 of the Act, if such a person is a citizen of a country
designated as a participant in the Visa Waiver Pilot Program, who seeks
admission to the United States for a period of 90 days or less as a
visitor for business or pleasure. Countries so designated are: the
United Kingdom (effective July 1, 1988); Japan (effective December 15,
1988); France and Switzerland (effective July 1, 1989); The Federal
Republic of Germany and Sweden (effective July 15, 1989); Italy and The
Netherlands (effective July 29, 1989); and Andorra, Austria, Belgium,
Denmark, Finland, Iceland, Liechtenstein, Luxembourg, Monaco, New
Zealand, Norway, San Marino, and Spain (effective October 1, 1991).
(m) Treaty Trader and Treaty Investor. Notwithstanding the
provisions of paragraph (a) of this section, a visa is required of a
Canadian national who is classified, or who seeks classification, under
INA 101(a)(15)(E).
(52 FR 42597, Nov. 5, 1987, as amended at 53 FR 9110, Mar. 21, 1988;
53 FR 50162, Dec. 13, 1988; 53 FR 53375, Dec. 30, 1988; 54 FR 27121,
June 27, 1989; 56 FR 30428, July 2, 1991; 56 FR 46717, Sept. 13,
1991)
22 CFR 41.3 Waiver by joint action of consular and immigration officers
of passport and/or visa requirements.
Under the authority of INA 212(d)(4), the documentary requirements of
INA 212(a)(7)(B)(i)(I), (i)(II) may be waived for any alien in whose
case the consular officer serving the port or place of embarkation is
satisfied after consultation with, and concurrence by, the appropriate
immigration officer, that the case falls within any of the following
categories:
(a) Residents of foreign contiguous territory; visa and passport
waiver. An alien residing in foreign contiguous territory who does not
qualify for any waiver provided in 41.1 and is a member of a visiting
group or excursion proceeding to the United States under circumstances
which make it impractical to procure a passport and visa in a timely
manner.
(b) Aliens for whom passport extension facilities are unavailable;
passport waiver. As alien whose passport is not valid for the period
prescribed in INA 212(a)(7)(B)(i)(I) and who is embarking for the United
States at a port or place remote from any establishment at which the
passport could be revalidated.
(c) Aliens precluded from obtaining passport extensions by foreign
government restrictions; passport waiver. An alien whose passport is
not valid for the period prescribed in INA 212(a)(7)(B)(i)(I) and whose
government, as a matter of policy, does not revalidate passports more
than 6 months prior to expiration or until the passport expires.
(d) Emergent circumstances; visa waiver. An alien well and
favorably known at the consulat office, who was previously issued a
nonimmigrant visa which has expired, and who is proceeding directly to
the United States under emergent circumstances which preclude the timely
issuance of a visa.
(e) Members of armed forces of foreign countries; visa and passport
waiver. An alien on active duty in the armed forces of a foreign
country and a member of a group of such armed forces traveling to the
United States, on behalf of the alien's government or the United
Nations, under advance arrangements made with the appropriate military
authorities of the United States. The waiver does not apply to a
citizen or resident of Albania, Bulgaria, Cuba, Czechoslovakia, Estonia,
German Democratic Republic, Hungary, Latvia, Lithuania, Mongolian
People's Republic, North Korea (Democratic People's Republic of Korea),
Vietnam (Socialist Republic of Vietnam), People's Republic of China,
Poland, Romania, or the Union of Soviet Socialist Republics.
(f) Landed immigrants in Canada; passport waiver. An alien applying
for a visa at a consular office in Canada:
(1) Who is a landed immigrant in Canada;
(2) Whose port and date of expected arrival in the United States are
known; and
(3) Who is proceeding to the United States under emergent
circumstances which preclude the timely procurement of a passport or
Canadian certificate of identity.
(g) Authorization to individual consular office; visa and/or
passport waiver. An alien within the district of a consular office
which has been authorized by the Department, because of unusual
circumstances prevailing in that district, to join with immigration
officers abroad in waivers of documentary requirements in specific
categories of cases, and whose case falls within one of those
categories.
(52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991)
22 CFR 41.3 Subpart B -- Classification of Nonimmigrants
22 CFR 41.11 Entitlement to nonimmigrant status.
(a) Presumption of immigrant status and burden of proof. An
applicant for a nonimmigrant visa shall be presumed to be an immigrant
until the consular officer is satisfied that the applicant is entitled
to a nonimmigrant status described in INA 101(a)(15) or otherwise
established by law or treaty. The burden of proof is upon the applicant
to establish entitlement for nonimmigrant status and the type of
nonimmigrant visa for which application is made.
(b) Aliens unable to establish nonimmigrant status. (1) A
nonimmigrant visa shall not be issued to an alien who has failed to
overcome the presumption of immigrant status established by INA 214(b).
An alien shall be considered to have established bona fide nonimmigrant
status only if the consular officer is satisfied that his case falls
within one of the nonimmigrant categories described in INA 101(a)(15) or
otherwise established by law or treaty.
(2) In a borderline case in which an alien appears to be otherwise
entitled to receive a visa under INA 101(a)(15)(B) or (F) but the
consular officer concludes that the maintenance of the alien's status or
the departure of the alien from the United States as required is not
fully assured, a visa may nevertheless be issued upon the posting of a
bond with the Attorney General under terms and conditions prescribed by
the consular officer.
22 CFR 41.12 Classification symbols.
A visa issued to a nonimmigrant alien within one of the classes
described in this section shall bear an appropriate visa symbol to show
the classification of the alien. The symbol shall be inserted in the
space provided in the visa stamp. The following visa symbols shall be
used:
(52 FR 42597, Nov. 5, 1987; 53 FR 9110, Mar. 21, 1988)
22 CFR 41.12 Subpart C -- Foreign Government Officials
22 CFR 41.21 General.
(a) Definitions. In addition to pertinent INA definitions, the
following definitions are applicable:
(1) Accredited, as used in INA 101(a)(15)(A), 101(a)(15)(G), and
212(d)(8), means an alien holding an official position, other than an
honorary official position, with a government or international
organization and possessing a travel document or other evidence of
intention to enter or transit the United States to transact official
business for that government or international organization.
(2) Attendants, as used in INA 101(a)(15)(A)(iii), 101(a)(15)(G)(v),
and 212(d)(8), and in the definition of the NATO-7 visa symbol, means
aliens paid from the public funds of a foreign government or from the
funds of an international organization, accompanying or following to
join the principal alien to whom a duty or service is owed.
(3) Immediate family, as used in INA 101(a)(15)(A), 101(a)(15)(G),
and 212(d)(8), and in classification under the NATO-1 through NATO-5
visa symbols, means the spouse and unmarried sons and daughters, whether
by blood or adoption, who are not members of some other household, and
who will reside regularly in the household of the principal alien.
''Immediate family'' also includes any other close relatives of the
principal alien or spouse who:
(i) Are relatives of the principal alien or spouse by blood,
marriage, or adoption;
(ii) Are not members of some other household;
(iii) Will reside regularly in the household of the principal alien;
(iv) Are recognized as dependents by the sending Government as
demonstrated by eligibility for rights and benefits, such as the
issuance of a diplomatic or official passport and travel and other
allowances, which would be granted to the spouse and children of the
principal alien; and
(v) Are individually authorized by the Department.
(4) Servants and personal employees, as used in INA
101(a)(15)(A)(iii), 101(a)(15)(G)(v), and 212(d)(8), and in
classification under the NATO-7 visa symbol, means aliens employed in a
domestic or personal capacity by a principal alien, who are paid from
the private funds of the principal alien and seek to enter the United
States solely for the purpose of such employment.
(b) Exception to passport validity requirement for aliens in certain
A, G, and NATO classes. A nonimmigrant alien for whom the passport
requirement of INA 212(a)(7)(B)(i)(I) has not been waived and who is
within one of the classes:
(1) Described in INA 101(a)(15)(A)(i) and (ii); or
(2) Described in INA 101(a)(15)(G)(i), (ii), (iii), and (iv); or
(3) NATO-1, NATO-2, NATO-3, NATO-4, or NATO-6 may present a passport
which is valid only for a sufficient period to enable the alien to apply
for admission at a port of entry prior to its expiration.
(c) Exception to passport validity requirement for foreign government
officials in transit. An alien classified C-3 under INA 212(d)(8) needs
to present only a valid unexpired visa and a travel document which is
valid for entry into a foreign country for at least 30 days from the
date of application for admission into the United States.
(d) Grounds for refusal of visas applicable to certain A, C, G, and
NATO classes. (1) An A-1 or A-2 visa may not be issued to an alien the
Department has determined to be persona non grata.
(2) Only the provisions of INA 212(a) cited below apply to the
indicated classes of nonimmigrant visa applicants:
(i) Class A-1: INA 212(a) (3)(A), (3)(B), and (3)(C);
(ii) Class A-2: INA 212(a) (3)(A), (3)(B), and (3)(C);
(iii) Classes C-2 and C-3: INA 212(a) (3)(A), (3)(B), (3)(C), and
(7)(B);
(iv) Classes G-1, G-2, G-3, and G-4: INA 212(a) (3)(A), (3)(B), and
(3)(C);
(v) Classes NATO-1, NATO-2, NATO-3, NATO-4, and NATO-6: INA 212(a)
(3)(A), (3)(B), and (3)(C);
(3) An alien within class A-3 or G-5 is subject to all grounds of
refusal specified in INA 212 which are applicable to nonimmigrants in
general.
(52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988, as amended at
56 FR 30428, July 2, 1991)
22 CFR 41.22 Officials of foreign governments.
(a) Criteria for classification of foreign government officials. (1)
An alien is classifiable A-1 or A-2 under INA 101(a)(15)(A) (i) or (ii)
if the principal alien:
(i) Has been accredited by a foreign government recognized de jure by
the United States;
(ii) Intends to engage solely in official activities for that foreign
government while in the United States; and
(iii) Has been accepted by the President, the Secretary of State, or
a consular officer acting on behalf of the Secretary of State.
(2) A member of the immediate family of a principal alien is
classifiable A-1 or A-2 under INA 101(a)(15)(A) (i) or (ii) if the
principal alien is so classified.
(b) Classification under INA 101(a)(15)(A). An alien entitled to
classification under INA 101(a)(15)(A) shall be classified under this
section even if eligible for another nonimmigrant classification.
(c) Classification of attendants, servants, and personal employees.
An alien is classifiable as a nonimmigrant under INA 101(a)(15)(A)(iii)
if the consular officer is satisfied that the alien qualifies under
those provisions.
(d) Referral to the Department of special cases concerning principal
alien applicants. In any case in which there is uncertainty about the
applicability of these regulations to a principal alien applicant
requesting such nonimmigrant status, the matter shall be immediately
referred to the Department for consideration as to whether acceptance of
accreditation will be granted.
(e) Change of classification to that of a foreign government
official. In the case of an alien in the United States seeking a change
of nonimmigrant classification under INA 248 to a classification under
INA 101(a)(15)(A) (i) or (ii), the question of acceptance of
accreditation is determined by the Department.
(f) Termination of status. The Department may, in its discretion,
cease to recognize as entitled to classification under INA 101(a)(15)(A)
(i) or (ii) any alien who has nonimmigrant status under that provision.
(g) Classification of foreign government official. A foreign
government official or employee seeking to enter the United States
temporarily other than as a representative or employee of a foreign
government is not classifiable under the provisions of INA
101(a)(15)(A).
(h) Courier and acting courier on official business -- (1) Courier of
career. An alien regularly and professionally employed as a courier by
the government of the country to which the alien owes allegiance is
classifiable as a nonimmigrant under INA 101(a)(15)(A)(i), if the alien
is proceeding to the United States on official business for that
government.
(2) Official acting as courier. An alien not regularly and
professionally employed as a courier by the government of the country to
which the alien owes allegiance is classifiable as a nonimmigrant under
INA 101(a)(15)(A)(ii), if the alien is holding an official position and
is proceeding to the United States as a courier on official business for
that government.
(3) Nonofficial serving as courier. An alien serving as a courier
but not regularly and professionally employed as such who holds no
official position with, or is not a national of, the country whose
government the alien is serving, shall be classified as a nonimmigrant
under INA 101(a)(15)(B).
(i) Official of foreign government not recognized by the United
States. An official of a foreign government not recognized de jure by
the United States, who is proceeding to or through the United States on
an official mission or to an international organization shall be
classified as a nonimmigrant under INA 101(a)(15) (B), (C), or (G)(iii).
22 CFR 41.23 Accredited officials in transit.
An accredited official of a foreign government intending to proceed
in immediate and continuous transit through the United States on
official business for that government is entitled to the benefits of INA
212(d)(8) if that government grants similar privileges to officials of
the United States, and is classifiable C-3 under the provisions of INA
101(a)(15)(C). Members of the immediate family, attendants, servants,
or personal employees of such an official receive the same
classification as the principal alien.
22 CFR 41.24 International organization aliens.
(a) Definition of international organization. ''International
organization,'' means any public international organization which has
been designated by the President by Executive Order as entitled to enjoy
the privileges, exemptions, and immunities provided for in the
International Organizations Immunities Act. (59 Stat. 669)
(b) Aliens coming to international organizations. (1) An alien is
classifiable under INA 101(a)(15)(G) if the consular officer is
satisfied that the alien is within one of the classes described in that
section and seeks to enter or transit the United States in pursuance of
official duties. If the purpose of the entry or transit is other than
pursuance of official duties, the alien is not classifiable under INA
101(a)(15)(G).
(2) An alien applying for a visa under the provisions of INA
101(a)(15)(G) may not be refused solely on the grounds that the
applicant is not a national of the country whose government the
applicant represents.
(3) An alien seeking to enter the United States as a foreign
government representative to an international organization, who is also
proceeding to the United States on official business as a foreign
government official within the meaning of INA 101(a)(15)(A), shall be
issued a visa under that section, if otherwise qualified.
(4) An alien not classifiable under INA 101(a)(15)(A) but entitled to
classification under INA 101(a)(15)(G) shall be classified under the
latter section, even if also eligible for another nonimmigrant
classification.
22 CFR 41.25 NATO representatives, officials, and employees.
(a) Classification. An alien shall be classified under the symbol
NATO-1, NATO-2, NATO-3, NATO-4, or NATO-5 if the consular officer is
satisfied that the alien is seeking admission to the United States under
the applicable provision of the Agreement on the Status of the North
Atlantic Treaty Organization, National Representatives and International
Staff, or is a member of the immediate family of an alien classified
NATO-1 through NATO-5. (See 41.12 for classes of aliens entitled to
classification under each symbol.)
(b) Armed services personnel. Armed services personnel entering the
United States in accordance with the provisions of the Agreement Between
the Parties to the North Atlantic Treaty Regarding the Status of Their
Forces or in accordance with the provisions of the Protocol on the
Status of International Military Headquarters Set Up Pursuant to the
North Atlantic Treaty may enter the United States under the appropriate
treaty waiver of documentary requirements contained in 41.1 (d) or (e).
If a visa is issued it is classifiable under the NATO-2 symbol.
(c) Dependents of armed services personnel. Dependents of armed
services personnel referred to in paragraph (b) of this section shall be
classified under the symbol NATO-2.
(d) Members of civilian components and dependents. Alien members of
a civilian component accompanying a force entering in accordance with
the provisions of the NATO Status-of-Forces Agreement, and dependents,
or alien members of a civilian component attached to or employed by an
Allied Headquarters under the Protocol on the Status of International
Military Headquarters, and dependents shall be classified under the
symbol NATO-6.
(e) Attendant, servant, or personal employee of an alien classified
NATO-1 through NATO-6. An alien attendant, servant, or personal
employee of an alien classified NATO-1 through NATO-6, and any member of
the immediate family of such attendant, servant, or personal employee,
shall be classified under the symbol NATO-7.
22 CFR 41.26 Diplomatic visas.
(a) Definitions. (1) ''Diplomatic passport'' means a national
passport bearing that title and issued by a competent authority of a
foreign government.
(2) ''Diplomatic visa'' means any nonimmigrant visa, regardless of
classification, which bears that title and is issued in accordance with
the regulations of this section.
(3) ''Equivalent of a diplomatic passport'' means a national
passport, issued by a competent authority of a foreign government which
does not issue diplomatic passports to its career diplomatic and
consular officers, indicating the career diplomatic or consular status
of the bearer.
(b) Place of application. With the exception of certain aliens in
the United States issued nonimmigrant visas by the Department under the
provisions of 41.111(b), application for a diplomatic visa shall be
made at a diplomatic mission or at a consular office authorized to issue
diplomatic visas, regardless of the nationality or residence of the
applicant.
(c) Classes of aliens eligible to receive diplomatic visas. (1) A
nonimmigrant alien who is in possession of a diplomatic passport or its
equivalent shall, if otherwise qualified, be eligible to receive a
diplomatic visa irrespective of the classification of the visa under
41.12 if within one of the following categories:
(i) Heads of states and their alternates;
(ii) Members of a reigning royal family;
(iii) Governors-general, governors, high commissioners, and similar
high administrative or executive officers of a territorial unit, and
their alternates;
(iv) Cabinet ministers and their assistants holding executive or
administrative positions not inferior to that of the head of a
departmental division, and their alternates;
(v) Presiding officers of chambers of national legislative bodies;
(vi) Justices of the highest national court of a foreign country;
(vii) Ambassadors, public ministers, other officers of the diplomatic
service and consular officers of career;
(viii) Military officers holding a rank not inferior to that of a
brigadier general in the United States Army or Air Force and Naval
officers holding a rank not inferior to that of a rear admiral in the
United States Navy;
(ix) Military, naval, air and other attache1 and assistant attache1
assigned to a foreign diplomatic mission;
(x) Officers of foreign-government delegations to international
organizations so designated by Executive Order;
(xi) Officers of foreign-government delegations to, and officers of,
international bodies of an official nature, other than international
organizations so designated by Executive Order;
(xii) Officers of a diplomatic mission of a temporary character
proceeding to or through the United States in the performance of their
official duties;
(xiii) Officers of foreign-government delegations proceeding to or
from a specific international conference of an official nature;
(xiv) Members of the immediate family of a principal alien who is
within one of the classes described in paragraphs (c)(1)(i) to
(c)(1)(xi) inclusive, of this section;
(xv) Members of the immediate family accompanying or following to
join the principal alien who is within one of the classes described in
paragraphs (c)(1)(xii) and (c)(1)(xiii) of this section;
(xvi) Diplomatic couriers proceeding to or through the United States
in the performance of their official duties.
(2) Aliens Classifiable G-4, who are otherwise qualified, are
eligible to receive a diplomatic visa if accompanying these officers:
(i) The Secretary General of the United Nations;
(ii) An Under Secretary General of the United Nations;
(iii) An Assistant Secretary General of the United Nations;
(iv) The Administrator or the Deputy Administrator of the United
Nations Development Program;
(v) An Assistant Administrator of the United Nations Development
Program;
(vi) The Executive Director of the:
(A) United Nation's Children's Fund;
(B) United Nations Institute for Training and Research;
(C) United Nations Industrial Development Organization;
(vii) The Executive Secretary of the:
(A) United Nations Economic Commission for Africa;
(B) United Nations Economic Commission for Asia and the Far East;
(C) United Nations Economic Commission for Latin America;
(D) United Nations Economic Commission for Europe;
(viii) The Secretary General of the United Nations Conference on
Trade and Development;
(ix) The Director General of the Latin American Institute for
Economic and Social Planning;
(x) The United Nations High Commissioner for Refugees;
(xi) The United Nations Commissioner for Technical Cooperation;
(xii) The Commissioner General of the United Nations Relief and Works
Agency for Palestine Refugees in the Near East;
(xiii) The spouse or child of any nonimmigrant alien listed in
paragraphs (c)(2)(i) through (c)(2)(xii) of this section.
(3) Other individual aliens or classes of aliens are eligible to
receive diplomatic visas upon authorization of the Department, the Chief
of a U.S. Diplomatic Mission, the Deputy Chief of Mission, the Counselor
for Consular Affairs or the principal officer of a consular post not
under the jurisdiction of a diplomatic mission.
(52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988)
22 CFR 41.27 Official visas.
(a) Definition. ''Official visa'' means any nonimmigrant visa,
regardless of classification, which bears that title and is issued in
accordance with these regulations.
(b) Place of application. Official visas are ordinarily issued only
when application is made in the consular district of the applicant's
residence. When directed by the Department, or in the discretion of the
consular officer, official visas may be issued when application is made
in a consular district in which the alien is physically present but does
not reside. Certain aliens in the United States may be issued official
visas by the Department under the provisions of 41.111(b).
(c) Classes of aliens eligible to receive official visas. (1) A
nonimmigrant within one of the following categories who is not eligible
to receive a diplomatic visa shall, if otherwise qualified, be eligible
to receive an official visa irrespective of classification of the visa
under 41.12:
(i) Aliens within a class described in 41.26(c)(2) who are
ineligible to receive a diplomatic visa because they are not in
possession of a diplomatic passport or its equivalent;
(ii) Aliens classifiable under INA 101(a)(15)(A);
(iii) Aliens, other than those described in 41.26(c)(3) who are
classifiable under INA 101(a)(15)(G), except those classifiable under
INA 101(a)(15)(G)(iii) unless the government of which the alien is an
accredited representative is recognized de jure by the United States;
(iv) Aliens classifiable under INA 101(a)(15)(C) as nonimmigrants
described in INA 212(d)(8);
(v) Members and members-elect of national legislative bodies;
(vi) Justices of the lesser national and the highest state courts of
a foreign country;
(vii) Officers and employees of national legislative bodies
proceeding to or through the United States in the performance of their
official duties;
(viii) Clerical and custodial employees attached to
foreign-government delegations to, and employees of, international
bodies of an official nature, other than international organizations so
designated by Executive Order, proceeding to or through the United
States in the performance of their official duties;
(ix) Clerical and custodial employees attached to a diplomatic
mission of a temporary character proceeding to or through the United
States in the performance of their official duties;
(x) Clerical and custodial employees attached to foreign-government
delegations proceeding to or from a specific international conference of
an official nature;
(xi) Officers and employees of foreign governments recognized de jure
by the United States who are stationed in foreign contiguous territories
or adjacent islands;
(xii) Members of the immediate family, attendants, servants and
personal employees of, when accompanying or following to join, a
principal alien who is within one of the classes referred to or
described in paragraphs (c)(1)(i) through (c)(1)(xi) inclusive of this
section;
(xiii) Attendants, servants and personal employees accompanying or
following to join a principal alien who is within one of the classes
referred to or described in paragraphs (c)(1)(i) through (c)(1)(xiii)
inclusive of 41.26(c)(2).
(2) Other individual aliens or classes of aliens are eligible to
receive official visas upon the authorization of the Department, the
Chief of a U.S. Diplomatic Mission, the Deputy Chief of Mission, the
Counselor for Consular Affairs, or the principal officer of a consular
post not under the jurisdiction of a diplomatic mission.
(52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988)
22 CFR 41.27 Subpart D -- Temporary Visitors
22 CFR 41.31 Temporary visitors for business or pleasure.
(a) Classification. An alien is classifiable as a nonimmigrant
visitor for business (B-1) or pleasure (B-2) if the consular officer is
satisfied that the alien qualifies under the provisions of INA
101(a)(15)(B), and that:
(1) The alien intends to leave the United States at the end of the
temporary stay (consular officers are authorized, if departure of the
alien as required by law does not seem fully assured, to require the
posting of a bond with the Attorney General in a sufficient sum to
ensure that at the end of the temporary visit, or upon failure to
maintain temporary visitor status, or any status subsequently acquired
under INA 248, the alien will depart from the United States);
(2) The alien has permission to enter a foreign country at the end of
the temporary stay; and
(3) Adequate financial arrangements have been made to enable the
alien to carry out the purpose of the visit to and departure from the
United States.
(b) Definitions. (1) The term ''business,'' as used in INA
101(a)(15)(B), refers to conventions, conferences, consultations and
other legitimate activities of a commercial or professional nature. It
does not include local employment or labor for hire. For the purposes
of this section building or construction work, whether on-site or in
plant, shall be deemed to constitute purely local employment or labor
for hire; provided that the supervision or training of others engaged
in building or construction work (but not the actual performance of any
such building or construction work) shall not be deemed to constitute
purely local employment or labor for hire if the alien is otherwise
qualified as a B-1 nonimmigrant. An alien seeking to enter as a
nonimmigrant for employment or labor pursuant to a contract or other
prearrangement is required to qualify under the provisions of 41.53. An
alien of distinguished merit and ability seeking to enter the United
States temporarily with the idea of performing temporary services of an
exceptional nature requiring such merit and ability, but having no
contract or other prearranged employment, may be classified as a
nonimmigrant temporary visitor for business.
(2) The term ''pleasure,'' as used in INA 101(a)(15)(B), refers to
legitimate activities of a recreational character, including tourism,
amusement, visits with friends or relatives, rest, medical treatment,
and activities of a fraternal, social, or service nature.
(52 FR 42597, Nov. 5, 1987; 53 FR 9172, Mar. 21, 1988)
22 CFR 41.32 Nonresident alien Mexican border crossing identification
cards; combined border crossing identification cards and B-1/B-2
visitor visa.
(a) Border crossing identification cards (BCC) -- (1) Posts
authorized to issue. Consular officers assigned to consular offices in
Ciudad Juarez, Hermosillo, Nuevo Laredo, Matamoros, and Tijuana may
issue a nonresident alien border crossing identification card (BCC), as
that term is defined in INA 101(a)(6), to a nonimmigrant alien who:
(i) Is a citizen and resident of Mexico; and
(ii) Is a temporary visitor who, if applying for a B-1 or B-2 visitor
visa for business or pleasure, would be eligible to receive such visa.
(2) Procedures for application. A citizen of Mexico shall apply for
a BCC on Form OF-156, Nonimmigrant Visa Application. The application
shall be supported by:
(i) Evidence of Mexican citizenship and residence;
(ii) A valid or expired Mexican Federal passport or a valid Mexican
identity document (Form FM13); and
(iii) One photograph (1- 1/2-inches square), if the alien is 16 years
of age or older. Each applicant shall appear in person before a
consular officer and be interviewed regarding eligibility for a
temporary visitor visa, unless personal appearance is waived by the
officer.
(3) Issuance and format. A Mexican BCC shall consist of a stamp
placed in the alien's valid or expired Mexican Federal passport or valid
Mexican identity document by a consular officer stationed at one of the
posts designated in paragraph (a)(1) of this section. The stamps shall
be numbered serially by each consular office beginning with the number
''1'' on October 1 of each year. They must be in the format prescribed
by the Department and contain the following data:
(i) Post symbol;
(ii) Number of the card;
(iii) Title and location of the issuing office;
(iv) Date of issuance;
(v) Name(s) of the person(s) to whom issued; and
(vi) Signature and title of the issuing officer.
(b) Combined border crossing identification cards and B-1/B-2 visitor
visas (B-1/B-2 -- BCC) -- (1) -- Posts authorized to issue. Consular
officers assigned to any consular office in Mexico may issue a
nonresident alien border crossing identification card, as that term is
defined in INA 101(a)(6), in combination with a B-1/B-2 nonimmigrant
visitor vias (B-1/B-2 -- BCC, to a nonimmigrant alien who:
(i) Is a citizen of Mexico;
(ii) Seeks to enter the United States as a temporary visitor for
business or pleasure as defined in INA 101(a)(15)(B) for periods of stay
not exceeding 6 months; and
(iii) Is otherwise eligible to receive a B-1 or B-2 temporary visitor
visa or is the beneficiary of a waiver under INA 212(d)(3)(A) of a
ground of ineligibility, which is valid for multiple applications for
admission into the United States and for an indefinite period of time
and which contains no restrictions as to extensions of temporary stay or
itinerary.
(2) Procedure for application. Application for a B-1/B-2 -- BCC may
be made by a Mexican applicant at any U.S. consular office in Mexico on
Form OF-156. The application shall be supported by:
(i) Evidence of Mexican citizenship and residence;
(ii) A valid Mexican Federal passport; and
(iii) One photograph (1- 1/2-inches square), if 16 years of age or
older.
Each applicant shall appear in person before a consular officer to be
interviewed regarding eligibility for a visitor visa, unless personal
appearance is waived by the consular officer.
(3) Issuance and format. A Mexican B-1/B-2 -- BCC shall consist of a
numbered stamp placed in the alien's valid Mexican Federal passport by a
consular officer in Mexico. The stamps shall be numbered serially by
each consular office beginning with the number ''1'' on October 1 of
each year. They must be in the format prescribed by the Department and
contain the following data:
(i) Post symbol;
(ii) Number of the card;
(iii) Title and location of the issuing office;
(iv) Date of issuance;
(v) Indicia ''Mexican Border Crossing Identification Card and B-1/B-2
Nonimmigrant Visa'';
(vi) Name(s) of the person(s) to whom issued;
(vii) Caption ''Valid indefinitely for multiple applications for
admission to the United States as a temporary visitor for business or
pleasure'' in the middle portion of the stamp; and
(viii) Signature and title of the issuing officer.
(c) Validity. A Mexican BCC or B-1/B-2 -- BCC, issued pursuant to
the provisions of this section, is valid until revoked. A BCC
previously issued by a consular officer in Mexico on Form I-186,
Nonresident Alien Mexican Border Crossing Card, or Form I-586,
Nonresident Alien Border Crossing Card, is valid until revoked or
voided, regardless of any expiration date on the card.
(d) Revocation. A Mexican BCC or B-1/B-2 -- BCC may be revoked under
the provisions of 41.122. Upon revocation, the consular or immigration
officer shall cancel the card by writing or stamping the word
''Canceled'' plainly acoss the face of the card stamp and shall indicate
the location of the consular or immigration office where the card was
revoked.
(e) Voidance of Mexican border crossing cards issued in Mexico on
form I-186 or form I-586. A consular officer in Mexico may declare
void, without notice, a BCC previously issued in Mexico on Form I-186 or
Form I-586, upon a finding that the holder is ineligible to receive a
nonimmigrant visas. The card must be surrendered immediately upon
voidance.
(f) Replacement. When a Mexican BCC or B-1/B-2 -- BCC issued under
the provisions of this section has been lost, mutilated, or destroyed,
the person to whom such card was issued may apply for a new card as
provided in this section. A nonresident alien whose BCC previously
issued on Form I-186 or Form I-586 by a consular officer in Mexico, has
been lost, mutilated, or destroyed, may apply for a B-1/B-2 -- BCC at
any consular office in Mexico, provided the alien qualifies under
paragraph (b) of this section.
(52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988)
22 CFR 41.33 Nonresident alien Canadian border crossing identification
card (BCC).
(a) Aliens eligible to apply. A consular officer assigned to a
consular office in Canada may issue a nonresident alien border crossing
identification care (BCC), as that term is defined in INA 101(a)(6), to
a nonimmigration alien who:
(1) Has been admitted to Canada for permanent residence as a landed
immigrant;
(2) Seeks to enter the United States from Canada, or will seek to
enter the United States from Mexico and will not have visited any
countries other than Mexico and the United States since departing
Canada, only as a temporary visitor for business or pleasure as defined
in INA 101(a)(15)(B) for periods of stay not exceeding 6 months; and
(3) Is otherwise eligible to receive a temporary visitor visa or is
the beneficiary of a waiver under INA 212(d)(3)(A) of a ground of
ineligibility, which is valid for multiple applications for admission
into the United States and for an indefinite period of time and which
contains no restrictions as to extensions of temporary stay or
itinerary.
(b) Procedure for application. Application for a Canadian BCC shall
be made on Form OF-156, Nonimmigrant Visa Application. The application
shall be supported by:
(1) Evidence of the applicant's landed immigrant status in Canada;
(2) A valid or expired passport or other travel document showing
origin, identity, and nationality, if any; and
(3) One photograph (1 1/2 inches square), if the applicant is 16
years of age or over. Each applicant must appear in person before a
consular officer and be interviewed regarding eligibility for a visitor
visa unless personal appearance is waived by the consular officer.
(c) Issuance and format of border crossing identification card. A
Canadian BCC shall consist of a stamp placed in the alien's passport or
other travel document by a consular officer in Canada. The stamps shall
be numbered serially by each consular office beginning with the number
''1'' on October 1 of each year. They shall be in the format prescribed
by the Department and contain the following data:
(1) Post symbol;
(2) Number of the card;
(3) Title and location of the issuing office;
(4) Date of issuance;
(5) Name(s) of the person(s) to whom issued; and
(6) Signature and title of the issuing officer.
(d) Validity of Canadian BCC. A Canadian BCC, issued pursuant to the
provisions of this section, is valid until revoked.
(e) Revocation of Canadian BCC. (1) A Canadian BCC shall be revoked
by a consular officer if information is developed indicating that the
holder is ineligible to receive a nonimmigrant visa, or by a District
Director of the Immigration and Naturalization Service if it is found
that the alien has violated the conditions of admission into the United
States.
(2) In canceling such a card the consular or immigration officer
shall write or stamp the word ''Canceled'' plainly across the face of
the card stamp, indicate the location of the consular or immigration
office where the card was revoked and follow the procedures of 41.122.
22 CFR 41.33 Subpart E -- Crewman and Crew-List Visas
22 CFR 41.41 Crewmen.
(a) Alien classifiable as crewman. An alien shall be classifiable as
a nonimmigrant crewman upon establishing to the satisfaction of the
consular officer the qualifications prescribed by INA 101(a)(15)(D)
provided that the alien has permission to enter some foreign country
after a temporary landing in the United States.
(b) Alien not classifiable as crewman. An alien employed on board a
vessel or aircraft in a capacity not required for normal operation and
service, or an alien employed or listed as a regular member of the crew
in excess of the number normally required, shall not be classified as a
crewman.
22 CFR 41.42 Crew-list visas.
(a) Definition. A crew-list visa is a nonimmigrant visa issued on a
manifest of crewmen of a vessel or aircraft and includes all aliens
listed in the manifest unless otherwise stated. It constitutes a valid
nonimmigrant visa within the meaning of INA 212(a)(7)(B)(i)(II).
(b) Application. (1) A list of all alien crewmen serving on a vessel
or aircraft proceeding to the United States and not in possession of a
valid individual D visa or INS Form I-151 or Form I-551, Alien
Registration Receipt Card, shall be submitted in duplicate to a consular
officer on INS Form I-418, Passenger List-Crew List, or other prescribed
forms. The duplicate copy of Form I-418 must show in column (4) the
date, city, and country of birth of each person listed and in column (5)
the place of issuance and the issuing authority of the passport held by
that person. For aircraft crewmen, the manifest issued by the
International Civil Aviation Organization (ICAO) or Customs Form 7507,
General Declaration, may be used in lieu of Form I-418 if there is
adequate space for the list of names.
(2) The formal application for a crew-list visa is the crew list
together with any other information the consular officer finds necessary
to determine eligibility. No other application form is required.
(3) The crew list submitted should contain in alphabetical order the
names of those alien crew members to be considered for inclusion in a
crew-list visa. If the list is not alphabetical, the consular officer
may require a separate alphabetical listing if this will not unduly
delay the departure of the vessel or aircraft.
(4) If a vessel or aircraft destined to the United States will not
call at a port or place where there is a consular office, the crew list
can be submitted for visaing to a consular office at the place nearest
the vessel's port of call.
(c) Fee. A fee in an amount determined by the Schedule of Fees for
Consular Services shall be charged for a crew-list visa except that no
fee shall be charged in the case of an American vessel or aircraft.
(d) Validity. A crew-list visa is valid for a period of 6 months
from the date of issuance and for a single application for admission
into the United States.
(e) Procedure in issuing. (1) In issuing a crew-list visa the
regular nonimmigrant visa stamp as prescribed in 41.113(d) shall be
placed on the last page of the manifest immediately following the last
name listed.
(2) The symbol D shall be inserted in the space provided in the visa
stamp.
(3) The name of the vessel or identifying data regarding the aircraft
shall be entered in the space provided for the name of the visa
recipient.
(4) The signature and title of the consular officer shall be recorded
on the visa. The post impression seal shall be affixed on the visa
stamp if the visa has been stamped by a rubber handstamp.
(5) When a crew-list visa is issued, the consular officer delivers
the original of the document to the master of the vessel or captain of
the aircraft or to an authorized agent for presentation to the
immigration officer at the first port of arrival in the U.S. The dated
duplicate copy is retained for the consular files.
(f) Supplemental crew-list visas. (1) A supplemental crew-list visa
shall be issued at the consular office at which the crew-list visa was
issued or at another consular office to cover any crewman signed on
after the issuance of the crew-list visa and not in possession of a
valid individual D visa.
(2) If the crewman is substituted for another member previously
included in the visa, the substitution shall be indicated in the
supplemental crew list presented for visaing.
(g) Exclusion from and refusal of, crew-list visas -- (1) Exclusion
from crew-list visa. If there is reason to believe that a crew list
submitted for visaing contains the name of any person who is not a bona
fide crewman or who is otherwise ineligible to receive an individual D
visa under INA 101(a)(15)(D), the consular officer shall exclude any
such person from the visa by listing the name of each excluded crew
member below the visa stamp. An excluded crew member's name may not be
stricken from the crew list.
(2) Refusal of crew-list visa. A crew-list visa shall be refused if
all aliens listed thereon are found by the consular officer not to be
bona fide crewmen or otherwise ineligible to receive individual visas as
crew members. In any case where a crew-list visa is refused, a full
report shall be forwarded to reach the Department before the arrival of
the vessel or aircraft at the first port of entry. In any case of
refusal the original crew list shall be returned to the master, aircraft
captain, or authorized agent, and the duplicate shall be filed in the
consular office.
(52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991)
22 CFR 41.42 Subpart F -- Business and Media Visas
22 CFR 41.51 Treaty trader or investor.
(a) Treaty trader. An alien is classifiable as a nonimmigrant treaty
trader (E-1) if the consular officer is satisfied that the alien
qualifies under the provisions of INA 101(a)(15)(E)(i) and that the
alien:
(1) Will be in the United States solely to carry on trade of a
substantial nature, which is international in scope, either on the
alien's behalf or as an agent of a foreign person or organization
engaged in trade, principally between the United States and the foreign
state of which the alien is a national, consideration being given to any
conditions in the country of which the alien is a national which may
affect the alien's ability to carry on such substantial trade; and
(2) Intends to depart from the United States upon the termination of
E-1 status.
(b) Treaty investor. An alien is classifiable as a nonimmigrant
treaty investor (E-2) if the consular officer is satisfied that the
alien qualifies under the provisions of INA 101(a)(15)(E)(ii) and that
the alien:
(1) Has invested or is actively in the process of investing a
substantial amount of capital in a bona fide enterprise in the United
States, as distinct from a relatively small amount of capital in a
marginal enterprise solely for the purpose of earning a living; and
(2) Intends to depart from the United States upon the termination of
E-2 status.
(c) Employee of treaty trader or investor. An alien employee of a
treaty trader may be classified E-1 and an alien employee of a treaty
investor may be classified E-2 if the employee is or will be engaged in
duties of an executive or supervisory character, or, if employed in a
minor capacity, the employee has special qualifications that make the
services to be rendered essential to the efficient operation of the
enterprise. The employer must be:
(1) A person having the nationality of the treaty country, who is
maintaining the status of treaty trader or investor if in the United
States; or
(2) An organization at least 50 percent owned by persons having the
nationality of the treaty country who are maintaining nonimmigrant
treaty trader or investor status if residing in the United States.
(d) Spouse and children of treaty alien. The spouse and children of
a treaty alien accompanying or following to join the treaty alien are
entitled to the same classification as the principal alien. The
nationality of a spouse or child of a treaty alien is not material to
the classification of the spouse or child under the provisions of INA
101(a)(15)(E).
(e) Representatives of foreign information media. Representatives of
foreign information media shall first be considered for possible
classification as nonimmigrants under the provisions of INA
101(a)(15)(I), before consideration is given to their possible
classification as nonimmigrants under the provisions of INA
101(a)(15)(E) and of this section.
22 CFR 41.52 Information media representative.
(a) Representative of foreign press, radio, film, or other
information media. An alien is classifiable as a nonimmigrant
information media representative if the consular officer is satisfied
that the alien qualifies under the provisions of INA 101(a)(15)(I) and
is a representative of a foreign press, radio, film, or other
information medium having its home office in a foreign country, the
government of which grants reciprocity for similar privileges to
representatives of such a medium having home offices in the United
States.
(b) Classification when applicant eligible for both I visa and E
visa. An alien who will be engaged in foreign information media
activities in the United States and meets the criteria set forth in
paragraph (a) of this section shall be classified as a nonimmigrant
under INA 101(a)(15)(I) even if the alien may also be classifiable as a
nonimmigrant under the provisions of INA 101(a)(15)(E).
(c) Spouse and children of information media representative. The
spouse or child of an information media representative is classifiable
under INA 101(a)(15)(I) if accompanying or following to join the
principal alien.
22 CFR 41.53 Temporary workers and trainees.
(a) Requirements for H classification. An alien shall be
classifiable under INA 101(a)(15)(H) if:
(1) The consular officer is satisfied that the alien qualifies under
that section; and
(2) The consular officer has received a petition approved by INS to
accord such classification or an official notification of the approval
thereof; or
(3) The alien shall have presented to the consular officer official
confirmation of the approval by INS of the petition to accord the alien
such classification or of the extension by INS of the period of
authorized stay in such classification; or
(4) The consular officer is satisfied the alien is the spouse or
child of an alien so classified and is accompanying or following to join
the principal alien.
(b) Petition approval. The approval of a petition by the Immigration
and Naturalization Service does not establish that the alien is eligible
to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the
basis of paragraph (a) to this section must not exceed the period
indicated in the petition, notification, or confirmation required in
paragraph (a)(2) or (a)(3) of this section.
(d) Alien not entitled to H classification. The consular officer
must suspend action on the alien's application and submit a report to
the approving INS office if the consular officer knows or has reason to
believe that an alien applying for a visa under INA 101(a)(15)(H) is not
entitled to the classification as approved.
(e) Trainee defined. The term trainee, as used in INA
101(a)(15)(H)(iii), means a nonimmigrant alien who seeks to enter the
United States temporarily at the invitation of an individual,
organization, firm, or other trainer for the purpose of receiving
instruction in any field of endeavor (other than graduate medical
education or training), including agriculture, commerce, communication,
finance, government, transportation, and the professions.
(f) Former exchange visitor. Former exchange visitors who are
subject to the 2-year residence requirement of INA 212(e) are ineligible
to apply for visas under INA 101(a)(15)(H) until they have fulfilled the
residence requirement or obtained a waiver of the requirement.
(56 FR 41069, Aug. 19, 1991)
22 CFR 41.54 Intracompany transferees (executives, managers, and
specialists).
(a) Requirements for L classification. An alien shall be
classifiable under the provisions of INA 101(a)(15)(L) if:
(1) The consular officer is satisfied that the alien qualifies under
the provisions of that section; and
(2) The consular officer has received an individual petition approved
by INS to accord such classification to the alien or an official
notification of the approval thereof; or
(3) The alien has presented to the consular officer official
confirmation of approval by Immigration and Naturalization Service (INS)
of an individual petition according such classification to the alien or
confirmation of the extension by INS of the alien's authorized stay in
such classification; or
(4) The alien has presented to the consular officer an approved
blanket petition or a notification of approval listing those
intracompany relationships and positions which were found to qualify
under INA 101(a)(15)(L); or
(5) The alien has presented to the consular officer a blanket
petition to accord such classification to qualified aliens who are being
transferred to qualifying positions identified in the approved blanket
petition; or
(6) The consular officer is satisfied the alien is the spouse or
child of an alien so classified and is accompanying or following to join
the principal alien.
(b) Petition approval. The approval of a petition by INS does not
establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. (1) The period of validity of a visa issued on
the basis of paragraph (a) to this section must not exceed the period
indicated in the petition, notification, or confirmation required in
paragraph (a)(2), or (a)(3) of this section.
(2) The period of validity of a visa issued on the basis of paragraph
(a) to this section is not limited to the period of validity indicated
in the blanket petition, notification, or confirmation required in
paragraph (a)(4) or (a)(5) of this section.
(d) Alien not entitled to L-1 classification under individual
petition. The consular officer must suspend action on the alien's
application and submit a report to the approving INS office if the
consular officer knows or has reason to believe that an alien applying
for a visa as the beneficiary of an approved individual petition under
INA 101(a)(15)(L) is not entitled to such classification as approved.
(e) Alien not entitled to L-1 classification under blanket petition.
The consular officer shall deny L classification based on a blanket
petition if the documentation presented by the alien claiming to be a
beneficiary thereof does not establish to the satisfaction of the
consular officer that --
(1) The alien has been continuously employed by the same employer, an
affiliate or subsidiary thereof, for 1 year within the 3 years
immediately preceding the application for the L visa;
(2) The alien was occupying a qualifying position throughout that
year; or
(3) The alien is destined to a qualifying position identified in the
petition and in an organization listed in the petition.
(f) Former exchange visitor. Former exchange visitors who are
subject to the 2-year foreign residence requirement of INA 212(e) are
ineligible to apply for visas under INA 101(a)(15)(L) until they have
fulfilled the residence requirement or obtained a waiver of the
requirement.
(56 FR 41069, Aug. 19, 1991)
22 CFR 41.55 Aliens with extraordinary ability.
(a) Requirements for O classification. An alien shall be
classifiable under the provisions of INA 101(a)(15)(O) if:
(1) The consular officer is satisfied that the alien qualifies under
the provisions of that section; and
(2) The consular officer has received a petition approved by INS to
accord such classification or an official notification of the approval
thereof; or
(3) The alien shall have presented to the consular officer official
confirmation of the approval by Immigration and Naturalization Service
(INS) of the petition to accord the alien such classification or of the
extension by INS of the period of authorized stay in such
classification; or
(4) The consular officer is satisfied the alien is the spouse or
child of an alien so classified and is accompanying or following to join
the principal alien.
(b) Approval of visa. The approval of a petition by INS does not
establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the
basis of paragraph (a) to this section must not exceed the period
indicated in the petition, notification, or confirmation required in
paragraph (a)(2) or (a)(3) of this section.
(d) Alien not entitled to O classification. The consular officer
must suspend action on the alien's application and submit a report to
the approving INS office if the consular officer knows or has reason to
believe that an alien applying for a visa under INA 101(a)(15)(O) is not
entitled to the classification as approved.
(56 FR 41070, Aug. 19, 1991)
22 CFR 41.56 Athletes, artists and entertainers.
(a) Requirements for P classification. An alien shall be
classifiable under the provisions of INA 101(a)(15)(P) if:
(1) The consular officer is satisfied that the alien qualifies under
the provisions of that section; and
(2) The consular officer has received a petition approved by
Immigration and Naturalization Service (INS) to accord such
classification or an official notification of the approval thereof; or
(3) The alien shall have presented to the consular officer official
confirmation of the approval by INS of the petition to accord the alien
such classification or of the extension by INS of the period of
authorized stay in such classification; or
(4) The consular officer is satisfied the alien is the spouse or
child of an alien so classified and is accompanying or following to join
the principal alien.
(b) Approval of visa. The approval of a petition by INS does not
establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the
basis of paragraph (a) to this section must not exceed the period
indicated in the petition, confirmation, or extension of stay required
in paragraph (a) (2) or (3) of this section.
(d) Alien not entitled to P classification. The consular officer
must suspend action on the alien's application and submit a report to
the approving INS office if the consular officer knows or has reason to
believe that an alien applying for a visa under INA 101(a)(15)(P) is not
entitled to the classification as approved.
(56 FR 41070, Aug. 19, 1991)
22 CFR 41.57 International cultural exchange visitors.
(a) Requirements for Q classification. An alien shall be
classifiable under the provisions of INA 101(a)(15)(Q) if:
(1) The consular officer is satisfied that the alien qualifies under
the provisions of that section; and
(2) The consular officer has received a petition approved by INS to
accord such classification or an official notification of the approval
thereof; or
(3) The alien shall have presented to the consular officer official
confirmation of the approval by Immigration and Naturalization Service
(INS) of the petition to accord the alien such classification or of the
extension by INS of the period of authorized stay in such
classification.
(b) Approval of petition. The approval of a petition by INS does not
establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the
basis of paragraph (a) of this section must not exceed the period
indicated in the petition, notification, or confirmation required in
paragraph (a)(2) or (a)(3) of this section.
(d) Alien not entitled to Q classification. The consular officer
must suspend action on the alien's application and submit a report to
the approving INS office if the consular officer knows or has reason to
believe that an alien applying for a visa under INA 101(a)(15)(Q) is not
entitled to the classification as approved.
(56 FR 41070, Aug. 19, 1991)
22 CFR 41.58 Aliens in religious occupations.
(a) Requirements for ''R'' classification. An alien shall be
classifiable under the provisions of INA 101(a)(15)(R) if:
(1) The consular officer is satisfied that the alien qualifies under
the provisions of that section; and
(2) The alien, for the 2 years immediately preceding the time of
application for admission, has been a member of religious denomination
having a bona fide nonprofit, religious organization in the United
States; and
(3) The alien seeks to enter the United States solely for the purpose
of
(i) Carrying on the vocation of a minister of that religious
denomination, or
(ii) At the request of the organization, working in a professional
capacity in a religious vocation or occupation for that organization, or
(iii) At the request of the organization, working in a religious
vocation or occupation for the organization, or for a bona fide
organization which is affiliated with the religious denomination
described in section 501(c)(3) of the Internal Revenue Code of 1986;
and
(4) The alien is seeking to enter the United States for a period not
to exceed 5 years to perform the activities described in paragraph (3)
of this section; or
(5) The alien is the spouse or child of an alien so classified and is
accompanying or following to join the principal alien.
(b) Religious denomination. A religious denomination is a religious
group or community of believers. Among the factors that may be
considered in determining whether a group constitutes a bona fide
religious denomination are the presence of some form of ecclesiastical
government, a recognized creed and form of worship, a formal code of
doctrine and discipline, religious services and ceremonies, established
places of religious worship, and religious congregations. For purposes
of this definition, an interdenominational religious organization which
is exempt from taxation pursuant to section 501(c)(3) of the Internal
Revenue Code of 1986 will be treated as a religious denomination.
(c) Bona fide nonprofit religious organization in the United States.
For purposes of this section, a bona fide nonprofit religious
organization is an organization exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986, as it relates to
religious organizations, or one that has never sought such exemption but
establishes to the satisfaction of the consular officer that it would be
eligible therefore if it had applied for tax exempt status.
(d) Bona fide organization which is affiliated with the religious
denomination. A bona fide organization affiliated with the religious
denomination is an organization which is both closely associated with
the religious denomination and exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986, as it relates to
religious organizations.
(e) Minister of religion. A minister is an individual who is duly
authorized by a recognized religious denomination to conduct religious
worship and to perform other duties usually performed by authorized
members of the clergy of that religion. A minister does not include a
lay preacher who is not authorized to perform such duties. In all
cases, there must be a reasonable connection between the activities
performed and the religious calling of a minister.
(f) Professional Capacity. Working in a professional capacity means
engaging in an activity in a religious vocation or occupation which is
defined by INA 101(a)(32) or for which the minimum of a United States
baccalaureate degree (or a foreign equivalent degree) is required for
entry into that field of endeavor.
(g) Religious Occupation. A religious occupation is the habitual
employment or engagement in an activity which relates to a traditional
religious function. Examples of individuals in religious occupations
include, but are not limited to liturgical workers, religious
instructors, religious counselors, cantors, catechists, workers in
religious hospitals or religious health care facilities, missionaries,
religious translators, or religious broadcasters. This group does not
include janitors, maintenance workers, clerks, fund raisers, or persons
solely involved in the solicitation of donations.
(h) Religious Vocation. A religious vocation is a calling to
religious life evidenced by the demonstration of commitment practiced in
the religious denomination, such as the taking of vows. Examples of
individuals with a religious vocation include, but are not limited to
nuns, monks, and religious brothers and sisters.
(i) Alien not entitled to classification under INA 101(a)(15)(R). An
alien who has spent 5 years in the United States under INA 101(a)(15)(R)
is not entitled to classification and visa insurance under that section
unless the alien has resided and been physically present outside the
United States, except for brief visits to the United States for business
or pleasure, for the immediate prior year.
(57 FR 343, Jan. 6, 1992)
22 CFR 41.58 Subpart G -- Students and Exchange Visitors
22 CFR 41.61 Students -- academic and nonacademic.
(a) Definitions -- (1) Academic, in INA 101(a)(15)(F), refers to an
established college, university, seminary, conservatory, academic high
school, elementary school, or other academic institution, or a language
training program.
(2) Nonacademic, in INA 101(a)(15)(M), refers to an established
vocational or other recognized nonacademic institution (other than a
language training program).
(b) Classification. (1) An alien is classifiable under INA 101(a)
(15) (F) (i) of INA 101(a) (15) (M) (i) if the consular officer is
satisfied that the alien qualifies under one of those sections, and:
(i) The alien has been accepted for attendance solely for the purpose
of pursuing a full course of study in an academic institution approved
by the Attorney General for foreign students under INA 101(a) (15) (F)
(i) or a nonacademic institution approved under INA 101(a) (15) (M) (i),
as evidenced by submission of a Form I-20A-B, Certificate of Eligibility
For Nonimmigrant (F-1) Student Status -- For Academic and Language
Students, or Form I-20M-N, Certificate of Eligibility for Nonimmigrant
(M-1) Student Status -- For Vocational Students, properly completed and
signed by the alien and a designated school official;
(ii) The alien possesses sufficient funds to cover expenses while in
the United States or can satisfy the consular officer that other
arrangements have been made to meet those expenses;
(iii) The alien, unless coming to participate exclusively in an
English language training program, has sufficient knowledge of the
English language to undertake the chosen course of study or training.
If the alien's knowledge of English is inadequate, the consular officer
may nevertheless find the alien so classifiable if the accepting
institution offers English language training, and has accepted the alien
expressly for a full course of study in a language with which the alien
is familiar, or will enroll the alien in a combination of courses and
English instruction which will constitute a full course of study; and
(iv) The alien intends, and will be able, to depart upon termination
of student status.
(2) An alien otherwise qualified for classification as a student, who
intends to study the English language exclusively, may be classified as
a student under INA 101(a) (15) (F) (i) even though no credits are given
by the accepting institution for such study. The accepting institution,
however, must offer a full course of study in the English language and
must accept the alien expressly for such study.
(3) The alien spouse and minor children of an alien who has been or
will be issued a visa under INA 101(a) (15) (F) (i) or 101(a) (15) (M)
(i) may receive nonimmigrant visas under INA 101(a) (15) (F) (ii) or
101(a) (15) (M) (ii) if the consular officer is satisfied that they will
be accompanying or following to join the principal alien; that
sufficient funds are available to cover their expenses in the United
States; and, that they intend to leave the United States upon the
termination of the status of the principal alien.
(c) Posting of bond. In borderline cases involving an alien
otherwise qualified for classification under INA 101(a) (15) (F), the
consular officer is authorized to require the posting of a bond with the
Attorney General in a sum sufficient to ensure that the alien will
depart upon the conclusion of studies or in the event of failure to
maintain student status.
22 CFR 41.62 Exchange visitors.
(a) J-1 classification. An alien is classifiable as an exchange
visitor if qualified under the provisions of INA 101(a) (15) (J) and the
consular officer is satisfied that the alien:
(1) Has been accepted to participate, and intends to participate, in
an exchange visitor program designed by the United States Information
Agency as evidenced by the presentation of a properly executed Form
IAP-66, Certificate of Eligibility for Exchange Visitor (J-1) Status;
(2) Has sufficient funds to cover expenses or has made other
arrangements to provide for expenses;
(3) Has sufficient knowledge of the English language to undertake the
program for which selected, or, except for an alien coming to
participate in a graduate medical education or training program, the
sponsoring organization is aware of the language deficiency and has
nevertheless indicated willingness to accept the alien; and
(4) Meets the requirements of INA 212(j) if coming to participate in
a graduate medical education or training program.
(b) J-2 Classification. The spouse or minor child of an alien
classified J-1 is classifiable J-2.
(c) Applicability of INA 212(e). (1) An alien is subject to the
2-year foreign residence requirement of INA 212(e) if:
(i) The alien's participation in one or more exchange programs was
wholly or partially financed, directly or indirectly, by the U.S.
Government or by the government of the alien's country of nationality or
last residence; or
(ii) At the time of the issuance of an exchange visitor visa and
admission to the United States, or, if not required to obtain a
nonimmigrant visa, at the time of admission as an exchange visitor, or
at the time of acquisition of such status after admission, the alien is
a national and resident or, if not a national, a lawful permanent
resident (or has status equivalent thereto) of a country which the
Director of the United States Information Agency has designated, through
publication by public notice in the Federal Register, as clearly
requiring the services of persons engaged in the field of specialized
knowledge or skill in which the alien will engage during the exchange
visitor program; or
(iii) The alien acquires exchange visitor status in order to receive
graduate medical education or training in the United States.
(2) For the purposes of this paragraph the terms ''financed
directly'' and ''financed indirectly'' are defined as set forth in
section 514.1 of Chapter V.
(3) The country in which 2 years' residence and physical presence
will satisfy the requirements of INA 212(e) in the case of an alien
determined to be subject to such requirements is the country of which
the alien is a national and resident, or, if not a national, a lawful
permanent resident (or has status equivalent thereto).
(4) If an alien is subject to the 2-year foreign residence
requirement of INA 212(e), the spouse or child of that alien,
accompanying or following to join the alien, is also subject to that
requirement if admitted to the United States pursuant to INA 101(a) (15)
(J) or if status is acquired pursuant to that section after admission.
(d) Notification to alien concerning 2-year foreign residence
requirement. Before the consular officer issues an exchange visitor
visa, the consular officer must inform the alien whether the alien will
be subject to the 2-year residence and physical presence requirement of
INA 212(e) if admitted to the United States under INA 101(a) (15) (J)
and, if so, the country in which 2 years' residence and physical
presence will satisfy the requirement.
22 CFR 41.62 Subpart H -- Transit Aliens
22 CFR 41.71 Transit aliens.
(a) Transit aliens -- general. An alien is classifiable as a
nonimmigrant transit alien under INA 101(a) (15) (C) if the consular
officer is satisfied that the alien:
(1) Intends to pass in immediate and continuous transit through the
United States;
(2) Is in possession of a common carrier ticket or other evidence of
transportation arrangements to the alien's destination;
(3) Is in possession of sufficient funds to carry out the purpose of
the transit journey, or has sufficient funds otherwise available for
that purpose; and
(4) Has permission to enter some country other than the United States
following the transit through the United States, unless the alien
submits satisfactory evidence that such advance permission is not
required.
(b) Certain aliens in transit to United Nations. An alien within the
provisions of paragraph (3), (4), or (5) of section 11 of the
Headquarters Agreement with the United Nations, to whom a visa is to be
issued for the purpose of applying for admission solely in transit to
the United Nations Headquarters District, may upon request or at the
direction of the Secretary of State be issued a nonimmigrant visa
bearing the symbol C-2. If such a visa is issued, the recipient shall
be subject to such restrictions on travel within the United States as
may be provided in regulations prescribed by the Attorney General.
22 CFR 41.71 Subpart I -- Fiance(e) of a U.S. Citizen
22 CFR 41.81 Fiance(e) of a U.S. Citizen.
(a) Petition requirement. An alien is classifiable as a nonimmigrant
fiance(e) under INA 101(a)(15)(K) if the consular officer is satisfied
that the alien is qualified under that provision and the consular
officer has received a petition filed by the U.S. citizen to confer
nonimmigrant status as a fiance(e) on the alien, which has been approved
by the INS under INA 214(d), or a notification of such approval from
that Service.
(b) Certification of legal capacity and intent to marry. Upon
receipt of a petition approved by INS and the alien's sworn statement of
ability and intent to conclude a valid marriage with the petitioner
within 90 days of arrival in the United States, the consular officer
shall grant the alien the nonimmigrant status accorded in the petition
and shall determine the eligibility of the alien to receive a K-1 visa.
(c) Eligibility as immigrant required. The consular officer, insofar
as practicable, shall determine the eligibility of an alien to receive a
nonimmigrant visa under INA 101(a)(15)(K) as if the alien were an
applicant for an immigrant visa. If the consular officer determines
that the alien would be eligible, under INA 212 (a) and (e) and in all
other respects to receive an immigrant visa, except the alien shall be
exempt from the labor certification requirement of INA 212(a)(5), the
officer may issue a nonimmigrant visa under this section.
(52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991)
22 CFR 41.81 Subpart J -- Application for Nonimmigrant Visa
22 CFR 41.101 Place of application.
(a) Application for regular visa made in consular district of alien's
residence or alien's presence. Unless a consular officer, at the
direction of the Department or as a matter of discretion, will accept a
visa application from an alien who is not a resident of the consular
district but is physically present therein, or the alien is in the
United States and entitled to apply for issuance or reissuance of a visa
under the provisions of 41.111(b), an alien seeking a nonimmigrant visa
shall apply to a consular officer in the consular district in which the
applicant resides or, if the applicant is a resident of Taiwan, to an
officer of the American Institute in Taiwan.
(b) Regular visa defined. ''Regular visa'' means a nonimmigrant visa
of any classification which does not bear the title ''Diplomatic'' or
''Official.'' A nonimmigrant visa is issued as a regular visa unless the
alien falls within one of the classes entitled to a diplomatic or an
official visa as described in 41.26(c) or 41.27(c).
(52 FR 42597, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988)
22 CFR 41.102 Personal appearance of applicant.
(a) Personal appearance required or waived. Except as otherwise
provided in this section, every alien seeking a nonimmigrant visa is
required to apply in person before a consular officer. The requirement
of personal appearance may be waived by the consular officer in the case
of any alien who is:
(1) A child under 14 years of age;
(2) Within a class of nonimmigrants classifiable under the visa
symbols A, C-2, C-3, G, or NATO;
(3) An applicant for a diplomatic or official visa;
(4) Within a class of nonimmigrants classifiable under the visa
symbols B, C-1, H-1, or I;
(5) Within a class of nonimmigrants classifiable under the visa
symbol J-1 who qualifies as a leader in a field of specialized knowledge
or skill and also is the recipient of a U.S. Government grant, and such
an alien's spouse and children qualifying for J-2 classification;
(6) An aircraft crewman, applying for a nonimmigrant visa under the
provisions of INA 101(a)(15)(D), if the application is supported by a
letter from the employing carrier certifying that the applicant is
employed as an aircraft crewman, and the consular officer is satisfied
that the personal appearance of the alien is not necessary to determine
visa eligibility; or
(7) A nonimmigrant in any category, provided the consular officer
determines that a waiver of personal appearance in the individual case
is warranted in the national interest or because of unusual
circumstances, including hardship to the visa applicant.
(b) Interview by consular officer. Except when the requirement of
personal appearance has been waived by the consular officer pursuant to
paragraph (a) of this section, each applicant for a nonimmigrant visa
must be interviewed by a consular officer, who shall determine on the
basis of the applicant's representations and the visa application and
other relevant documentation (1) the proper nonimmigrant classification,
if any, of the alien and (2) the alien's eligibility to receive a visa.
(52 FR 42597, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988)
22 CFR 41.103 Filing an application and Form OF-156.
(a) Filing an application -- (1) Filing of application on Form OF-156
required unless waived. The consular officer may waive submission of an
application, under paragraph (a)(3) of this section, for certain aliens
for whom personal appearance has been waived under 41.102. Except for
persons for whom such waivers have been granted, every alien seeking a
nonimmigrant visa must make application therefor on Form OF-156,
Nonimmigrant Visa Application, unless a prior Form OF-156 is readily
available at the consular office which can be appropriately amended to
bring the application up to date.
(2) Filing of Form OF-156 by alien under 16 or physically incapable.
The application for an alien under 16 years of age or one physically
incapable of completing an application may be completed and executed by
the alien's parent or guardian, or, if the alien has no parent or
guardian, by any person having legal custody of, or a legitimate
interest in, the alien.
(3) Waiver of filing of application. (i) When personal appearance is
waived under 41.102(a)(2) or (3) the consular officer may also waive
the filing of a visa application.
(ii) When personal appearance is waived under 41.102(a)(7), the
consular officer may also waive the filing of a visa application in
cases of hardship, emergency, or national interest.
(iii) Even if personal appearance is waived pursuant to any other
subparagraph of 41.102(a), the requirement for filing an application
may not be waived.
(b) Application form -- (1) Preparation of Form OF-156, Nonimmigrant
Visa Application.
(i) The consular officer shall ensure that Form OF-156 is fully and
properly completed in accordance with the applicable regulations and
instructions.
(ii) If the filing of a visa application is waived by the consular
officer, the officer shall prepare a Form OF-156 on behalf of the
applicant, using the data available in the passport or other documents
which have been submitted.
(2) Additional information as part of application. The consular
officer may require the submission of additional necessary information
or question an alien on any relevant matter whenever the consular
officer believes that the information provided in Form OF-156 is
inadequate to permit a determination of the alien's eligibility to
receive a nonimmigrant visa. Additional statements made by the alien
become a part of the visa application. All documents required by the
consular officer under the authority of 41.105(a) are considered papers
submitted with the alien's application within the meaning of INA
221(g)(1).
(3) Signature. When personal appearance is required, Form OF-156
shall be signed and verified by, or on behalf of, the applicant in the
presence of the consular officer. If personal appearance is waived, but
the submission of an application form by the alien is not waived, the
form shall be signed by the applicant. If the filing of an application
form is also waived, the consular officer shall indicate that the
application has been waived on the Form OF-156 prepared on behalf of the
applicant, as provided in paragraph (b)(1)(ii) of this section. The
consular officer, in every instance, shall initial the Form OF-156 over
or adjacent to the officer's name and title stamp.
(4) Registration. Form OF-156, when duly executed, constitutes the
alien's registration record for the purposes of INA 221(b).
22 CFR 41.104 Passport requirements.
(a) Passports defined. ''Passport'' as defined in INA 101(a)(30) is
not limited to a national passport or to a single document. A passport
may consist of two or more documents which, when considered together,
fulfill the requirements of a passport, provided that the documentary
evidence of permission to enter a foreign country has been issued by a
competent authority and clearly meets the requirements of INA
101(a)(30).
(b) Passport requirement. Except for certain persons in the A, C-3,
G, and NATO classifications and persons for whom the passport
requirement has been waived pursuant to the provisions of INA 212(d)(4),
every applicant for a nonimmigrant visa is required to present a
passport, as defined above and in INA 101(a)(30), which is valid for the
period required by INA 212(a)(7)(B)(i)(I).
(c) A single passport including more than one person. The passport
requirement for a nonimmigrant visa may be met by the presentation of a
passport including more than one person, if such inclusion is authorized
under the laws or regulations of the issuing authority and if a
photograph of each visa applicant 16 years of age or over has been
attached to the passport by the issuing authority.
(d) Applicants for diplomatic visas. Every applicant for a
diplomatic visa must present a diplomatic passport, or the equivalent
thereof, having the period of validity required by INA
212(a)(7)(B)(i)(I), unless such requirement has been waived pursuant to
the authority contained in INA 212(d)(4) or unless the case falls within
the provisions of 41.21(b).
(52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991)
22 CFR 41.105 Supporting documents and fingerprinting.
(a) Supporting documents -- (1) Authority to require documents. The
consular officer is authorized to require documents considered necessary
to establish the alien's eligibility to receive a nonimmigrant visa.
All documents and other evidence presented by the alien, including
briefs submitted by attorneys or other representatives, shall be
considered by the consular officer.
(2) Unobtainable documents. If the consular officer is satisfied
that a document or record required under the authority of this section
is unobtainable, the consular officer may accept satisfactory
alternative pertinent evidence. A document or other record shall be
considered unobtainable if it cannot be procured without causing the
applicant or a member of the applicant's family actual hardship as
distinct from normal delay and inconvenience.
(3) Photographs required or waived. Except as otherwise provided in
this paragraph, every applicant for a nonimmigrant visa must furnish
photographs in such numbers as the consular officer may require. The
photographs must be a reasonable recent likeness, 1 1/2 by 1 1/2 inches
in size, unmounted, with no head covering, and showing a full,
front-face view of the alien against a light background. The alien must
sign (full name) the reverse side of the photographs. The photograph
requirement may be waived by the consular officer for any alien who is:
(i) Within a class of nonimmigrants classifiable under the visa
symbol A, C-3, G, or NATO; or
(ii) An applicant for a diplomatic or official visa; or
(iii) Under 16 years of age.
A notation of any such waiver shall be made on the application in the
space provided for the photograph. A new photograph need not be
required by the consular officer, if there is readily available at post
a photograph submitted with a prior application which reflects a
reasonable current likeness of the applicant.
(4) Police certificates. A police certificate is a certification by
the police or other appropriate authorities stating what, if anything,
their records show concerning the alien. An applicant for a
nonimmigrant visa is required to present a police certificate if the
consular officer has reason to believe that a police or criminal record
exists, except that no police certificate is required in the case of an
alien who is within a class of nonimmigrants classifiable under visa
symbols A-1, A-2, C-3, G-1 through G-4, NATO-1 through NATO-4 or NATO-6.
(b) Fingerprinting. The consular officer may require an alien making
a preliminary or informal application for a visa to have a set of
fingerprints taken on Form AR-4, Alien Registration Fingerprint Chart,
if the officer considers this necessary for the purposes of
identification and investigation. Consular officers may use the
fingerprint card in order to ascertain from the appropriate authorities
whether they have information pertinent to the applicant's eligibility
to receive a visa.
(52 FR 42597, Nov. 5, 1987; 53 FR 9112, 9172, Mar. 21, 1988)
22 CFR 41.106 Processing.
Consular officers must ensure that Form OF-156, Nonimmigrant Visa
Application, is properly and promptly processed in accordance with the
applicable regulations and instructions.
22 CFR 41.107 Visa fees.
(a) Fees based on reciprocity. The fees for the issuance of visas,
including official visas, to nonimmigrant nationals or stateless
residents of each foreign country shall be collected in the amounts
prescribed by the Secretary of State unless, on the basis of
reciprocity, no fee is chargeable. If practicable, fees will correspond
to the total amount of all visa, entry, residence, or other similar
fees, taxes or charges assessed or levied against nationals of the
United States by the foreign countries of which such nonimmigrants are
nationals or stateless residents.
(b) Fees when more than one alien included in visa. A single
nonimmigrant visa may be issued to include all eligible family members
if the spouse and unmarried minor children of a principal alien are
included in one passport. Each alien must execute a separate
application. The name of each family member shall be inserted in the
space provided in the visa stamp. The visa fee to be collected shall
equal the total of the fees prescribed by the Secretary of State for
each alien included in the visa, unless upon a basis of reciprocity a
lesser fee is chargeable.
(c) Certain aliens exempted from fees. Upon a basis of reciprocity,
or as provided in section 13(a) of the Headquarters Agreement with the
United Nations (61 Stat. 716; 22 U.S.C. 287, Note), no fee shall be
collected for the issuance of a nonimmigrant visa to an alien who is
within a class of nonimmigrants classifiable under the visa symbols A,
G, C-2, C-3, or NATO, or who is issued a diplomatic visa.
(d) Refund of fees. A fee collected for the issuance of a
nonimmigrant visa is refundable only if the principal officer at a post
or the officer in charge of a consular section determines that the visa
was issued in error or could not be used as a result of action taken by
the U.S. Government for which the alien was not responsible and over
which the alien had no control.
22 CFR 41.108 Medical examination.
(a) Requirements for medical examination. An applicant for a
nonimmigrant visa shall be required to take a medical examination if:
(1) The alien is an applicant for a K nonimmigrant visa as a
fiance(e) of a U.S. citizen or as the child of such an applicant; or,
(2) The alien is seeking admission for medical treatment and the
consular officer considers a medical examination advisable; or,
(3) The consular officer has reason to believe that a medical
examination might disclose that the alien is medically ineligible to
receive a visa.
(b) Examination by panel physician. The required examination, which
must be carried out in accordance with United States Public Health
Service regulations, shall be conducted by a physician selected by the
alien from a panel of physicians approved by the consular officer or, if
the alien is in the United States, by a medical officer of the United
States Public Health Service or by a contract physician from a list of
physicians approved by the INS for the examination of INA 245 adjustment
of status applicants.
(c) Panel physician facility requirements. A consular officer may
not include the name of a physician on the panel of physicians referred
to in paragraph (b) of this section unless the physician has facilities
to perform required serological and X-ray tests or is in a position to
refer applicants to a qualified laboratory for such tests.
22 CFR 41.108 Subpart K -- Issuance of Nonimmigrant Visa
22 CFR 41.111 Authority to issue visa.
(a) Issuance outside the United States. Any consular officer is
authorized to issue regular and official visas. Diplomatic visas may be
issued only by:
(1) A consular officer attached to a U.S. diplomatic mission, if
authorized to do so by the Chief of Mission; or
(2) A consular officer assigned to a consular office under the
jurisdiction of a diplomatic mission, if so authorized by the Department
or the Chief, Deputy Chief, or Counselor for Consular Affairs of that
mission, or, if assigned to a consular post not under the jurisdiction
of a diplomatic mission, by the principal officer of that post.
(b) Issuance in the United States in certain cases. The Director of
the Visa Office of the Department and such other officers of the
Department as the former may designate are authorized, in their
discretion, to issue nonimmigrant visas, including diplomatic visas, to:
(1) Qualified aliens who are currently maintaining status and are
properly classifiable in the A, C-2, C-3, G or NATO category and intend
to reenter the United States in that status after a temporary absence
abroad and who also present evidence that:
(i) They have been lawfully admitted in that status or have, after
admission, had their classification changed to that status; and
(ii) Their period of authorized stay in the United States in that
status has not expired; and
(2) Other qualified aliens who are currently maintaining status in an
E, H, I, or L nonimmigrant category and intend to reenter the United
States in that status after a temporary absence abroad and who also
present evidence that;
(i) They were previously issued visas at a consular office abroad and
admitted to the United States in the status which they are currently
maintaining; and
(ii) Their period of authorized admission in that status has not
expired.
22 CFR 41.112 Validity of visa.
(a) Significance of period of validity of visa. The period of
validity of a nonimmigrant visa is the period during which the alien may
use it in making application for admission. The period of visa validity
has no relation to the period of time the immigration authorities at a
port of entry may authorize the alien to stay in the United States.
(b) Validity of visa and number of applications for admission. (1)
Except as provided in paragraph (c) of this section, a nonimmigrant visa
shall have the validity prescribed in schedules provided to consular
officers by the Department, reflecting insofar as practicable the
reciprocal treatment accorded U.S. nationals by the government of the
country of which the alien is a national or stateless resident.
(2) Nonimmigrant visas issued pursuant to INA 101(a)(15)(B) may be
made valid indefinitely and for unlimited applications for admission for
aliens who:
(i) Are nationals of countries that offer reciprocal treatment to
U.S. citizens, as determined by the Department;
(ii) Are in possession of a valid passport; and
(iii) Are bona fide visitors and will continue to seek to enter the
United States only for such purpose for an indefinite period of time, in
the judgment of the consular officer.
(3) An indefinite validity visa is valid for application for
admission even if the passport in which the visa is stamped has expired,
provided the alien is also in possession of a valid passport issued by
the authorities of the country of which the alien is a national.
(c) Limitation on validity. If warranted in an individual case, a
consular officer may issue a nonimmigrant visa for:
(1) A period of validity that is less than that prescribed on a basis
of reciprocity,
(2) A number of applications for admission within the period of the
validity of the visa that is less than that prescribed on a basis of
reciprocity,
(3) Application for admission at a specified port or at specified
ports of entry, or
(4) Use on and after a given date subsequent to the date of issuance.
(d) Automatic extension of validity at ports of entry. (1) Provided
that the requirements set out in paragraph (d)(2) of this section are
fully met, the following provisions apply to nonimmigrant aliens seeking
readmission at ports of entry:
(i) The validity of an expired nonimmigrant visa issued under INA
101(a)(15) may be considered to be automatically extended to the date of
application for readmission, and
(ii) In cases where the original nonimmigrant classification of an
alien has been changed by INS to another nonimmigrant classification,
the validity of an expired or unexpired nonimmigrant visa may be
considered to be automatically extended to the date of application for
readmission, and the visa may be converted as necessary to that changed
classification.
(2) The provisions in paragraph (d)(1) of this section are applicable
only in the case of a nonimmigrant alien who:
(i) Is in possession of a Form I-94, Arrival-Departure Record,
endorsed by INS to show an unexpired period of initial admission or
extension of stay, or, in the case of a qualified F or J student or
exchange visitor or the accompanying spouse or child of such an alien,
is in possession of a current Form I-20, Certificate of Eligibility for
Nonimmigrant Student Status, or Form IAP-66, Certificate of Eligibility
for Exchange Visitor Status, issued by the school the student has been
authorized to attend by INS, or by the sponsor of the exchange program
in which the alien has been authorized to participate by INS, and
endorsed by the issuing school official or program sponsor to indicate
the period of initial admission or extension of stay authorized by INS;
(ii) Is applying for readmission after an absence not exceeding 30
days solely in contiguous territory, or, in the case of a student or
exchange visitor or accompanying spouse or child meeting the
stipulations of paragraph (d)(2)(i) of this section, after an absence
not exceeding 30 days in contiguous territory or adjacent islands other
than Cuba;
(iii) Has maintained and intends to resume nonimmigrant status;
(iv) Is applying for readmission within the authorized period of
initial admission or extension of stay;
(v) Is in possession of a valid passport; and
(vi) Does not require authorization for admission under INA
212(d)(3).
(3) The provisions in paragraphs (d)(1) and (d)(2) of this section
shall not apply to nationals of Iraq.
(52 FR 42597, Nov. 5, 1987; 53 FR 9112, 9172, Mar. 21, 1988, as
amended at 55 FR 36028, Oct. 31, 1990)
22 CFR 41.113 Procedures in issuing visas.
(a) Visa evidenced by stamp placed in the passport. Except as
provided in paragraph (b) of this section, a nonimmigrant visa shall be
evidenced by a stamp placed in the alien's passport. The appropriate
symbol as prescribed in 41.12, showing the classification of the alien
shall be entered in the visa.
(b) Cases in which visa not placed in passport. In the following
cases the visa shall be placed on the prescribed Form OF-232, Form for
Nonimmigrant Visa Stamp, to which a photograph of the alien shall be
attached under seal. In issuing such a visa, a notation shall be made
on the Form OF-232 on which the visa is placed specifying the pertinent
subparagraph of this paragraph under which the action is taken.
(1) The alien's passport was issued by a government with which the
United States does not have formal diplomatic relations, unless the
Department has specifically authorized the placing of the visa in such
passport;
(2) The alien's passport does not provide sufficient space for the
visa stamp;
(3) The passport requirement has been waived; or
(4) In other cases as authorized by the Department.
(c) Indefinite validity visa. In no instance may a visa issued
pursuant to INA 101(a)(15)(B) and having indefinite validity as provided
in 41.112(b) be placed in any document other than a valid passport.
(d) Visa stamp. (1) The nonimmigrant visa shall be in the format
designated by the Department and contain the following data:
(i) The number of the visa;
(ii) The location of the issuing office;
(iii) The classification of the visa;
(iv) The date of issuance;
(v) The expiration date or, if an indefinite validity visa is issued
on the baisis of reciprocity, the word ''indefinitely'';
(vi) The number of applications for admission for which it is valid
or the word ''multiple'';
(vii) The name(s) of the person(s) to whom issued, unless the word
''Bearer(s)'' is used as authorized by paragraph (e)(1) of this section;
and
(viii) The signature or facsimile signature of the issuing officer.
(2) The format of a diplomatic visa is the same as a regular
nonimmigrant visa, except that it bears the title ''DIPLOMATIC''.
(3) The format of an official visa is the same as a regular
nonimmigrant visa, except that it bears the title ''OFFICIAL''.
(e) Insertion of name; petition and derivative status notation. (1)
Except as otherwise provided in this paragraph, the name(s) of the
alien(s) to whom a nonimmigrant visa is issued shall be shown on the
visa just after the word ''to.'' In visas issued in passports (or in
other travel documents meeting the requirements of INA 101(a)(30)) which
have been approved by the Department for this purpose, consular officers
may insert the word ''Bearer(s)'' in lieu of the name of the alien and
in lieu of the names of accompanying family members who are included in
the alien's passport. The procedure for a ''Bearer(s)'' insert may not
be applied in the case of aliens who are the beneficiaries of waivers
granted under INA 212(d)(3) or in the issuance of a visa on Form OF-232.
(2) If the visa is being issued upon the basis of a petition approved
by the Attorney General, the number of the petition, if any, the period
for which the alien's admission has been authorized, and the name of the
petitioner shall be noted immediately below the visa.
(3) In the case of an alien who derives status from a principal
alien, the name and position of the principal alien shall be written
below the lower margin of the visa.
(f) Period of validity. If a nonimmigrant visa is issued for an
unlimited number of applications for admission within the period of
validity, the word ''multiple'' shall be appropriately placed in the
visa. Otherwise the number of permitted applications for admission
shall be shown in word form. The date of issuance and the date of
expiration of the visa shall be shown at the appropriate places in the
visa by day, month and year in that order. The standard three letter
abbreviation for the month shall be used in all cases. If a visitor
visa is to be made valid for an indefinite period, the word
''indefinitely'' shall be inserted in the space provided for the
expiration date of the visa.
(g) Restriction to specified port of entry. If a nonimmigrant visa
is valid for admission only at one or more specified ports of entry, the
names of those ports shall be entered immediately below the expiration
date of the visa, preceded by the word ''at.''
(h) Signature. The signature or facsimile signature of the consular
officer issuing the visa shall appear in the visa.
(i) Delivery of visa and disposition of form OF-156. In issuing a
nonimmigrant visa, the consular officer shall deliver the visaed
passport, or the prescribed Form OF-232 which bears the visa, to the
alien or, if personal appearance has been waived, to the authorized
representative. The executed Form OF-156, Nonimmigrant Visa
Application, and any additional evidence furnished by the alien in
accordance with 41.103(b) shall be retained in the consular files.
(j) Disposition of supporting documents. Original supporting
documents furnished by the alien shall be returned for presentation, if
necessary, to immigration authorities at the port of entry and a
notation to that effect shall be made on the Form OF-156. Duplicate
copies may be retained in the consular files.
(k) Olympic Games, Pan American Games or other regional games.
Notwithstanding the provisions of paragraph (d) of this section, in the
case of an alien who:
(l) Is a participant in the Summer or Winter Olympic Games, the Pan
American Games or other regional games under the auspices of the
International Olympic Committee, held in the United States; and
(2) Is the holder of an official identity card which has been issued
for participation in such Games under the Olympic Rules Bylaws, which
includes the signature of a competent authority of the participating
government and the assurance of that government's recognition of the
card for re-entry by the bearer for an additional period of six months
beyond the expiration date of the card, and which otherwise meets the
requirements of section 101(a)(3) and 212(a)(7)(B)(i)(I) of the
Immigration and Nationality Act, a stamp consisting of:
(i) The imprint of the issuing post's rubber stamp seal; and
(ii) The signature of a consular officer affixed on the identity card
shall constitute a multiple entry B-1/B-2 visa valid for the duration of
the card, or, in the case of a representative of foreign press, radio,
film or other foreign information media, a multiple entry I visa valid
for the duration of the card.
(52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991)
22 CFR 41.114 Transfer of visas.
(a) Conditions for transfer. Upon the request of the bearer a valid
nonimmigrant visa shall be transferred from one travel document to a
different travel document which is valid for the required period if the
bearer is found eligible to receive such a visa, except in a case in
which the travel document containing the original visa has been lost or
stolen. A visa may be transferred only if the new passport indicates
that the alien's nationality is the same as when the visa was issued.
(b) Procedure for transfer. Application for the transfer of a
nonimmigrant visa from one passport to another shall be made on an
appropriate form. The consular officer may waive the personal
appearance of the alien. The issuance of a transferred visa shall be
evidenced by placing the visa stamp with all of the original data in the
alien's passport. The validity of the transferred visa shall be the
same as that of the original visa. The transferred visa shall be valid
for the number of applications for admission remaining as of the date of
the transfer. The word ''TRANSFERRED'' shall be inserted on the upper
margin of the visa stamp.
(c) Cancellation of visa in old passport. Unless the passport in
which the original visa was issued has been surrendered to the issuing
authority, the original visa shall be canceled at the time of its
transfer to the new travel document, except, when a visa is transferred
for only some of several persons included in the original visa, that
visa is not to be canceled but the names of the persons whose visas are
transferred are to be stricken from the original visa.
(d) Fee for transfer. No fee shall be charged for the transfer of a
valid nonimmigrant visa.
22 CFR 41.114 Subpart L -- Refusals and Revocations
22 CFR 41.121 Refusal of individual visas.
(a) Grounds for refusal. Nonimmigrant visa refusals must be based on
legal grounds, that is, one or more provisions of INA 212(a) or (e), INA
214(b), or INA 221(g). Certain classes of nonimmigrant aliens are
exempted from specific provisions of INA 212(a) under INA 102, and, upon
a basis of reciprocity, under INA 212(d)(8). When a visa application
has been properly completed and executed in accordance with the
provisions of INA and the implementing regulations, the consular officer
must either issue or refuse the visa.
(b) Refusal procedure. If a consular officer knows or has reason to
believe that an alien is ineligible to receive a visa on grounds of
ineligibility which cannot be overcome by the presentation of additional
evidence, the officer shall refuse the visa and, if practicable, shall
require a nonimmigrant visa application to be executed before the
refusal is recorded. In the case of a visa refusal the consular officer
shall inform the applicant of the provision of law or regulations upon
which the refusal is based. If the alien fails to execute a visa
application after being informed by the consular officer of a ground of
ineligibility to receive a nonimmigrant visa, the visa shall be
considered refused. The officer shall then insert the pertinent data on
the visa application, noting the reasons for the refusal, and the
application form shall be filed in the consular office. Upon refusing a
nonimmigrant visa, the consular officer shall retain the original or a
copy of each document upon which the refusal was based as well as each
document indicating a possible ground of ineligibility and may return
all other supporting documents supplied by the applicant.
(c) Review of refusal at consular office. If the ground(s) of
ineligibility upon which the visa was refused cannot be overcome by the
presentation of additional evidence, the principal consular officer, or
a specifically designated alternate, shall review the case without
delay, record the review decision, and sign and date the prescribed
form. If the ground(s) of ineligibility may be overcome by the
presentation of additional evidence, and the applicant has indicated the
intention to submit such evidence, a review of the refusal may be
deferred for not more than 120 days. If the principal consular officer
or alternate does not concur in the refusal, that officer shall either
(1) Refer the case to the Department for an advisory opinion, or
(2) Assume responsibility for the case by reversing the refusal.
(d) Review of refusal by Department. The Department may request a
consular officer in a specific case or in specified classes of cases to
submit a report if a visa has been refused. The Department will review
each report and may furnish an advisory opinion to the consular officer
for assistance in considering the case further. If the officer believes
that action contrary to an advisory opinion should be taken, the case
shall be resubmitted to the Department with an explanation of the
proposed action. Rulings of the Department concerning an interpretation
of law, as distinguished from an application of the law to the facts,
shall be binding upon consular officers.
(52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991)
22 CFR 41.122 Revocation of visas.
(a) Grounds for revocation by consular officers. A consular officer
is authorized to revoke a nonimmigrant visa issued to an alien if:
(1) The officer finds that the alien was not, or has ceased to be,
entitled to the nonimmigrant classification under INA 101(a)(15)
specified in the visa or that the alien was at the time the visa was
issued, or has since become, ineligible under INA 212(a) to receive a
visa;
(2) The visa has been physically removed from the passport in which
it was issued prior to the alien's embarkation upon a continuous voyage
to the United States; or
(3) For any of the reasons specified in paragraph (h) of this section
if the visa has not been revoked by an immigration officer as authorized
in that paragraph.
(b) Notice of proposed revocation. When consideration is being given
to the revocation of a nonimmigrant visa under paragraph (a)(1) or (2)
of this section, the consular officer considering that action shall, if
practicable, notify the alien to whom the visa was issued of intention
to revoke the visa. The alien shall also be given an opportunity to
show why the visa should not be revoked and requested to present the
travel document in which the visa was originally issued.
(c) Procedure for physically cancelling visas. A nonimmigrant visa
which is revoked shall be canceled by writing or stamping the word
''REVOKED'' plainly across the face of the visa. The cancellation shall
be dated and signed by the officer taking the action. The failure of
the alien to present the visa for cancellation does not affect the
validity of action taken to revoke it.
(d) Notice to carriers. Notice of revocation shall be given to the
master, aircraft captain, agent, owner, charterer, or consignee of the
carrier or transportation line on which it is believed the alien intends
to travel to the United States, unless the visa has been physically
canceled as provided in paragraph (c) of this section.
(e) Notice to Department. When a visa is revoked under paragraph
(a)(1) or (2) of this section, the consular officer shall promptly
submit notice of the revocation, including a full report on the facts in
the case, to the Department for transmission to INS. A report is not
required if the visa is physically canceled prior to the alien's
departure for the United States except in cases involving A, G, C-2,
C-3, NATO, diplomatic or official visas.
(f) Record of action. Upon revocation of a nonimmigrant visa under
paragraph (a)(1) or (2) of this section, the consular officer shall
complete for the post files a Certificate of Revocation by Consular
Officer which includes a statement of the reasons for the revocation.
If the revocation is effected at other than the issuing office, a copy
of the Certificate of Revocation shall be sent to that office.
(g) Reconsideration of revocation. (1) The consular office shall
consider any evidence submitted by the alien or the alien's attorney or
representative in connection with a request that the revocation be
reconsidered. If the officer finds that the evidence is sufficient to
overcome the basis for the revocation, a new visa shall be issued. A
memorandum regarding the action taken and the reasons therefor shall be
placed in the consular files and appropriate notification shall be made
promptly to the carriers concerned, the Department, and the issuing
office if notice of revocation has been given in accordance with
paragraphs (d), (e), and (f) of this section.
(2) In view of the provisions of 41.107(d) providing for the refund
of fees when a visa has not been used as a result of action by the U.S.
Government, a fee shall not be charged in connection with a reinstated
visa.
(h) Revocation of visa by immigration officer. An immigration
officer is authorized to revoke a valid visa by physically canceling it
in accordance with the procedure prescribed in paragraph (c) of this
section if:
(1) The alien obtains an immigrant visa or an adjustment of status to
that of permanent resident;
(2) The alien is ordered excluded from the United States pursuant to
INA 235(c) or 236;
(3) The alien is notified pursuant to INA 235(b) by an immigration
officer at a port of entry that the alien appears to be inadmissible to
the United States and the alien requests and is granted permission to
withdraw the application for admission;
(4) A final order of deportation or a final order granting voluntary
departure with an alternate order of deportation is entered against the
alien pursuant to INS regulations;
(5) The alien has been permitted by INS to depart voluntarily from
the United States pursuant to INS regulations;
(6) A waiver of ineligibility pursuant to INA 212(d)(3)(A) on the
basis of which the visa was issued to the alien is revoked by INS;
(7) The visa is presented in connection with an application for
admission to the United States by a person other than the alien to whom
it was issued; or
(8) The visa has been physically removed from the passport in which
it was issued.
22 CFR 41.122 Pt. 42
22 CFR 41.122 PART 42 -- VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
22 CFR 41.122 Subpart A -- Visa and Passport Not Required for Certain
Immigrants
Sec.
42.1 Aliens not required to obtain immigrant visas.
42.2 Aliens not required to present passports.
22 CFR 41.122 Subpart B -- Classification and Foreign State
Chargeability
42.11 Classification symbols.
42.12 Rules of chargeability.
22 CFR 41.122 Subpart C -- Immigrants Not Subject to Numerical
Limitations of INA 201 and 202
42.21 Immediate relatives.
42.22 Returning resident aliens.
42.23 Certain former U.S. citizens.
22 CFR 41.122 Subpart D -- Immigrants Subject to Numerical Limitations
42.31 Family-sponsored immigrants.
42.32 Employment-based preference immigrants.
42.33 Diversity immigrants. (Reserved)
22 CFR 41.122 Subpart E -- Petitions
42.41 Effect of approved petition.
42.42 Petitions for immediate relative or preference status.
42.43 Suspension or termination of action in petition cases.
22 CFR 41.122 Subpart F -- Numerical Controls and Priority Dates
42.51 Department control of numerical limitations.
42.52 Post records of visa applications.
42.53 Priority date of individual applicants.
42.54 Order of consideration.
42.55 Reports on numbers and priority dates of applications on
record.
22 CFR 41.122 Subpart G -- Application for Immigrant Visas
42.61 Place of application.
42.62 Personal appearance and interview of applicant.
42.63 Application forms and other documentation.
42.64 Passport requirements.
42.65 Supporting documents.
42.66 Medical examination.
42.67 Execution of application, registration, and fingerprinting.
42.68 Informal evaluation of family members if principal applicant
precedes them.
22 CFR 41.122 Subpart H -- Issuance of Immigrant Visas
42.71 Authority to issue visas; visa fees.
42.72 Validity of visas.
42.73 Procedure in issuing visas.
42.74 Issuance of new or replacement visas.
22 CFR 41.122 Subpart I -- Refusal, Revocation, and Termination of
Registration
42.81 Procedure in refusing individual visas.
42.82 Revocation of visas.
42.83 Termination of registration.
Authority: 8 U.S.C. 1104; 8 U.S.C. 1101 note; 8 U.S.C. 1153; 8
U.S.C. 1101(a)(27), unless otherwise noted.
Source: 52 FR 42613, Nov. 5, 1987, unless otherwise noted.
22 CFR 41.122 Subpart A -- Visa and Passport Not Required for Certain Immigrants
22 CFR 42.1 Aliens not required to obtain immigrant visas.
An immigrant within any of the following categories is not required
to obtain an immigrant visa:
(a) Aliens lawfully admitted for permanent residence. An alien who
has previously been lawfully admitted for permanent residence and who is
not required under the regulations of INS to present a valid immigrant
visa upon returning to the United States.
(b) Alien members of U.S. Armed Forces. An alien member of the U.S.
Armed Forces bearing military identification, who has previously been
lawfully admitted for permanent residence and is coming to the United
States under official orders or permit of those Armed Forces.
(c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands.
An alien who has previously been lawfully admitted for permanent
residence who seeks to enter the continental United States or any other
place under the jurisdiction of the United States directly from Guam,
Puerto Rico, or the Virgin Islands of the United States.
(d) Child born after issuance of visa to accompanying parent. An
alien child born after the issuance of an immigrant visa to an
accompanying parent, who will arrive in the United States with the
parent, and apply for admission during the period of validity of the
visa issued to the parent.
(e) Child born of a national or lawful permanent resident mother
during her temporary visit abroad. An alien child born during the
temporary visit abroad of a mother who is a national or lawful permanent
resident of the United States if applying for admission within 2 years
of birth and accompanied by either parent applying and eligible for
readmission as a permanent resident upon that parent's first return to
the United States after the child's birth.
(f) American Indians born in Canada. An American Indian born in
Canada and having at least 50 per centum of blood of the American Indian
race.
22 CFR 42.2 Aliens not required to present passports.
An immigrant within any of the following categories is not required
to present a passport in applying for an immigrant visa:
(a) Certain relatives of U.S. citizens. An alien who is the spouse,
unmarried son or daughter, or parent, of a U.S. citizen, unless the
alien is applying for a visa in the country of which the applicant is a
national and the possession of a passport is required for departure.
(b) Returning aliens previously lawfully admitted for permanent
residence. An alien previously lawfully admitted for permanent
residence who is returning from a temporary visit abroad, unless the
alien is applying for a visa in the country of which the applicant is a
national and the possession of a passport is required for departure.
(c) Certain relatives of aliens lawfully admitted for permanent
residence. An alien who is the spouse, unmarried son or daughter, or
parent of an alien lawfully admitted for permanent residence, unless the
alien is applying for a visa in the country of which the applicant is a
national and the possession of a passport is required for departure.
(d) Stateless persons. An alien who is a stateless person, and
accompanying spouse and unmarried son or daughter.
(e) Nationals of Communist-controlled countries. An alien who is a
national of a Communist-controlled country and who is unable to obtain a
passport from the government of that country, and accompanying spouse
and unmarried son or daughter.
(f) Alien members of U.S. Armed Forces. An alien who is a member of
the U.S. Armed Forces.
(g) Beneficiaries of individual waivers. (1) An alien who would be
within one of the categories described in paragraphs (a) through (d) of
this section except that the alien is applying for a visa in a country
of which the applicant is a national and possession of a passport is
required for departure, in whose case the passport requirement has been
waived by the Secretary of State, as evidence by a specific instruction
from the Department.
(2) An alien unable to obtain a passport and not within any of the
foregoing categories, in whose case the passport requirement imposed by
42.64(b) or by INS regulations has been waived by the Attorney General
and the Secretary of ymbols.
A visa issued to an immigrant alien within one of the classes
described below shall bear an appropriate visa symbol to show the
classification of the alien.
(56 FR 49680, Oct. 1, 1991)
22 CFR 42.12 Rules of chargeability.
22 CFR 42.12 Rules of chargeability.
(a) Applicability. An immigrant shall be charged to the numerical
limitation for the foreign state or dependent area of birth, unless the
case falls within one of the exceptions to the general rule of
chargeability provided by INA 202(b) and paragraphs (b) through (e) of
this section to prevent the separation of families or the alien is
classifiable under:
(1) INA 201(b);
(2) INA 101(a)(27) (A) or (B);
(3) Section 112 of Public Law 101-649;
(4) Section 124 of Public Law 101-649;
(5) Section 132 of Public Law 101-649;
(6) Section 134 of Public Law 101-649; or
(7) Section 584(b)(1) as contained in section 101(e) of Public Law
100-202.
(b) Exception for child. If necessary to prevent the separation of a
child from the alien parent or parents, an immigrant child, including a
child born in a dependent area, may be charged to the same foreign state
to which a parent is chargeable if the child is accompanying or
following to join the parent, in accordance with INA 202(b)(1).
(c) Exception for spouse. If necessary to prevent the separation of
husband and wife, an immigrant spouse, including a spouse born in a
dependent area, may be charged to a foreign state to which a spouse is
chargeable if accompanying or following to join the spouse, in
accordance with INA 202(b)(2).
(d) Exception for alien born in the United States. An immigrant who
was born in the United States shall be charged to the foreign state of
which the immigrant is a citizen or subject. If not a citizen or
subject of any country, the alien shall be charged to the foreign state
of last residence as determined by the consular officer, in accordance
with INA 202(b)(3).
(e) Exception for alien born in foreign state in which neither parent
was born or had residence at time of alien's birth. An alien who was
born in a foreign state, as defined in 40.1, in which neither parent
was born, and in which neither parent had a residence at the time of the
applicant's birth, may be charged to the foreign state of either parent
as provided in INA 202(b)(4). The parents of such an alien are not
considered as having acquired a residence within the meaning of INA
202(b)(4), if, at the time of the alien's birth within the foreign
state, the parents were visiting temporarily or were stationed there in
connection with the business or profession and under orders or
instructions of an employer, principal, or superior authority foreign to
such foreign state.
(52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49681, Oct. 1, 1991)
22 CFR 42.12 Subpart C -- Immigrants Not Subject to Numerical
Limitations of INA 201 and 202
Source: 56 FR 49676, Oct. 1, 1991, unless otherwise noted.
22 CFR 42.21 Immediate relatives.
(a) Entitlement to status.
An alien who is a spouse or child of a United States citizen, or a
parent of a U.S. citizen at least 21 years of age, shall be classified
as an immediate relative under INA 201(b) if the consular officer has
received from INS an approved Petition to Classify Status of Alien
Relative for Issuance of an Immigrant Visa, filed on the alien's behalf
by the U.S. citizen and approved in accordance with INA 204, and the
officer is satisfied that the alien has the relationship claimed in the
petition. An immediate relative shall be documented as such unless the
U.S. citizen refuses to file the required petition, or unless the
immediate relative is also a special immigrant under INA 101(a)(27) (A)
or (B) and not subject to any numerical limitation.
(b) Spouse of a deceased U.S. Citizen. The spouse of a deceased U.S.
citizen shall be entitled to immediate relative status after the date of
the citizen's death provided he or she meets the criteria of INA
201(b)(2)(A)(i) and the consular office has received an approved
petition from the INS which accords such status, or official
notification of such approval, and the consular officer is satisfied
that the alien meets those criteria.
22 CFR 42.22 Returning resident aIiens.
(a) Requirements for returning resident status.
An alien shall be classifiable as a special immigrant under INA
101(a)(27)(A) if the consular officer is satisfied from the evidence
presented that:
(1) The alien had the status of an alien lawfully admitted for
permanent residence at the time of departure from the United States;
(2) The alien departed from the United States with the intention of
returning and has not abandoned this intention; and
(3) The alien is returning to the United States from a temporary
visit abroad and, if the stay abroad was protracted, this was caused by
reasons beyond the alien's control and for which the alien was not
responsible.
(b) Documentation needed. Unless the consular officer has reason to
question the legality of the alien's previous admission for permanent
residence or the alien's eligibility to receive an immigrant visa, only
those records and documents required under INA 222(b) which relate to
the period of residence in the United States and the period of the
temporary visit abroad shall be required. If any required record or
document is unobtainable, the provisions of 42.65(d) shall apply.
(c) Relief provisions for certain returning resident aliens under INA
212(c). The exercise by the Attorney General of discretionary authority
under INA 212(c) to grant relief from certain grounds of ineligibility
(other than those specified therein) to certain returning resident
aliens shall remove the alien's ineligibility to receive a visa only
under the conditions specified in the Attorney General's order. This
relief shall not apply to an alien who has been convicted of an
aggravated felony and has served a term of imprisonment of at least 5
years.
(d) Returning resident alien originally admitted under the Act of
December 28, 1945. An alien admitted into the United States under
Section 1 of the Act of December 28, 1945 (''GI Brides Act'') shall not
be refused an immigrant visa after a temporary absence abroad solely
because of a mental or physical defect or defects that existed at the
time of the original admission.
22 CFR 42.23 Certain former U.S. citizens.
(a) Women expatriates. An alien woman, regardless of marital status,
shall be classifiable as a special immigrant under INA 101(a)(27)(B) if
the consular officer is satisfied by appropriate evidence that she was
formerly a U.S. citizen and that she meets the requirements of INA
324(a).
(b) Military expatriates. An alien shall be classifiable as a
special immigrant under INA 101(a)(27)(B) if the consular officer is
satisfied by appropriate evidence that the alien was formerly a U.S.
citizen and that the alien lost citizenship under the circumstances set
forth in INA 327.
22 CFR 42.23 Subpart D -- Immigrants Subject to Numerical Limitations
Source: 56 FR 49676, Oct. 1, 1991, unless otherwise noted.
22 CFR 42.31 Family-sponsored immigrants.
(a) Entitlement to status.
An alien shall be classifiable as a family-sponsored immigrant under
INA 203(a) (1), (2), (3) or (4) if the consular officer has received
from INS a Petition to Classify Status of Alien Relative for Issuance of
Immigrant Visa approved in accordance with INA 204 to accord the alien
such preference status, or official notification of such an approval,
and the consular officer is satisfied that the alien has the
relationship to the petitioner indicated in the petition. In the case
of a petition according an alien status under INA 203(a) (1) or (3) or
status as an unmarried son or daughter under INA 203(a)(2), the
petitioner must be a ''parent'' as defined in INA 101(b)(2) and 22 CFR
40.1. In the case of a petition to accord an alien status under INA
203(a)(4) filed on or after January 1, 1977, the petitioner must be at
least twenty-one years of age.
(b) Entitlement to derivative status. Pursuant to INA 203(d), and
whether or not named in the petition, the child of a family-sponsored
first, second, third or fourth preference immigrant or the spouse of a
family-sponsored third or fourth preference immigrant, if not otherwise
entitled to an immigrant status and the immediate issuance of a visa, is
entitled to a derivative status corresponding to the classification and
priority date of the beneficiary of the petition.
(c) Spouses and children of legalized aliens. An alien shall be
classifiable as a spouse or child of a legalized alien pursuant to
Section 112 of Public Law 101-649, if the consular officer has received
from INS an approved petition which accords such status, or official
notification of such an approval, and the consular officer is satisfied
that the alien is within the class described in that section.
22 CFR 42.32 Employment based preference immigrants.
Aliens subject to the worldwide level specified in section 201(d) for
employment-based immigrants in a fiscal year shall be allotted visas as
indicated below.
(a) First preference. -- Priority workers. (1) Entitlement to
status. An alien shall be classifiable as an employment-based first
preference immigrant under INA 203(b)(1) if the consular office has
received from INS a Petition for Immigrant Worker approved in accordance
with INA 204 to accord the alien such Preference status, or official
notification of such an approval, and the consular officer is satisfied
that the alien is within one of the classes described in INA 203(b)(1).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and
whether or not named in the petition, the child or spouse of an
employment-based first preference immigrant, if not otherwise entitled
to an immigrant status and the immediate issuance of a visa, is entitled
to a derivative status corresponding to the classification and priority
date of the beneficiary of the petition.
(b) Second preference -- Professionals with advanced degrees or
persons of exceptional ability -- (1) Entitlement to status. An alien
shall be classifiable as an employment-based second preference immigrant
under INA 203(b)(2) if the consular officer has received from INS a
Petition for Immigrant Worker approved in accordance with INA 204 to
accord the alien such preference status, or official notification of
such an approval, and the consular officer is satisfied that the alien
is within one of the classes described in INA 203(b)(2).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and
whether or not named in the petition, the child or spouse of an
employment-based second preference immigrant, if not otherwise entitled
to an immigrant status and the immediate issuance of a visa, is entitled
to a derivative status corresponding to the classification and priority
date of the beneficiary of the petition.
(c) Third preference -- Skilled workers, professionals, other workers
-- (1) Entitlement to status. An alien shall be classifiable as an
employment-based third preference immigrant under INA 203(b)(3) if the
consular officer has received from INS a Petition for Immigrant Worker
approved in accordance with INA 204 to accord the alien such preference
status, or official notification of such an approval, and the consular
officer is satisfied that the alien is within one of the classes
described in INA 203(b)(3).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and
whether or not named in the petition, the child or spouse of an
employment-based third preference immigrant, if not otherwise entitled
to an immigrant status and the immediate issuance of a visa, is entitled
to a derivative status corresponding to the classification and priority
date of the beneficiary of the petition.
(d) Fourth preference -- Special immigrants -- (1) Religious workers.
(i) Classification based on qualifications under INA 101(A)(27)(C). An
alien shall be classifiable under INA 203(b)(4) as a special immigrant
described in INA 101(a)(27)(C) if:
(A) The consular officer has received a petition approved by INS to
accord such classification, or an official notification of such
approval; and
(B) The consular officer is satisfied from the evidence presented
that the alien qualifies under that section; or
(C) The consular officer is satisfied the alien is the spouse or
child of a religious worker so classified and is accompanying or
following to join the principal alien.
(ii) Timeliness of application. An immigrant visa issued under INA
203(b)(4) to an alien described in INA 101(a)(27)(C), other than a
minister of religion, who qualifies as a ''religious worker'' as defined
in 8 CFR 204.5(1), shall bear the usual validity except that in no case
shall it be valid later than September 30, 1994.
(2) Certain U.S. Government employees -- (i) General. (A) An alien
is classifiable under INA 203(b)(4) as a special immigrant described in
INA 101(a)(27)(D) if a petition to accord such status has been approved
by the Secretary of State. An alien may file such a petition only
after, but within one year of, notification from the Department that the
Secretary of State has approved a recommendation from the Principal
Officer that special immigrant status be accorded the alien in
exceptional circumstances and has found it in the national interest so
to do.
(B) An alien may qualify as a special immigrant under INA
101(a)(27)(D) on the basis of employment abroad with more than one
agency of the U.S. Government provided the total amount of full-time
service with the U.S. Government is 15 years or more.
(C) Pursuant to INA 203(d), and whether or not named in the petition,
the spouse or child of an alien classified under INA 203(b)(4), if not
entitled to an immigrant status and the immediate issuance of a visa, is
entitled to a derivative status corresponding to the classification and
priority date of the beneficiary of the petition.
(ii) Special Immigrant Status for Certain Aliens Employed at the
United States Mission in Hong Kong. (A) An alien employed at the United
States Consulate General in Hong Kong under the authority of the Chief
of Mission or an alien employed pursuant to section 5913 of title 5 of
the United States Code is eligible for classification under INA
203(b)(4) as a special immigrant described in INA 101(a)(27)(D)
provided:
(1) The alien has performed faithfully for a total of three years or
more;
(2) The alien is a member of the immediate family of an employee
entitled to such special immigrant status; and
(3) The welfare of the alien or the family member is subject to clear
threat due directly to the employee's employment with the United States
Government or under a United States Government official; and
(4) Subsequent to the Secretary's approval of the Principal Officer's
recommendation and finding it in the national interest to do so, but
within one year thereof, the alien has filed a petition for status under
INA 203(b)(4) which the Secretary has approved.
(B) An alien desiring to benefit from this provision must seek such
status not later than January 1, 2002.
(C) For purposes of 42.32(d)(2)(ii)(A), the term ''member of the
immediate family'' means the definition (as of November 29, 1990) in
Volume 6 of the Foreign Affairs Manual, section 117k, of a relative who
has been living with the employee in the same household.
(iii) Priority Date. The priority date of an alien seeking status
under INA 203(b)(4) as a special immigrant described in INA
101(a)(27)(D) shall be the date on which the petition to accord such
classification is filed. The filing date of the petition is that on
which a properly completed form and the required fee are accepted by a
Foreign Service post.
(iv) Petition Validity. Except as noted in this paragraph, the
validity of a petition approved for classification under INA 203(b)(4)
shall be six months beyond the date of the Secretary of State's approval
thereof or the availability of a visa number, whichever is later. In
cases described in 42.32(d)(2)(ii), the validity of the petition shall
not in any case extend beyond January 1, 2002.
(v) Extension of Petition Validity. If the principal officer of a
post concludes that circumstances in a particular case are such that an
extension of the validity of the Secretary's approval of special
immigrant status or of the petition would be in the national interest,
the principal officer shall recommend to the Secretary of State that
such validity be extended for not more than one additional year.
(vi) Fees. The Secretary of State shall establish a fee for the
filing of a petition to accord status under INA 203(b)(4) which shall be
collected following notification that the Secretary has approved status
as a special immigrant under INA 101(a)(27)(D) for the alien.
(vii) Delegation of Authority to Approve Petitions. The authority to
approve petitions to accord status under INA 203(b)(4) to an alien
described in INA 101(a)(27)(D) is hereby delegated to the chief consular
officer at the post of recommendation or, in the absence of the consular
officer, to any alternate approving officer designated by the principal
officer. Such authority may not be exercised until the Foreign Service
post has received formal notification of the Secretary's approval of
special immigrant status for the petitioning alien.
(3) Panama Canal employees. (i) Entitlement to status. An alien who
is subject to the numerical limitations specified in section 3201(c) of
the Panama Canal Act of 1979, Public Law 96-70, is classifiable under
INA 203(b)(4) as a special immigrant described in INA 101(a)(27) (E),
(F) or (G) if the consular officer has received a petition approved by
INS to accord such classification, or official notification of such an
approval, and the consular officer is satisfied that the alien is within
one of the classes described in INA 101(a)(27) (E), (F), or (G).
(ii) Entitlement to derivative status. Pursuant to INA 203(d), and
whether or not named in the petition, the spouse or child of any alien
classified under INA 203(b)(4) as a special immigrant qualified under
this section, if not otherwise entitled to an immigrant status and the
immediate issuance of a visa, is entitled to a derivative status
corresponding to the classification and priority date of the beneficiary
of the petition.
(4) Spouse and children of certain Foreign Medical graduates. The
accompanying spouse and children of a graduate of a foreign medical
school or of a person qualified to practice medicine in a foreign state
who has adjusted status as a special immigrant under the provisions of
INA 101(a)(27)(H) are classifiable under INA 203(b)(4) as special
immigrants defined in INA 101(a)(27)(H) if the consular officer has
received an approved petition from INS which accords such status and the
consular officer is satisfied that the alien is within the class
described in INA 101(a)(27)(H).
(5) Certain International Organization employees. (i) entitlement to
status. An alien is classifiable under INA 203(b)(4) as a special
immigrant described in INA 101(a)(27)(I) if the consular officer has
received a petition approved by the INS to accord such classification or
official notification of such approval, and the consular officer is
satisfied from the evidence presented that the alien is within one of
the classes described in that section.
(ii) Timeliness of application. An alien accorded status under INA
203(b)(4) because of qualification under INA 101(a)(27)(I) must appear
for a final visa interview and issuance of the immigrant visa within six
months of establishing entitlement to status.
(6) Certain juvenile court dependents. An alien shall be
classifiable under INA 203(b)(4) as a special immigrant defined in INA
101(a)(27)(J) if the consular officer has received from INS an approved
petition to accord such status, or an official notification of such an
approval, and the consular officer is satisfied the alien is within the
class described in that section.
(7) Certain members of the United States Armed Forces recruited
abroad -- (i) Entitlement to status. An alien is classifiable under INA
203(b)(4) as a special immigrant described in INA 101(a)(27)(K) if the
consular office has received a petition approved by the INS to accord
such classification, or official notification of such an approval, and
the consular officer is satisfied from the evidence presented that the
alien is within the class described in INA 101(a)(27)(K).
(ii) Entitlement to derivative status. Pursuant to INA 203(d), and
whether or not named in the petition, the spouse or child of any alien
classified under INA 203(b)(4) as a special immigrant qualified under
this section, if not otherwise entitled to an immigrant status and the
immediate issuance of a visa, is entitled to a derivative status
corresponding to the classification and priority date of the beneficiary
of the petition.
(e) Fifth preference -- Employment-creation immigrants.
(1) Entitlement to status. An alien shall be classifiable as a fifth
preference employment-creation immigrant if the consular officer has
received from INS an approved petition to accord such status, or
official notification of such an approval, and the consular officer is
satisfied that the alien is within the class described in INA 203(b)(5).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and
whether or not named in the petition, the spouse or child of an
employment-based fifth preference immigrant, if not otherwise entitled
to an immigrant status and the immediate issuance of a visa, is entitled
to a derivative status corresponding to the classification and priority
date of the beneficiary of the petition.
(56 FR 49676, Oct. 1, 1991, as amended at 56 FR 51172, Oct. 10, 1991;
56 FR 55077, Oct. 24, 1991)
22 CFR 42.33 Diversity immigrants. (Reserved)
22 CFR 42.33 Subpart E-Petitions
22 CFR 42.41 Effect of approved petition.
Consular officers are authorized to grant to an alien the immediate
relative or preference status accorded in a petition approved in the
alien's behalf upon receipt of the approved petition or official
notification of its approval. The status shall be granted for the
period authorized by law or regulation. The approval of a petition does
not relieve the alien of the burden of establishing to the satisfaction
of the consular officer that the alien is eligible in all respects to
receive a visa.
(56 FR 49682, Oct. 1, 1991)
22 CFR 42.42 Petitions for immediate relative or preference status.
Petition for immediate relative or preference status. The consular
officer may not issue a visa to an alien as an immediate relative
entitled to status under 201(b), a family-sponsored immigrant entitled
to preference status under 203(a)(1)-(4), or an employment-based
preference immigrant entitled to status under INA 203(b)(1)-(5), unless
the officer has received a petition filed and approved in accordance
with INA 204 or official notification of such filing and approval.
(56 FR 49682, Oct. 1, 1991)
22 CFR 42.43 Suspension or termination of action in petition cases.
(a) Suspension of action. The consular officer shall suspend action
in a petition case and return the petition, with a report of the facts,
for reconsideration by INS if the petitioner requests suspension of
action, or if the officer knows or has reason to believe that approval
of the petition was obtained by fraud, misrepresentation, or other
unlawful means, or that the beneficiary is not entitled, for some other
reason, to the status approved.
(b) Termination of action. (1) The consular officer shall terminate
action in a petition case upon receipt from INS of notice of revocation
of the petition in accordance with INS regulations.
(2) The consular officer shall terminate action in a petition case
subject to the provisions of INA 203(g) in accordance with the
provisions of 42.83.
(56 FR 49682, Oct. 1, 1991)
22 CFR 42.43 Subpart F -- Numerical Controls and Priority Dates
Source: 56 FR 51174, Oct. 10, 1991, unless otherwise noted.
22 CFR 42.51 Department control of numerical limitations.
(a) Centralized control. (1) Centralized control of the numerical
limitations on immigration specified in INA 201, 202, and 203 is
established in the Department. The Department shall limit the number of
immigrant visas that may be issued and the number of adjustments of
status that may be granted to aliens subject to these numerical
limitations to a number:
(i) Not to exceed 27 percent of the world-wide total made available
under INA 203 (a), (b) and (c) in any of the first three quarters of any
fiscal year; and
(ii) Not to exceed, in any month of a fiscal year, 10% of the
world-wide total made available under INA 203 (a), (b) and (c) plus any
balance remaining from authorizations for preceding months in the same
fiscal year.
(2) The Department shall control the limitation set forth in section
112 of the Immigration Act of 1990, under which not more than 10% of the
total numbers plus any numbers remaining from authorizations for
preceding months shall be allocated in any month of a fiscal year.
(b) Allocation of numbers. Within the foregoing limitations, the
Department shall allocate immigrant visa numbers for use in connection
with the issuance of immigrant visas and adjustments based on the
chronological order of the priority dates of visa applicants reported by
consular officers pursuant to 42.55(b) and of applicants for adjustment
of status as reported by officers of the INS, taking into account the
limitations prescribed in INA 202(e) in the allocation of visa numbers
under INA 212(a)(4)(B) and INA 203(a)(2)(A).
(c) Recaptured visa numbers. An immigrant visa number shall be
returned to the Department for reallocation within the fiscal year in
which the visa was issued when:
(1) An immigrant having an immigrant visa is excluded from the United
States and deported;
(2) An immigrant does not apply for admission to the United States
before the expiration of the validity of the visa;
(3) An alien having a preference immigrant visa is found not to be a
preference immigrant; or
(4) An immigrant visa is revoked pursuant to 42.82.
(d) Aliens subject to Panama Canal Act. Centralized control of the
numerical limitations on immigration specified in section 3201 of the
Panama Canal Act of 1979 is established in the Department. The
Department shall limit the number of visas that may be issued and the
number of adjustments of status that may be granted to immigrants
qualifying for visas under INA 203(b)(4) as aliens described in INA
101(a)(27) (E), (F) and (G) to a number not to exceed a total of 5,000
in any fiscal year beginning on or after October 1, 1979. If an alien
as so described is excluded from the United States and deported or does
not apply for admission to the United States before the expiration of
the validity of the visa, or if a visa issued to such an alien is
revoked pursuant to 42.82, that fact shall be reported to the
Department for recapture of the Panama Canal Act number.
22 CFR 42.52 Post records of visa applications.
(a) Waiting list. Records of individual visa applicants entitled to
an immigrant classification and their priority dates shall be maintained
at posts at which immigrant visas are issued. These records shall
indicate the chronological and preferential order in which consideration
may be given to immigrant visa applications within the several immigrant
classifications subject to the numerical limitations specified in INA
201, 202, and 203 and section 112 of the Immigration Act of 1990.
Similar records shall be kept for the classes specified in INA 201(b)(2)
and 101(a)(27) (A) and (B) which are not subject to numerical
limitations. The records which pertain to applicants subject to
numerical limitations constitute ''waiting lists'' within the meaning of
INA 203(e)(3), as redesignated by the Immigration Act of 1990.
(b) Entitlement to immigrant classification. An alien shall be
entitled to immigrant classification if the alien:
(1) Is the beneficiary of an approved petition according immediate
relative or preference status;
(2) Has satisfied the consular officer that the alien is entitled to
special immigrant status under INA(101)(a)(27) (A) or (B);
(3) Is entitled to status as a Vietnam Amerasian under section
584(b)(1) of section 101(e) of Public Law 100-202 as amended by Public
Law 101-167 and re-amended by Public Law 101-513; or
(4) Beginning in FY-95, is entitled to status as a diversity
immigrant under INA 203(c).
(c) Record made when entitlement to immigrant classification is
established. (1) A record that an alien is entitled to an immigrant
visa classification shall be made on Form OF-224, Immigrant Visa Control
Card, or through the automated system in use at selected posts, whenever
the consular officer is satisfied -- or receives evidence -- that the
alien is within the criteria set forth in paragraph (b) of this section.
(2) A separate record shall be made of family members entitled to
derivative immigrant status whenever the consular officer determines
that a spouse or child is chargeable to a different foreign state or
other numerical limitation than the principal alien. The provisions of
INA 202(b) are to be applied as appropriate when either the spouse or
parent is reached on the waiting list.
(3) A separate record shall be made of a spouse or child entitled to
derivative immigrant status whenever the consular officer determines
that the principal alien intends to precede the family.
22 CFR 42.53 Priority date of individual applicants.
(a) Preference applicant. The priority date of a preference visa
applicant under INA 203 (a) or (b) shall be the fiing date of the
approved petition that accorded preference status.
(b) Former Western Hemisphere applicant with priority date prior to
January 1, 1977. Notwithstanding the provisions of paragraph (a) of
this section, an alien who, prior to January 1, 1977, was subject to the
numerical limitation specified in section 21(e) of the Act of October 3,
1965, and who was registered as a Western Hemisphere immigrant with a
priority date prior to January 1, 1977, shall retain that priority date
as a preference immigrant upon approval of a petition according status
under INA 203 (a) or (b).
(c) Derivative priority date for spouse or child of principal alien.
A spouse or child of a principal alien acquired prior to the principal
alien's admission shall be entitled to the priority date of the
principal alien, whether or not named in the immigrant visa application
of the principal alien. A child born of a marriage which existed at the
time of a principal alien's admission to the United States is considered
to have been acquired prior to the principal alien's admission.
22 CFR 42.54 Order of consideration.
(a) General. Consular officers shall request applicants to take the
steps necessary to meet the requirements of INA 222(b) in order to apply
formally for a visa as follows:
(1) In the chronological order of the priority dates of all
applicants within each of the immigrant classifications specified in INA
203 (a) and (b); and
(2) Beginning with fiscal year 1995, in the random order established
by the Secretary of State for the fiscal year for all applicants
entitled to status under INA 203(c).
(b) Beneficiaries of section 155 of Public Law 101-649.
Notwithstanding paragraph (a) of this section, for fiscal years 1991 and
1992:
(1) The Department shall notify consular officers of the latest
priority date, based on a reasonable estimate, for which visa numbers
will probably be available worldwide under INA 203(a) (2) and (5) (in
FY-91) and INA 203(a) (2) and (4) (in FY-92);
(2) Immediately after receipt of the Department's projected fiscal
year ultimate priority date, if they have not previously done so,
consular officers shall ensure that all natives of Lebanon who are
beneficiaries of petitions conferring such status, approved no later
than November 29, 1990, are notified promptly of the requirements the
applicants must meet under INA 222(b) to apply formally for a visa.
Such notifications sent to applicants not physically present in Lebanon
may require, if necessary, additional information to enable the consular
officer to determine whether or not the applicant is firmly resettled
(as defined in 8 CFR 207.1(b)) in a country other than Lebanon;
(3) Upon a determination that the applicant is not firmly resettled
in a country outside Lebanon, and that the applicant is documentarily
qualified as provided in 42.55(b), the consular officer shall so report
any such preference Lebanese applicant and the Department shall promptly
allocate a visa number for the use of such applicant.
22 CFR 42.55 Reports on numbers and priority dates of applications on
record.
(a) Report of immigrant visa applicants subject to numerical
limitations. Consular officers shall report periodically, as the
Department may direct, the number and priority dates of all applicants
subject to the numerical limitations prescribed in INA 201, 202 and 203
and in section 112 of the Immigration Act of 1990 whose immigrant visa
applications have been recorded in accordance with 42.52(c).
(b) Documentarily qualified applicants. Consular officers shall also
report periodically, as the Department may direct, the number and
priority dates of all applicants described in paragraph (a) of this
section who have informed the consular office that they have obtained
the documents required under INA 222(b), for whom the necessary
clearance procedures have been completed.
22 CFR 42.55 Subpart G -- Application for Immigrant Visas
22 CFR 42.61 Place of application.
(a) Alien to apply in consular district of residence. Under ordinary
circumstances, an alien seeking an immigrant visa shall have the case
processed in the consular district in which the alien resides. The
consular officer shall accept the case of an alien having no residence
in the consular district, however, if the alien is physically present
and expects to remain therein for the period required for processing the
case. An immigrant visa case may, in the discretion of the consular
officer, or shall, at the direction of the Department, be accepted from
an alien who is neither a resident of, nor physically present in, the
consular district. An alien residing temporarily in the United States
is considered to be a resident of the consular district of last
residence abroad.
(b) Transfer of immigrant visa cases. (1) All documents, papers, and
other evidence relating to an applicant whose case is pending or has
been refused at one post may be transferred to another post at the
applicant's request and risk when there is reasonable justification for
the transfer and the transferring post has no reason to believe that the
alien will be unable to appear at the receiving post.
(2) Any approved petition granting immediate relative or preference
status should be included among the documents when a case is transferred
from one post to another.
(3) In no case may a visa number be transferred from one post to
another. A visa number which cannot be used as a result of the transfer
must be returned to the Department immediately.
22 CFR 42.62 Personal appearance and interview of applicant.
(a) Personal appearance of applicant before consular officer. Every
alien applying for an immigrant visa, including an alien whose
application is executed by another person pursuant to 42.63(a)(2),
shall be required to appear personally before a consular officer for the
execution of the application or, if in Taiwan, before a designated
officer of the American Institute in Taiwan, except that the personal
appearance of any child under the age of 14 may be waived at the
officer's discretion.
(b) Interview by consular officer. Every alien executing an
immigrant visa application must be interviewed by a consular officer who
shall determine on the basis of the applicant's representations and the
visa application and other relevant ducumentation --
(1) The proper immigrant classification, if any, of the visa
applicant, and
(2) The applicant's eligibility to receive a visa.
The officer has the authority to require that the alien answer any
question deemed material to these determinations.
(52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991)
22 CFR 42.63 Application forms and other documentation.
(a) Application Forms. -- (1) Application on Form OF-230 Required.
Every alien applying for an immigrant visa must make application on Form
OF-230, Application for Immigrant Visa and Alien Registration. This
requirement may not be waived. Form OF-230 consists of parts I and II
which, together, are meant in any reference to this Form.
(2) Application of alien under 14 or physically incapable. The
application on Form OF-230 for an alien under 14 years of age or one
physically incapable of completing an application may be excuted by the
alien's parent or guardian, or, if the alien has no parent or guardian,
by any person having legal custory of, or a legitimate interest in, the
alien.
(b) Preparation of forms. The consular officer shall ensure that
Form OF-230 and all other forms an alien is required to submit are fully
and properly completed in accordance with the applicable regulations and
instructions.
(c) Additional information as part of application. The officer may
require the submission of additional information or question the alien
on any relevant matter whenever the officer believes that the
information provided in Form OF-230 is inadequate to determine the
alien's eligibility to receive an immigrant visa. Additional statements
made by the alien become a part of the visa application. All documents
required under the authority of 42.62 are considered papers submitted
with the alien's application within the meaning of INA 221(g)(1).
(52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991)
22 CFR 42.64 Passport requirements.
(a) Passport defined. ''Passport,'' as defined in INA 101(a)(30), is
not limited to a national passport or to a single document. A passport
may consist of two or more documents which, when considered together,
fulfill the requirements of a passport, provided that documentary
evidence of permission to enter a foreign country has been issued by a
competent authority and clearly meets the requirements of INA
101(a)(30).
(b) Passport validity requirements. Except as provided in 42.2,
every applicant for an immigrant visa shall present a passport, as
defined in INA 101(a)(30), that is valid for at least 60 days beyond the
period of validity of the visa. The 60-day additional validity
requirement does not apply to an applicant who would be excepted as
provided in 42.2 were it not for the fact that the applicant is
applying in the country of which the applicant is a national and the
possession of a passport is required for departure. Such an applicant
may be issued a visa valid for 4 months or for such shorter period as
will assure its expiration in unison with the passport.
(c) A single passport including more than one person. The passport
requirement of this section may be met by the presentation of a passport
including more than one person, if such inclusion is authorized under
the laws or regulations of the issuing authority and if a photograph of
each person 16 years of age or over is attached to the passport by the
issuing authority.
(52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988)
22 CFR 42.65 Supporting documents.
(a) Authority to require documents. The consular officer is
authorized to require documents considered necessary to establish the
alien's eligibility to receive an immigrant visa. All such documents
submitted and other evidence presented by the alien, including briefs
submitted by attorneys or other representatives, shall be considered by
the officer.
(b) Basic documents required. An alien applying for an immigrant
visa shall be required to furnish, if obtainable: A copy of a police
certificate or certificates; a certified copy of any existing prison
record, military record, and record of birth; and a certified copy of
all other records or documents which the consular officer considers
necessary.
(c) Definitions. (1) Police certificate means a certification by the
police or other appropriate authorities reporting information entered in
their records relating to the alien. In the case of the country of an
alien's nationality and the country of an alien's current residence (as
of the time of visa application) the term ''appropriate police
authorities'' means those of a country, area or locality in which the
alien has resided for at least six months. In the case of all other
countries, areas, or localities, the term ''appropriate police
authorities'' means the authorities of any country, area, or locality in
which the alien has resided for at least one year. A consular officer
may require a police certificate regardless of length of residence in
any country if he or she has reason to believe that a police record
exists in the country, area, or locality concerned.
(2) Prison record means an official document containing a report of
the applicant's record of confinement and conduct in a penal or
correctional institution.
(3) Military record means an official document containing a complete
record of the applicant's service and conduct while in military service,
including any convictions of crime before military tribunals as
distinguished from other criminal courts. A certificate of discharge
from the military forces or an enrollment book belonging to the
applicant shall not be acceptable in lieu of the official military
record, unless it shows the alien's complete record while in military
service. The applicant may, however, be required to present for
inspection such a discharge certificate or enrollment book if deemed
necessary by the consular officer to establish the applicant's
eligibility to receive a visa.
(4) A certified copy of an alien's record of birth means a
certificate issued by the official custodian of birth records in the
country of birth showing the date and place of birth and the parentage
of the alien, based upon the original registration of birth.
(5) Other records or documents include any records or documents
establishing the applicant's relationship to a spouse or children, if
any, and any records or documents pertinent to a determination of the
applicant's identity, classification, or any other matter relating to
the applicant's visa eligibility.
(d) Unobtainable documents. (1) If the consular officer is
satisfied, or the catalogue of available documents prepared by the
Department indicates, that any document or record required under this
section is unobtainable, the officer may permit the immigrant to submit
other satisfactory evidence in lieu of such document or record. A
document or other record shall be considered unobtainable if it cannot
be procured without causing to the applicant or a family member actual
hardship as opposed to normal delay and inconvenience.
(2) If the consular officer determines that a supporting document, as
described in paragraph (b) of this section, is in fact unobtainable,
although the catalogue of available documents shows it is available, the
officer shall affix to the visa application a signed statement
describing in detail the reasons for considering the record or document
unobtainable and for accepting the particular secondary evidence
attached to the visa.
(e) Authenticity of records and documents. If the consular officer
has reason to believe that a required record or document submitted by an
applicant is not authentic or has been altered or tampered with in any
material manner, the officer shall take such action as may be necessary
to determine its authenticity or to ascertain the facts to which the
record or document purports to relate.
(f) Photographs. Every alien shall furnish color photographs of the
number and specifications prescribed by the Department, except that, in
countries where facilities for producing color photographs are
unavailable as determined by the consular officer, black and white
photographs may be substituted.
(52 FR 42613, Nov. 5, 1987, as amended at 55 FR 29015, July 17, 1990;
56 FR 49682, Oct. 1, 1991)
22 CFR 42.66 Medical examination.
(a) Medical examination required of all applicants. Before the
issuance of an immigrant visa, the consular officer shall require every
alien, regardless of age, to undergo a medical examination in order to
determine eligibility to receive a visa.
(b) Examination by physician from approved panel. The required
examination shall be conducted in accordance with requirements and
procedures established by the United States Public Health Service and by
a physician selected by the alien from a panel of physicians approved by
the consular officer.
(c) Facilities required for panel physician. A consular officer
shall not include the name of a physician on the panel of physicians
referred to in paragraph (b) of this section unless the physician has
facilities to perform required serological and X-ray tests or is in a
position to refer applicants to a qualified laboratory for such tests.
22 CFR 42.67 Execution of application, registration, and
fingerprinting.
(a) Execution of visa application -- (1) Application fee. A fee is
prescribed for each application for an immigrant visa. It shall be
collected prior to the execution of the application and a receipt shall
be issued.
(2) Oath and signature. The applicant shall be required to read the
Form OF-230, Application for Immigrant Visa and Alien Registration, when
it is completed, or it shall be read to the alien in the alien's
language, or the alien otherwise informed of its full contents. Aliens
shall be asked whether they are willing to subscribe thereto. If the
alien is not willing to subscribe to the application unless changes are
made in the information stated therein, the required changes shall be
made. The application shall then be sworn to or affirmed and signed by
or on behalf of the applicant before a consular officer, or a designated
officer of the American Institute of Taiwan, who shall then sign the
application over the officer's title.
(b) Registration. Form OF-230, when duly executed, shall constitute
the alien's registration record for the purposes of INA 221(b).
(c) Fingerprinting. An alien may be required at any time prior to
the execution of Form OF-230 to have a set of fingerprints taken if such
procedure is necessary for purposes of identification or investigation.
(52 FR 42613, Nov. 5, 1987, as amended at 55 FR 29015, July 17, 1990;
56 FR 49682, Oct. 1, 1991)
22 CFR 42.68 Informal evaluation of family members if principal
applicant precedes them.
(a) Preliminary determination of visa eligibility. If a principal
applicant proposes to precede the family to the United States, the
consular officer may arrange for an informal examination of the other
members of the principal applicant's family in order to determine
whether there exists at that time any mental, physical, or other ground
of ineligibility on their part to receive a visa.
(b) When family member ineligible. In the event the consular officer
finds that any member of such family would be ineligible to receive an
immigrant visa, the principal applicant shall be informed and required
to acknowledge receipt of this information in writing.
(c) No guarantee of future eligibility. A determination in
connection with an informal examination that an alien appears to be
eligible for a visa carries no assurance that the alien will be issued
an immigrant visa in the future. The principal applicant shall be so
informed and required to acknowledge receipt of this information in
writing. The question of visa eligibility can be determined
definitively only at the time the family member applies for a visa.
22 CFR 42.68 Subpart H -- Issuance of Immigrant Visas
22 CFR 42.71 Authority to issue visas; visa fees.
(a) Authority to issue visas. Consular officers are authorized to
issue immigrant visas at designated consular offices abroad pursuant to
INA 101(a)(16), 221(a), and 224. (Consular offices authorized to issue
immigrant visas are listed periodically in Visa Office Bulletins
published by the Department of State.) A consular officer assigned to
duty in the territory of a country against which the sanctions provided
in INA 243(g) have been invoked shall not issue an immigrant visa to an
alien who is a national, citizen, subject, or resident of that country,
unless the officer has been informed that the sanction has been waived
by INS in the case of an individual alien or a specified class of
aliens.
(b) Immigrant visa fees. Fees are prescribed by the Secretary of
State for the execution of an application for, and the issuance of, an
immigrant visa. The application fee shall be collected prior to the
visa interview and execution of the application. The issuance fee shall
be collected after completion of the visa interview and prior to
issuance of the visa. A fee receipt shall be issued for each fee. A
fee collected for the application for or issuance of an immigrant visa
is refundable only if the principal officer at a post or the officer in
charge of a consular section determines that the visa was issued in
error or could not be used as a result of action by the U.S. Government
over which the alien had no control and for which the alien was not
responsible.
22 CFR 42.72 Validity of visas.
(a) Period of validity. With the exception indicated herein, the
period of validity of an immigrant visa shall not exceed 4 months,
beginning with the date of issuance. Any visa issued to a child
lawfully adopted by a U.S. citizen and spouse while such citizen is
serving abroad in the U.S. Armed Forces, is employed abroad by the U.S.
Government, or is temporarily abroad on business, however, shall be
valid until such time, for a period not to exceed 3 years, as the
adoptive citizen parent returns to the United States in the course of
that parent's military service, U.S. Government employment, or business.
(b) Extension of period of validity. If the visa was originally
issued for a period of validity less than the maximum authorized by
paragraph (a) of this section, the consular officer may extend the
validity of the visa up to but not exceeding the maximum period
permitted. If an immigrant applies for an extension at a consular
office other than the issuing office, the consular officer shall, unless
the officer is satisfied beyond doubt that the alien is eligible for the
extension, communicate with the issuing office to determine if there is
any objection to an extension. In extending the period of validity, the
officer shall make an appropriate notation on the visa of the new
expiration date, sign the document with title indicated, and impress the
seal of the office thereon.
(c) No fee for extension of period of validity. No fee shall be
charged for extending the period of validity of an immigrant visa.
(d) Age and marital status in relation to validity of certain
immigrant visas. In accordance with 42.64(b), the validity of a visa
may not extend beyond a date sixty days prior to the expiration of the
passport. The period of validity of a visa issued to an immigrant as a
child shall not extend beyond the day immediately proceding the date on
which the alien becomes 21 years of age. The consular officer shall
warn an alien, when appropriate, that the alien will be admissible as
such an immigrant only if unmarried and under 21 years of age at the
time of application for admission at a U.S. port of entry. The consular
officer shall also warn an alien issued a visa as a first or second
preference immigrant as an unmarried son or daughter of a citizen or
lawful permanent resident of the United States that the alien will be
admissible as such an immigrant only if unmarried at the time of
application for admission at a U.S. port of entry.
(e) Aliens entitled to the benefits of sections 154 (a) and (b) of
(Pub. L. 101-649.)
(1) Notwithstanding the provisions of paragraphs (a) through (d) of
this section, the period of validity of an immigrant visa issued to an
immigrant described in paragraph (e)(2) of this section may, at the
request of the applicant, be extended until January 1, 2002, if the
applicant so requests either at the time of issuance of the visa or
within four months thereafter. If an applicant entitled to issuance of
an immigrant visa having an extended period of validity fails to request
extended validity at the time of issuance but subsequently, within four
months thereafter, requests that the validity be extended pursuant to
this paragraph, the consular officer shall issue a replacement visa to
the alien in accordance with the provisions of 42.74(b).
(2) An immigrant may request the extended period of validity provided
for in paragraph (e)(1) of this section if he or she is
(i) Resident in Hong Kong as of the date of enactment of Public Law
101-649;
(ii) Chargeable to the foreign state limitation for Hong Kong; and
(iii) Classifiable, during fiscal year 1991, as a preference
immigrant under section 203(a) (1), (2), (4), or (5) of the INA or,
during fiscal year 1992 and thereafter, as a preference immigrant under
section 203(a) (1), (2), (3), or (4), or 203(b)(1) of the INA.
(3) An alien who elects to have the period of validity of his or her
immigrant visa extended as provided in paragraph (e)(1) of this section
and whose entitlement to the immigrant classification of such visa was
based upon his or her status as a child at the time of issuance shall
not cease to be entitled to such visa by reason of attaining age
twenty-one or marrying prior to his or her application for admission
into the United States.
(4) An alien who has elected to have the period of validity of his or
her visa extended pursuant to paragraph (e)(1) of this section shall, if
his or her contemplated date of application for admission into the
United States is later than four months following the date of visa
issuance, notify the appropriate consular officer of his or her
intention to travel to the United States for this purpose. The consular
officer shall thereupon schedule an appointment with such alien for the
purpose of determining whether or not the alien remains admissible into
the United States as an immigrant. Such appointment shall be scheduled
not sooner than four months preceding the alien's contemplated date of
application for admission for permanent residence. If the consular
officer determines that the alien continues to be admissible to the
United States as an immigrant, he or she shall issue to the alien a
duplicate immigrant visa as provided in 42.74 of this part except that
the alien shall pay only a new issuance fee. If the consular officer
determines that the alien has become inadmissible to the United States
as an immigrant, he or she shall revoke the visa as provided in 42.82
of this part. A consular officer who issues a visa having an extended
period of validity pursuant to this paragraph shall, at the time of visa
issuance, inscribe on the face of the visa ''Section 154 applies'' and
shall notify in writing the alien concerned of this requirement.
(52 FR 42613, Nov. 5, 1987, as amended at 56 FR 32323, July 16, 1991)
22 CFR 42.73 Procedure in issuing visas.
(a) Insertion of data. In issuing an immigrant visa, the issuing
office shall insert the pertinent information in the designated blank
spaces provided on Form OF-155A, Immigrant Visa and Alien Registration,
in accordance with the instructions contained in this section.
(1) A symbol as specified in 42.11 shall be used to indicate the
classification of the immigrant.
(2) An immigrant visa issued to an alien subject to numerical
limitations shall bear a number allocated by the Department. The
foreign state or dependent area limitation to which the alien is
chargeable shall be entered in the space provided.
(3) No entry need be made in the space provided for foreign state or
other applicable area limitation on visas issued to aliens in the
classifications set forth in 42.12(a)(1)-(7), but such visas may be
numbered if a post voluntarily uses a consecutive post numbering system.
(4) The date of issuance and the date of expiration of the visa shall
be inserted in the proper places on the visa and show the day, month,
and year in that order, with the name of the month spelled out, as in
''24 December 1986.''
(5) In the event the passport requirement has been waived under
42.2, a notation shall be inserted in the space provided for the
passport number, setting forth the authority (section and paragraph)
under which the passport was waived.
(6) A signed photograph shall be attached in the space provided on
Form OF-155A by the use of a legend machine, unless specific
authorization has been granted by the Department to use the impression
seal.
(b) Documents comprising an immigrant visa. An immigrant visa
consists of Form OF-155A and Form OF-230, Application for Immigrant Visa
and Alien Registration, properly executed, and a copy of each document
required pursuant to 42.63.
(c) Arrangement of visa documentation. Form OF-155A shall be placed
immediately above Form OF-230 and the supporting documents attached
thereto. Any document required to be attached to the visa, if furnished
to the consular officer by the alien's sponsor or other person with a
request that the contents not be divulged to the visa applicant, shall
be placed in an envelope and sealed with the impression seal of the
consular office before being attached to the visa. If an immigrant visa
is issued to an alien in possession of a United States reentry permit,
valid or expired, the consular officer shall attach the permit to the
immigrant visa for disposition by INS at the port of entry. (Documents
having no bearing on the alien's qualifications or eligiblity to receive
a visa may be returned to the alien or to the person who furnished
them.)
(d) Signature, seal, and issuance of visa. The consular officer
shall sign the visa (Form OF-155A) and impress the seal of the office on
it so as to partially cover the photograph and the signature. The
immigrant visa shall then be issued by delivery to the immigrant or the
immigrant's authorized agent or representative.
(52 FR 42613, Nov. 5, 1991, as amended at 56 FR 49682, Oct. 1, 1991)
22 CFR 42.74 Issuance of new or replacement visas.
(a) New immigrant visa for an alien not subject to numerical
limitation. An immediate relative under INA 201(b), or a special
immigrant under INA 101(a)(27) (A) or (B), who establishes that a visa
has been lost or mutilated or has expired, or that the alien will be
unable to use it during the period of its validity, may be issued a new
visa at the same or any other consular office, if the consular officer
then finds the alien qualified. The alien must pay anew the statutory
application and issuance fees. Prior to issuing a new immigrant visa at
a consular office other than the one that issued the original visa, the
consular officer must also ascertain whether the original issuing office
knows of any reason why a new visa should not be issued.
(b) Replacement immigrant visa for an alien subject to numerical
limitation. An immigrant documented under INA 203 (a), (b), or (c), or
under sections 112, 124, or 132 of the Immigration Act of 1990, who was
or will be unable to use the visa during the period of its validity
because of reasons beyond the alien's control and for which the alien is
not responsible may be issued a replacement immigrant visa under the
original number during the same fiscal year in which the original visa
was issued (provided the number has not been returned to the
Department), if the consular officer then finds the alien qualified.
The alien must pay anew the statutory application and issuance fees.
Prior to issuing a replacement immigrant visa at a consular office other
than the one that issued the original visa, the consular officer must
also ascertain whether the original issuing office knows of any reason
why a replacement visa should not be issued. In issuing a visa under
this paragraph, the consular officer shall insert the word ''REPLACE''
on Form OF-155A, Immigrant Visa and Alien Registration, before the word
''IMMIGRANT'' in the title of the visa.
(c) Duplicate visas issued within the validity period of the original
visa. If the validity of a visa previously issued has not yet
terminated and the original visa has been lost or mutilated, a duplicate
visa may be issued containing all of the information appearing on the
original visa, including the original issuance and expiration dates.
The applicant shall execute a new application and provide copies of the
supporting documents submitted in support of the original application.
The alien must pay anew the application and issuance fees. In issuing a
visa under this paragraph, the consular officer shall insert the word
''DUPLICATE'' on Form OF-155A before the word ''IMMIGRANT'' in the title
of the visa.
(52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991)
22 CFR 42.74 Subpart I -- Refusal, Revocation, and Termination of Registration
22 CFR 42.81 Procedure in refusing individual visas.
(a) Issuance or refusal mandatory. When a visa application has been
properly completed and executed before a consular officer in accordance
with the provisions of INA and the implementing regulations, the
consular officer shall either issue or refuse the visa. Every refusal
shall be in conformance with the provisions of 22 CFR 40.6.
(b) Refusal procedure. A consular officer may not refuse an
immigrant visa until Form OF-230, Application for Immigrant Visa and
Alien Registration, has been executed by the applicant. When an
immigrant visa is refused, an appropriate record shall be made in
duplicate on a form prescribed by the Department. The form shall be
signed and dated by the consular officer. The consular officer shall
inform the applicant of the provision of law or implementing regulation
on which the refusal is based and of any statutory provisions under
which administrative relief is available. Each document related to the
refusal shall then be attached to Form OF-230 for retention in the
refusal files. Any documents not related to the refusal shall be
returned to the applicant. If the grounds of ineligibility may be
overcome by the presentation of additional evidence and the applicant
indicates an intention to submit such evidence, all documents may, with
the consent of the alien, be retained in the consular files for a period
not to exceed one year. If the refusal has not been overcome within one
year, any documents not relating to the refusal shall be removed from
the file and returned to the alien.
(c) Review of refusal at consular office. If the grounds of
ineligibility upon which the visa was refused cannot be overcome by the
presentation of additional evidence, the principal consular officer at a
post, or a specifically designated alternate, shall review the case
without delay, record the review decision, and sign and date the
prescribed form. If the grounds of ineligibility may be overcome by the
presentation of additional evidence and the applicant indicates the
intention to submit such evidence, a review of the refusal may be
deferred. If the principal consular officer or alternate does not
concur in the refusal, that officer shall either (1) refer the case to
the Department for an advisory opinion, or (2) assume responsibility for
final action on the case.
(d) Review of refusal by Department. The Department may request a
consular officer in an individual case or in specified classes of cases
to submit a report if an immigrant visa has been refused. The
Department will review each report and may furnish an advisory opinion
to the consular officer for assistance in considering the case further.
If the officer believes that action contrary to an advisory opinion
should be taken, the case shall be resubmitted to the Department with an
explanation of the proposed action. Rulings of the Department
concerning an interpretation of law, as distinguished from an
application of the law to the facts, are binding upon consular officers.
(e) Reconsideration of refusal. If a visa is refused, and the
applicant within one year from the date of refusal adduces further
evidence tending to overcome the ground of ineligibility on which the
refusal was based, the case shall be reconsidered. In such
circumstance, an additional application fee shall not be required.
(52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988)
22 CFR 42.82 Revocation of visas.
(a) Grounds for revocation. Consular officers are authorized to
revoke an immigrant visa under the following circumstances:
(1) The consular officer knows, or after investigation is satisfied,
that the visa was procured by fraud, a willfully false or misleading
representation, the willful concealment of a material fact, or other
unlawful means;
(2) The consular officer obtains information establishing that the
alien was otherwise ineligible to receive the particular visa at the
time it was issued; or
(3) The consular officer obtains information establishing that,
subsequent to the issuance of the visa, a ground of ineligibility has
arisen in the alien's case.
(b) Notice of proposed revocation. The bearer of an immigrant visa
which is being considered for revocation shall, if practicable, be
notified of the proposed action, given an opportunity to show cause why
the visa should not be revoked, and requested to present the visa to the
consular office indicated in the notification of proposed cancellation.
(c) Procedure in revoking visas. An immigrant visa which is revoked
shall be canceled by writing the word ''REVOKED'' plainly across the
face of the visa. The cancellation shall be dated and signed by the
consular officer taking the action. The failure of an alien to present
the visa for cancellation does not affect the validity of any action
taken to revoke it.
(d) Notice to carriers. Notice of revocation of a visa shall be
given to the master, commanding officer, agent, owner, charterer, or
consignee of the carrier or transportation line on which it is believed
the alien intends to travel to the United States, unless the visa has
been canceled as provided in paragraph (c) of this section.
(e) Notice to Department. The consular officer shall promptly submit
notice of the revocation, including a full report of the facts in the
case, to the Department for transmission to the INS. A report is not
required if the visa has been physically canceled prior to the alien's
departure for the United States.
(f) Record of action. Upon the revocation of an immigrant visa, the
consular officer shall make appropriate notation for the post file of
the action taken, including a statement of the reasons therefor, and if
the revocation of the visa is effected at other than the issuing office,
a report of the action taken shall be sent to that office.
(g) Reconsideration of revocation. (1) The consular officer shall
consider any evidence submitted by the alien or the alien's attorney or
representative in connection with a request that the revocation of the
visa be reconsidered. If the officer finds that the evidence is
sufficient to overcome the basis for the revocation, a new visa shall be
issued. A memorandum regarding the action taken and the reasons
therefore shall be placed in the consular files and appropriate
notification made promptly to the carriers concerned, the Department,
and the issuing office if notice of revocation has been given in
accordance with paragraphs (d), (e), and (f) of this section.
(2) In view of the provisions of 42.71(b) providing for the refund
of fees when the visa has not been used as a result of action by the
U.S. Government, no fees shall be collected in connection with the
application for or issuance of such a reinstated visa.
22 CFR 42.83 Termination of registration.
(a) Termination following failure of applicant to apply for visa. In
accordance with INA 203(g), an alien's registration for an immigrant
visa shall be terminated if, within one year after transmission of a
notification of the availability of an immigrant visa, the applicant
fails to apply for an immigrant visa.
(b) Termination following visa refusal. An alien's registration for
an immigrant visa shall be terminated if, within one year following the
refusal of the immigrant visa application under INA 221(g), the alien
has failed to present to a consular officer evidence purporting to
overcome the basis for refusal.
(c) Notice of termination. Upon the termination of registration
under paragraph (a) or (b) of this section, the consular officer at the
post where the alien is registered shall notify the alien of the
termination. The consular officer shall also inform the alien of the
right to have the registration reinstated if the alien, before the end
of the second year after the missed appointment date if paragraph (a)
applies, and before the end of the second year after the INA 221(g)
refusal if paragraph (b) applies, establishes to the satisfaction of the
consular officer that the failure to apply for an immigrant visa or to
present evidence purporting to overcome the ineligibility under INA
221(g) was due to circumstances beyond the alien's control.
(d) Reinstatement of registration. If the consular officer is
satisfied that an alien, as provided for in paragraph (c) of this
section, has established that failure to apply as scheduled for an
immigrant visa or to present evidence purporting to overcome
ineligibility under INA 221(g) was due to circumstances beyond the
alien's control, the consular officer shall reinstate the alien's
registration for an immigrant visa. Any petition approved under INA
204(b) which had been automatically revoked as a result of the
termination of registration shall be considered to be automatically
reinstated if the registration is reinstated.
(e) Interpretation of ''circumstances beyond alien's control''. For
the purpose of this section, the term ''circumstances beyond the alien's
control'' includes, but is not limited to, an illness or other physical
disability preventing the alien from traveling, a refusal by the
authorities of the country of an alien's residence to grant the alien
permission to depart as an immigrant, and foreign military service.
(52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991)
22 CFR 42.83 PART 43 -- VISAS: DOCUMENTATION OF IMMIGRANTS
Sec.
22 CFR 42.83 Subpart A -- Documentation of Immigrants Under Section 314
of Pub. L. 99-603
43.1 General.
43.2 Definition.
43.3 Registration of applicants and priority date.
43.4 Control of numerical limitation.
43.5 Eligibility to receive a visa.
43.6 Processing and adjudication during Fiscal Year 1991.
22 CFR 42.83 Subpart B -- Documentation of Immigrants Under Section 132
of Public Law 101-649
43.11 General.
43.12 Definitions.
43.13 Registration.
43.14 Order of consideration.
43.15 Control of numerical limitation.
43.16 Fees.
43.17 Eligibility to receive a visa.
Authority: Sec. 104, 66 Stat. 174, 8 U.S.C. 1104; Sec. 109(b)(1),
91 Stat. 847; Sec. 314, 100 Stat. 3359, 8 U.S.C. 1153 Note; Sec. 2,
102 Stat. 3359, unless otherwise noted.
Source: 52 FR 1450, Jan. 14, 1987, unless otherwise noted.
22 CFR 42.83 Subpart A -- Documentation of Immigrants Under Section 314 of Pub. L. 99-603
22 CFR 43.1 General.
Except as specifically provided in this part, the provisions of the
Immigration and Nationality Act, as amended, and of part 42 of this
chapter shall apply to application for, consideration of, and issuance
or refusal of, immigrant visas under section 314 of Pub. L. 99-603.
22 CFR 43.2 Definition.
The following definition shall be applicable to this part: Adversely
affected country means a foreign state whose average annual rate of
immigration to the United States during the period from July 1, 1966, to
September 30, 1985, was less than its average annual rate of immigration
to the United States during the period from July 1, 1953, to June 30,
1965. A foreign state's average annual rate of immigration to the
United States during the periods described in the preceding sentence
shall be determined by totaling the number of natives of the foreign
state who were admitted to the United States for permanent residence, as
reported in the Annual Reports of the Immigration and Naturalization
Service, for each such period and dividing each total by the number of
fiscal years in the period. For the purposes of this definition a
colony or component or dependent area of a foreign state overseas from
such foreign state shall be treated as a separate foreign state.
22 CFR 43.3 Registration of applicants and priority date.
(a) Limitations on registration. An alien shall not be eligible to
register under this section unless he is a native of an adversely
affected country as defined in 43.2 of this part. Applications for
registration will be accepted only from 12:01 a.m. January 21, 1987,
until Midnight January 27, 1987. Applications received before January
21 or after January 27 will not be considered. If the Department
thereafter determines that it is necessary to establish a further period
for registration in order to ensure that the number of qualified
applicants is sufficient to permit allocation of all immigrant visa
numbers authorized by section 314 of Pub. L. 99-603, the Department
will so provide by Public Notice in the Federal Register.
(b) Place of registration. Every alien who is a native of an
adversely affected country who desires to register as an applicant for a
visa under section 314 of Pub. L. 99-603 shall apply for registration
by mail to: NP-5, P.O. Box 96097, Washington, DC 20090-6097, U.S.A.
Hand-delivered applications, telegrams, envelopes sent by registered
mail, Federal Express, USPS Certified Mail or other courier services
will not be accepted. Only one application may be submitted in each
envelope and, in the event an envelope contains two or more
applications, only the first application removed from that envelope will
be accepted and processed.
(c) Application for registration. An applicant for registration
under this section shall apply for registration by submitting the
following information.
(1) Name;
(2) Date of birth;
(3) Place of birth (including city and county, province or other
political subdivision, and country);
(4) Name(s), date(s) and place(s)( of birth of spouse and child(ren),
if any;
(5) Mailing address; and
(6) Location of consular office nearest to current residence or, if
in the United States, nearest to last foreign residence prior to entry
into the U.S.
(d) Derivative registration. An application for registration
submitted in accordance with paragraphs (a) and (b) of this section
shall be considered to include automatically the spouse or child of the
applicant, whether or not such spouse or child is named in the
application if, in case of a spouse, the marriage to the applicant took
place prior to the applicant's admission to the United States for
permanent residence or, in the case of a child, the child is the issue
of a marriage which took place prior to the applicant's admission to the
United States for permanent residence.
(e) Priority date. An alien's priority date for consideration of his
application under this part shall be the date, hour and minute (within
the registration period or periods provided for in paragraph (a) of this
section) of the receipt and processing of the application by the Visa
Office of the Department of State.
(52 FR 1450, Jan. 14, 1987, as amended at 52 FR 17949, May 13, 1987)
22 CFR 43.4 Control of numerical limitation.
(a) Centralized control. Centralized control of the numerical
limitation specified in section 314(a) of Pub. L. 99-603, as amended,
is established in the Department. In order to effect this control the
Department shall limit the number of immigrant visas and the number of
adjustments of status that may be granted to aliens applying under
section 314 of Pub. L. 99-603, as amended, to (1) a number not to
exceed 5,000 each in fiscal years 1987 and 1988 and not to exceed, in
any month of either such fiscal year, 500 plus any balance remaining
from authorizations for preceding months in the same fiscal year; and
(2) a number not to exceed 15,000 each in fiscal years 1989 and 1990 and
not to exceed, in any month of either such fiscal year, 1,500 plus any
balance remaining from authorizations for preceding months in the same
fiscal year.
(b) Limitation for individual adversely affected country. Within the
limitations specified in subsection (a) of this section, there shall be
a numerical limitation on the issuance of immigrant visas and the
granting of adjustment of status to natives of any individual adversely
affected country. For fiscal years 1987 and 1988 the numerical
limitation for any individual adversely affected country shall be the
difference between its average annual rate of immigration during the
period from July 1, 1953, to June 30, 1965, and its average annual rate
of immigration during the period from July 1, 1966, to September 30,
1985, or 5,000, whichever is the lesser. For fiscal years 1989 and 1990
the numerical limitation for any individual adversely affected country
shall be three times the difference between its average annual rate of
immigration during the period from July 1, 1953, to June 30, 1965, and
its average annual rate of immigration during the period from July 1,
1966, to September 30, 1985, or 15,000, whichever is the lesser.
(c) Allocation of immigrant visa numbers. Within the numerical
limitations specified in paragraphs (a) and (b) of this section and
based on the chronological order of priority dates of applicants as
established as specified in 43.3(e) of this part, the Department shall
allocate immigrant visa numbers for use in connection with the issuance
of immigrant visas and the granting of adjustment of status.
(52 FR 1450, Jan. 14, 1987, as amended at 53 FR 49980, Dec. 13, 1988)
22 CFR 43.5 Eligibility to receive a visa.
The eligibility of an applicant for a visa under section 314 of Pub.
L. 99-603 shall be determined as provided in the Immigration and
Nationality Act and in part 42 of this chapter except that the
provisions of section 212(a)(5) of such Act shall not apply in
determining an applicant's eligibility for such visa.
(52 FR 1450, Jan. 14, 1987, as amended at 56 FR 30428, July 2, 1991)
22 CFR 43.6 Processing and adjudication during Fiscal Year 1991.
(a) General. During fiscal year 1991 immigrant visa numbers shall be
made available, without numerical limitation, to aliens who were
registered pursuant to 43.3 of this part and who were notified of their
selection prior to May 1, 1990. Aliens to whom immigrant visa numbers
shall be made available pursuant to this section shall include, but
shall not be limited to --
(1) Aliens who were refused an immigrant visa under section 212(e) or
212(a)(19) of the INA prior to October 1, 1990;
(2) Aliens who were informed by a consular officer prior to October
1, 1990, that section 212(e) of the INA would preclude issuance of a
visa to them, unless waived, and who thereafter abandoned pursuit of
their applications; and
(3) Aliens who were, prior to October 1, 1990, determined to be
nationals, but not natives, of an adversely affected country.
(b) Eligibility to receive a visa. The provisions of 43.5 of this
part shall apply to determinations of eligibility to receive a visa
during fiscal year 1991. In addition, the provisions of section 212(e)
of the Immigration and Nationality Act, as amended, shall not apply in
making such determinations. An alien determined to be ineligible to
receive a visa under section 212(a)(19) of such Act may not be issued a
visa during fiscal year 1991 unless the Attorney General shall have
waived such ineligibility.
(56 FR 20349, May 3, 1991)
22 CFR 43.6 Subpart B -- Documentation of Immigrants Under Section 132
of Public Law 101-649
Source: 56 FR 46101, Sept. 9, 1991, unless otherwise noted.
22 CFR 43.11 General.
Except as specifically provided in this subpart, the provisions of
the Immigration and Nationality Act, as amended, and of parts 40 and 42
of this chapter shall apply to application for, consideration of, and
issuance or refusal of, immigrant visas under section 132 of Public Law
101-649.
22 CFR 43.12 Definitions.
The following definitions shall be applicable to this part:
(a) Adversely affected foreign state shall have the meaning ascribed
to the term ''adversely affected country'' in 43.2 of subpart A of this
part;
(b) A firm commitment for employment in the United States for a
period of at least one year shall mean an offer of employment from an
employer in the United States which specifies that the place of
employment is within the United States and which does not, by its terms,
limit the duration of the offered employment to a period of less than
one year;
(c) Native shall mean born within the territory of a foreign state,
or entitled to be charged for immigration purposes to that foreign state
pursuant to section 202(b) of the Immigration and Nationality Act, as
amended.
22 CFR 43.13 Registration.
(a) Limitations on registration. An alien shall not be eligible to
register under this section unless he or she is a native of an adversely
affected foreign state (as defined in 43.12 of this subpart) other than
Canada. Applications for registration shall be made separately for each
of the Fiscal Years 1992, 1993, and 1994, during application periods
established by the Department for such purpose. An application for
registration submitted during the application period for a fiscal year
shall not be retained for consideration with respect to any fiscal year
other than the one for which it was submitted. The dates of each
application period held pursuant to this section shall be announced by
the Department of State by publishing a Public Notice in the Federal
Register and through such other means as will ensure wide dissemination
of the information, both within the United States and elsewhere.
Applications for registration will be accepted only between 12:01 a.m.
on the first day of the application period and Midnight of the last day
of the application period. Applications received at any other time will
not be considered.
(b) Place of Registration. An alien eligible to register pursuant to
paragraph (a) of this section who desires to register as an applicant
for a visa under section 132 of Public Law 101-649 shall apply for
registration by mail. The address to which such applications shall be
submitted shall be included in the announcement of the application
period provided for in paragraph (a) of this section. Hand-delivered
applications, telegrams, or envelopes sent by any means requiring any
form of acknowledgement of receipt by the recipient will not be
accepted. Only one application may be submitted in each envelope and,
if an envelope contains two or more applications, only the first
application removed from the envelope will be accepted and processed.
(c) Application -- (1) Form of application. An application for
registration under this section shall consist of a sheet of paper on
which shall be typed or legibly printed in the Roman alphabet the
applicant's name, date and place of birth (including city and county,
province or other political subdivision, and country), name(s), date(s)
and place(s) of birth of spouse and child(ren), if any, a current
mailing address, and location of consular office nearest to current
residence or, if in the United States, nearest to last foreign residence
prior to entry into the U.S.
(2) Marking of mailing envelope. An alien who submits an application
as provided in this subpart shall type or print legibly in the Roman
alphabet the name of the adversely affected country of which he or she
is a native on the upper left-hand corner of the front of the envelope
in which the application is mailed.
(d) Derivative registration. An application for registration
submitted in accordance with paragraphs (a) and (b) of this section
shall be considered to include automatically the spouse or child of the
applicant, whether or not such spouse or child is named in the
application if, in the case of a spouse, the marriage to the applicant
took place prior to the applicant's admission for permanent residence
or, in the case of a child, the child is the issue of a marriage which
took place prior to the applicant's admission to the United States for
permanent residence.
(e) Priority date. An alien's priority date for consideration of his
or her application under this subpart shall be the date, hour, minute,
and second (within the application periods provided for in paragraph (a)
of this section) of the receipt and processing of the application by the
Visa Office of the Department of State.
(f) Waiting lists. The Department shall establish two waiting lists
of applicants whose applications have been received and processed for
consideration under this subpart. Both lists shall be maintained in the
chronological order of priority dates established as provided in
paragraph (e) of this section. One list shall consist of applicants who
are natives of Ireland. The other list shall consist of all applicants
who are natives of adversely affected foreign states.
22 CFR 43.14 Order of consideration.
(a) Registration. Applicants shall be registered for further
consideration under this Subpart in the chronological order in which
their applications are received from the United States Postal Service
mail-handling facility. Applicants shall be registered only in a number
sufficient to ensure usage of all immigrant visa numbers available
during the fiscal year for which the application period is held and to
ensure that not fewer than 40 percent of such visa numbers are made
available to natives of Ireland.
(b) Further processing. The Department shall inform applicants
registered pursuant to paragraph (a) of this section of the steps
necessary to meet the requirements of INA 222(b) in order to apply
formally for an immigrant visa.
22 CFR 43.15 Control of numerical limitation.
(a) Centralized Control. Centralized control of the numerical
limitation specified in section 132(a) of Public Law 101-649 is
established in the Department. In order to effect this control, the
Department shall limit the number of immigrant visas and the number of
adjustments of status that may be granted to aliens applying under
section 132 of Public Law 101-649 to a number (1) not to exceed 40,000
each in fiscal years 1992, 1993, or 1994 and (2) not to exceed, in any
month of any such fiscal year, 4,000 plus any balance remaining from
authorizations for preceding months in the same fiscal year.
(b) Allocation of immigrant visa numbers. Within the limitations
specified in paragraph (a) of this section, the Department shall
allocate immigrant visa numbers for use in connection with the issuance
of immigrant visas and the granting of adjustment of status. Such
allocation shall be based upon the chronological order of priority dates
of applicants as established pursuant to 43.13(e) of this subpart,
except that allocations shall be made in such a manner as to ensure
that, to the extent natives of Ireland have become documentarily
qualified, not less than 40 percent of the visa numbers allocated during
any fiscal year are allocated to natives of Ireland. To the extent that
allocations of visa numbers to natives of Ireland must be made
separately to ensure compliance with the requirement that at least 40
percent of the total be allocated to such aliens, such allocations shall
also be made to such aliens in the chronological order of their priority
dates.
22 CFR 43.16 Fees.
(a) Applicant for immigrant visa. An applicant who is registered for
immigrant visa processing pursuant to 43.13 of this subpart, who
receives from the Department notification of the steps necessary to
apply formally for an immigrant visa, and who will apply for an
immigrant visa shall remit a fee of $25 (or its equivalent in the
currency of the country in which such consular office is located) to the
consular office at which the formal immigrant visa application will be
made. The fee shall be $25 regardless of whether or not the applicant
has a spouse and/or child(ren) who intend to accompany or follow to join
the applicant. The remittance shall be negotiable in such form as the
Department shall specify and shall be remitted to the consular office
with the completed Form OF-230, Application for Immigrant Visa and Alien
Registration, Part I -- Biographic Data. Consular officers shall give
no further consideration to an application under this subpart until the
fee specified herein has been received.
(b) Applicant for adjustment of status. An applicant who is
registered for immigrant visa processing pursuant to 43.13 of this
subpart and who receives notification of the steps necessary to apply
formally for an immigrant visa, but intends to apply to the Immigration
and Naturalization Service for adjustment of status under section 245 of
the Immigration and Nationality Act, shall nonetheless complete and
return OF-230, Application for Immigrant Visa and Alien Registration,
Part I -- Biographic Data, together with the required fee of $25, as
provided in paragraph (a) of this section. The applicant shall also
inform the consular officer that he or she intends to apply for
adjustment of status rather than for an immigrant visa.
22 CFR 43.17 Eligibility to receive a visa.
The eligibility of an applicant for a visa under section 132 of
Public Law 101-649 shall be determined as provided in the Immigration
and Nationality Act and in part 42 of this chapter except that such an
applicant shall be deemed to be ineligible to receive a visa under
section 212(a)(4) of the Immigration and Nationality Act, as amended, if
he or she does not present to the consular officer a firm commitment for
employment in the United States for a period of at least one year, as
defined in 43.12(b).
(56 FR 46101, Sept. 9, 1991; 56 FR 49821, Oct. 1, 1991)
22 CFR 43.17 PART 44 -- VISAS: DOCUMENTATION OF IMMIGRANTS UNDER
SECTION 3 OF PUB. L. 100-658.
Sec.
44.1 General.
44.2 Definitions.
44.3 Registration of applicants.
44.4 Selection and processing of registrants.
44.5 Control of numerical limitation.
44.6 Eligibility to receive a visa.
Authority: Sec. 104, 66 Stat. 174, 8 U.S.C. 1104; Sec. 109(b)(1),
91 Stat. 847; Sec. 314, 100 Stat. 3359, 8 U.S.C. 1153 Note; Sec. 3,
102 Stat. 3908, 8 U.S.C. 1101 note; Sec. 601, 104 Stat. 5067; 8
U.S.C. 1182, unless otherwise noted.
Source: 54 FR 7169, Feb. 16, 1989, unless otherwise noted.
22 CFR 44.1 General.
Except as specifically provided in this part, the provisions of the
INA, as amended, and of parts 40 and 42 of this chapter shall apply to
application for, consideration of, and issuance or refusal of, immigrant
visas under section 3 of Pub. L. 100-658.
22 CFR 44.2 Definitions.
The following definitions shall be applicable to this part:
(a) Petition shall mean any typewritten document using the Roman
alphabet and containing the name of the alien, the alien's date and
place of birth, the alien's current mailing address, the location of the
consular office nearest to the alien's residence abroad or, if the alien
is in the United States, to the alien's last residence abroad prior to
entry into the United States, and the name, date and place of birth of
the alien's spouse and child or children (if any), to which shall be
affixed a photograph of the alien 1 & 1/2 inches -- 3.8 cm -- square
showing a recent full-face likeness against a light background (black
and white or color), as well as a separate photograph of a spouse and
each child, if any.
(b) Under-represented country shall mean any foreign state, as
defined in section 101(a)(14) of the Immigration and Nationality Act, as
amended, natives of which used less than 5,000 immigrant visa numbers
under INA 203(a) during Fiscal Year 1988. Immigrant visa numbers used
by aliens under section 314 of Pub. L. 99-603 during Fiscal Year 1988
shall not be counted for this purpose. Usage of immigrant visa numbers
by foreign states shall be determined from the records of the Visa
Office of the Department of State. For the purposes of this part, a
dependent area, as defined in 22 CFR 40.1(f), shall be considered to be
a part of its governing foreign state.
22 CFR 44.3 Registration of applicants.
(a) Limitations on registration. An alien shall not be eligible to
register under this section unless the alien is a native of an
under-represented country as defined in 44.2(b) of this part. All
foreign states and dependent areas for immigration purposes are
under-represented except the following -- China-mainland born,
China-Taiwan born, Colombia, the Dominican Republic, El Salvador, the
United Kingdom (including the dependent areas of Anguilla, Bermuda,
British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar,
Hong Kong, Montserrat, Pitcairn, St. Helena, and Turks and Caicos
Islands), Guyana, Haiti, India, Jamaica, Korea, Mexico, and the
Phillippines. Petitions from aliens seeking to register will be
accepted only from March 1, 1989 until March 31, 1989. Applications
received before or after those dates will not be considered. If the
Department thereafter determines that it is necessary to establish a
further period for registration in order to ensure that the number of
qualified applicants is sufficient to permit allocation of all immigrant
visa numbers authorized by section 3 of Pub. L. 100-658, the Department
will so provide by Public Notice in the Federal Register.
(b) Place of registration. An alien who is a native of an
under-represented country who desires to register as an applicant for a
visa under section 3 of Pub. L. 100-658 shall submit a petition in a
separate envelope by mail to: OP-1, P.O. Box 20199, Washington, D.C.,
20199-9998. The envelope used for mailing the application must be not
larger than 9 & 1/2 by 4 & 1/2 inches (approximately 24 cm by 11 cm) and
not smaller than 6 by 3 & 1/2 inches (approximately 15 cm by 9 cm) in
size. Petitions shall not be accepted for this purpose by any means
other than by mail nor at any address other than the one specified in
the preceding sentence. All petitions shall be submitted by regular
domestic or international surface or airmail. Petitions submitted by
any means requiring any form of written acknowledgement or confirmation
of receipt will not be given consideration. All envelopes submitted for
this purpose shall bear on the outside thereof, clearly typewritten and
in the Roman alphabet, the name and current mailing address of the
applicant as they are typed on the petition contained therein.
(c) Derivative registration. A petition submitted in accordance with
44.3 (a) and (b) shall be considered to include automatically the
spouse or child of the applicant, whether or not such spouse or child is
named in the petition, if, in the case of a spouse, the marriage to the
applicant took place prior to the applicant's admission to the United
States for permanent residence. The petition shall also be considered
to include a child born after the admission of the parent for permanent
residence if the child is the issue of a marriage which took place prior
to the applicant's admission to the United States for permanent
residence.
22 CFR 44.4 Selection and processing of registrants.
(a) Selection. All envelopes received at the mailing address
specified in 44.3(b) during the period specified in 44.3(a) and
bearing the name and address of the petitioner as specified in 44.3(b)
shall be assigned a number in order of receipt. Envelopes received
prior or subsequent to the specified period and those not bearing the
name and mailing address of the petitioner shall be set aside without
further processing or consideration. Upon completion of the numbering
of all envelopes, all numbers assigned shall be rank-ordered at random
by a computer using standard computer software for this purpose. A
quantity of envelopes sufficient to permit the processing and issuance
of all immigrant visas authorized under section 3 of Pub. L. 100-658
shall then be selected in rank order as determined by the computer
program. Any alien in whose name two or more petitions for this purpose
are submitted shall be disqualified from consideration for registration
or selection under this section.
(b) Processing. Upon selection of the envelopes pursuant to the
provisions of 44.4(a), the envelopes shall be opened and the applicant
assigned the rank order number determined by the computer program. The
information concerning the applicants selected, including the
applicant's rank order number, shall be transmitted to the consular
office named in the petition. Thereafter, the consular office shall
process the application in accordance with the applicable provisions of
part 42 of this chapter and 44.5 and 44.6 of this part.
22 CFR 44.5 Control of numerical limitation.
(a) Centralized control. Centralized control of the numerical
limitation specified in section 3 of Pub. L. 100-658 is established in
the Department of State. In order to effect this control, the
Department shall limit the number of immigrant visas and the number of
adjustments of status that may be granted to aliens applying under
section 3 of Pub. L. 100-658 to a number not to exceed 10,000 each in
Fiscal Years 1990 and 1991 and not to exceed, in any month of either
such fiscal year, 1,000 plus any balance remaining from authorizations
for preceding months in the same fiscal year.
(b) Notification of applicants. Consular officers shall notify
applicants to take the steps necessary to meet the requirements of INA
222(b) in order to apply formally for a visa upon notification from the
Department that the applicants have been selected as provided in 44.4.
(c) Reports of applicants ready to apply formally for a visa.
Consular officers shall report to the Department monthly, or at such
other intervals as the Department may direct, the rank order numbers of
applicants notified pursuant to 44.5(b) who have informed the consular
office that they have obtained the documents required under INA 222(b),
and for whom the necessary clearance procedures have been completed.
(d) Allocation of immigrant visa numbers. Within the numerical
limitations specified in 44.5(a), the Department shall allocate
immigrant visa numbers for use in connection with the issuance of
immigrant visas and the granting of adjustment of status based on the
rank order numbers of visa applicants reported by consular officers
pursuant to 44.5(c) and of applicants for adjustment of status reported
by officers of INS.
22 CFR 44.6 Eligibility to receive a visa.
The eligibility of an applicant for a visa under section 3 of Pub.
L. 100-658 shall be determined as provided in the INA, as amended, and
in parts 40 and 42 of this chapter except that the provisions of INA
212(a)(5) shall not apply in determining an alien's eligibility for such
visa.
(54 FR 7169, Feb. 16, 1989, as amended at 56 FR 30428, July 2, 1991)
22 CFR 44.6 Pt. 45
22 CFR 44.6 PART 45 -- VISAS: DOCUMENTATION OF IMMIGRANTS UNDER
SECTION 124 OF PUBLIC LAW 101-649
Sec.
45.1 General.
45.2 Priority date of applicants.
45.3 Control of numerical limitations.
45.4 Period of validity of immigrant visas.
45.5 Redetermination of admissibility if visa validity extended.
45.6 Issuance of immigrant visa upon redetermination of
admissibility.
Authority: 8 U.S.C. 1104; 8 U.S.C. 1153 Note, unless otherwise
noted.
Source: 56 FR 32506, July 17, 1991, unless otherwise noted.
22 CFR 45.1 General.
Except as specifically provided in this part, the provisions of the
INA, as amended, and of parts 40 and 42 of this chapter shall apply to
application for, consideration of, and issuance or refusal of, immigrant
visas under section 124 of Public Law 101-649.
22 CFR 45.2 Priority date of applicants.
The priority date of an alien who is the beneficiary of a petition
approved by the Service to accord status under section 124 of Public Law
101-649 shall be the filing date of the approved petition, as determined
by the Immigration and Naturalization Service. The priority date of the
spouse or child, accompanying or following to join such an alien shall
be the priority date of the alien spouse or parent.
22 CFR 45.3 Control of numerical limitation.
(a) Centralized control. Centralized control of the numerical
limitation specified in section 124 of Public Law 101-649 is established
in the Department. In order to effect this control, the Department
shall limit the number of immigrant visas and the number of adjustments
of status that may be granted to aliens applying under section 124 of
Public Law 101-649 to a number not to exceed 12,000 in any fiscal year
and not to exceed in any month of a fiscal year 1,200 plus any balance
remaining from authorizations for preceding months in the same fiscal
year.
(b) Allocation of immigrant visa numbers. Within the numerical
limitations specified in paragraph (a) of this section and based on the
chronological order of priority dates of applicants as established
pursuant to 45.2 of this part, the Department shall allocate immigrant
visa numbers for use in connection with the issuance of immigrant visas
and the granting of adjustment of status to such aliens.
22 CFR 45.4 Period of validity of immigrant visas.
The period of validity of an immigrant visa issued to an alien
pursuant to the provisions of this part may, at the request of the
applicant, be extended until January 1, 2002, if the applicant so
requests either at the time of issuance of the visa or within four
months thereafter. If the applicant fails to make such a request at the
time of visa issuance but subsequently, within four months thereafter,
makes such a request, the consular officer shall issue a replacement
visa to the alien in accordance with the provisions of 42.74(b) of part
42 of this title.
22 CFR 45.5 Redetermination of admissibility if visa validity extended.
(a) An alien to whom an immigrant visa is issued pursuant to this
part who elects to have the validity of the visa extended as provided in
45.4 shall have his or her admissibility redetermined prior to actual
travel to the United States as follows:
(1) If the alien is the beneficiary of a petition to accord status
under section 124 of Public Law 101-649 which was supported by a
specific offer of employment from the petitioning entity, or is the
spouse or child of such an alien, a redetermination of admissibility is
required only if the anticipated date of actual application for
admission for permanent residence is more than four months following the
date of visa issuance;
(2) If the alien is the beneficiary of a petition to accord status
under section 124 of Public Law 101-649 which was supported by a general
assurance from the petitioning entity that an appropriate job would be
made available to the alien upon entry, or is the spouse or child of
such an alien, a redetermination of admissibility is required whenever
the alien proposes to apply for admission for permanent residence,
whether within four months of the date of visa issuance or later.
(b) When an alien to whom an immigrant visa is issued pursuant to
this part elects to have the validity of the visa extended pursuant to
paragraph (a) of this section, the consular officer shall notify the
alien in writing of the requirement for a redetermination of
admissibility as provided in paragraph (a) and shall endorse the visa
''section 154 applies.'' Thereafter, the alien shall, not sooner than
four months preceding the contemplated date of application for admission
for permanent residence notify the appropriate consular officer of his
or her intention to travel to the United States for this purpose. The
consular officer shall thereupon schedule an appointment with such alien
for the purpose of determining whether or not the alien remains
admissible into the United States for permanent residence. If the
consular officer determines that the alien continues to be so
admissible, he or she shall issue to the alien a duplicate immigrant
visa as provided in 45.6 of this part. If the consular officer
determines that the alien has become inadmissible to the United States,
he or she shall revoke the visa as provided in 42.82 of part 42 of this
title.
(c) An alien who elects to have the period of validity of his or her
immigrant visa extended pursuant to 45.4 and whose entitlement to the
immigrant classification of such visa was based upon his or her status
as a child at the time of visa issuance shall not cease to be entitled
to such visa by reason of attaining age twenty-one or marrying prior to
his or her application for admission for permanent residence.
(d) An alien who seeks a redetermination of admissibility pursuant to
paragraph (a) of this section shall not be found to be admissible unless
he or she:
(1) Has continued to be employed by the petitioning entity in a
qualifying position since issuance of the visa and presents a letter
describing the specific qualifying employment the alien will take up
upon admission for permanent residence; or
(2) Is the spouse or child accompanying or following to join such an
alien.
(e) For the purposes of this section, ''qualifying position'' shall
include both the position occupied by the alien at the time the position
in the alien's behalf was approved and any other position within the
petitioning entity's organization, regardless of geographical location,
which would otherwise meet the requirements for approval of such a
petition in the alien's behalf. For the purposes of this section,
''qualifying employment'' shall mean any position in the United States
of the kind required for approval of such a petition.
22 CFR 45.6 Issuance of immigrant visa upon redetermination of
admissibility.
When an alien to whom an immigrant visa having extended validity has
been issued pursuant to 45.5 of this part applies for a redetermination
of admissibility and the consular officer determines that the alien
remains admissible to the United States, the consular officer shall
issue to the alien a new immigrant visa valid for a period of four
months. The applicant shall execute a new application and provide the
necessary current supporting documents. The applicant shall pay a new
issuance fee. The consular officer shall insert the word ''DUPLICATE''
on Form OF-155A before the word ''IMMIGRANT'' on each immigrant visa
issued pursuant to this section.
22 CFR 45.6 PART 46 -- CONTROL OF ALIENS DEPARTING FROM THE UNITED
STATES
Sec.
46.1 Definitions.
46.2 Authority of departure-control officer to prevent alien's
departure from the United States.
46.3 Aliens whose departure is deemed prejudicial to the interests of
the United States.
46.4 Procedure in case of alien prevented from departing from the
United States.
46.5 Hearing procedure before special inquiry officer.
46.6 Departure from the Canal Zone, the Trust Territory of the
Pacific Islands, or outlying possessions of the United States.
46.7 Instructions from the Administrator required in certain cases.
Authority: Secs. 104, 215, 66 Stat. 174, 190; 8 U.S.C. 1104, 1185.
22 CFR 46.1 Definitions.
For the purposes of this part:
(a) The term alien means any person who is not a citizen or national
of the United States.
(b) The term Commissioner means the Commissioner of Immigration and
Naturalization.
(c) The term regional commissioner means an officer of the
Immigration and Naturalization Service duly appointed or designated as a
regional commissioner, or an officer who has been designated to act as a
regional commissioner.
(d) The term district director means an officer of the Immigration
and Naturalization Service duly appointed or designated as a district
director, or an officer who has been designated to act as a district
director.
(e) The term United States means the several States, the District of
Columbia, the Canal Zone, Puerto Rico, the Virgin Islands, Guam,
American Samoa, Swains Island, the Trust Territory of the Pacific
Islands, and all other territory and waters, continental and insular,
subject to the jurisdiction of the United States.
(f) The term continental United States means the District of Columbia
and the several States, except Alaska and Hawaii.
(g) The term geographical part of the United States means (1) the
continental United States, (2) Alaska, (3) Hawaii, (4) Puerto Rico, (5)
the Virgin Islands, (6) Guam, (7) the Canal Zone, (8) American Samoa,
(9) Swains Island, or (10) the Trust Territory of the Pacific Islands.
(h) The term depart from the United States means depart by land,
water, or air (1) from the United States for any foreign place, or (2)
from one geographical part of the United States for a separate
geographical part of the United States: Provided, That a trip or
journey upon a public ferry, passenger vessel sailing coastwise on a
fixed schedule, excursion vessel, or aircraft, having both termini in
the continental United States or in any one of the other geographical
parts of the United States and not touching any territory or waters
under the jurisdiction or control of a foreign power, shall not be
deemed a departure from the United States.
(i) The term departure-control officer means any immigration officer
as defined in the regulations of the Immigration and Naturalization
Service who is designated to supervise the departure of aliens, or any
officer or employee of the United States designated by the Governor of
the Canal Zone, the High Commissioner of the Trust Territory of the
Pacific Islands, or the governor of an outlying possession of the United
States, to supervise the departure of aliens.
(j) The term port of departure means a port in the continental United
States, Alaska, Guam, Hawaii, Puerto Rico or the Virgin Islands,
designated as a port of entry by the Attorney General or by the
Commissioner, or in exceptional circumstances such other place as the
departure-control officer may, in his discretion, designate in an
individual case, or a port in American Samoa, Swains Island, the Canal
Zone, or the Trust Territory of the Pacific Islands, designated as a
port of entry by the chief executive officer thereof.
(k) The term special inquiry officer shall have the meaning ascribed
thereto in section 101(b)(4) of the Immigration and Nationality Act.
(22 FR 10827, Dec. 27, 1957, as amended at 25 FR 7022, July 23, 1960)
22 CFR 46.2 Authority of departure-control officer to prevent alien's
departure from the United States.
(a) No alien shall depart, or attempt to depart, from the United
States if his departure would be prejudicial to the interests of the
United States under the provisions of 46.3. Any departure-control
officer who knows or has reason to believe that the case of an alien in
the United States comes within the provisions of 46.3 shall temporarily
prevent the departure of such alien from the United States and shall
serve him with a written temporary order directing him not to depart, or
attempt to depart, from the United States until notified of the
revocation of the order.
(b) The written order temporarily preventing an alien, other than an
enemy alien, from departing from the United States shall become final 15
days after the date of service thereof upon the alien, unless prior
thereto the alien requests a hearing as hereinafter provided. At such
time as the alien is served with an order temporarily preventing his
departure from the United States, he shall be notified in writing
concerning the provisions of this paragraph, and shall be advised of his
right to request a hearing if entitled thereto under 46.4. In the case
of an enemy alien, the written order preventing departure shall become
final on the date of its service upon the alien.
(c) Any alien who seeks to depart from the United States may be
required, in the discretion of the departure-control officer, to be
examined under oath and to submit for official inspection all documents,
articles, and other property in his possession which are being removed
from the United States upon, or in connection with, the alien's
departure. The departure-control officer may permit such other persons,
including officials of the Department of State and interpreters, to
participate in such examination or inspection and may exclude from
presence at such examination or inspection any person whose presence
would not further the objectives of such examination or inspection. The
departure-control officer shall temporarily prevent the departure of any
alien who refuses to submit to such examination or inspection, and may,
if necessary to cause the alien to submit to such examination or
inspection, take possession of the alien's passport or other travel
document or issue a subpoena requiring the alien to submit to such
examination or inspection.
(22 FR 10827, Dec. 27, 1957, as amended at 45 FR 64174, Sept. 29,
1980)
22 CFR 46.3 Aliens whose departure is deemed prejudicial to the
interests of the United States.
The departure from the United States of any alien within one or more
of the following categories shall be deemed prejudicial to the interest
of the United States:
(a) Any alien who is in possession of, and who is believed likely to
disclose to unauthorized persons, information concerning the plans,
preparations, equipment, or establishments for the national defense and
security of the United States.
(b) Any alien who seeks to depart from the United States to engage
in, or who is likely to engage in, activities of any kind designed to
obstruct, impede, retard, delay or counteract the effectiveness of the
national defense of the United States or the measures adopted by the
United States or the United Nations for the defense of any other
country.
(c) Any alien who seeks to depart from the United States to engage
in, or who is likely to engage in, activities which would obstruct,
impede, retard, delay, or counteract the effectiveness of any plans made
or action taken by any country cooperating with the United States in
measures adopted to promote the peace, defense, or safety of the United
States or such other country.
(d) Any alien who seeks to depart from the United States for the
purpose of organizing, directing, or participating in any rebellion,
insurrection, or violent uprising in or against the United States or a
country allied with the United States, or of waging war against the
United States or its allies, or of destroying, or depriving the United
States of sources of supplies or materials vital to the national defense
of the United States, or to the effectiveness of the measures adopted by
the United States for its defense, or for the defense of any other
country allied with the United States.
(e) Any alien who is subject to registration for training and service
in the Armed Forces of the United States and who fails to present a
Registration Certificate (SSS Form No. 2) showing that he has complied
with his obligation to register under the Universal Military Training
and Service Act, as amended.
(f) Any alien who is a fugitive from justice on account of an offense
punishable in the United States.
(g) Any alien who is needed in the United States as a witness in, or
as a party to, any criminal case under investigation or pending in a
court in the United States: Provided, That any alien who is a witness
in, or a party to, any criminal case pending in any criminal court
proceeding may be permitted to depart from the United States with the
consent of the appropriate prosecuting authority, unless such alien is
otherwise prohibited from departing under the provisions of this part.
(h) Any alien who is needed in the United States in connection with
any investigation or proceeding being, or soon to be, conducted by any
official executive, legislative, or judicial agency in the United States
or by any governmental committee, board, bureau, commission, or body in
the United States, whether national, state, or local.
(i) Any alien whose technical or scientific training and knowledge
might be utilized by an enemy or a potential enemy of the United States
to undermine and defeat the military and defensive operations of the
United States or of any nation cooperating with the United States in the
interests of collective security.
(j) Any alien, where doubt exists whether such alien is departing or
seeking to depart from the United States voluntarily except an alien who
is departing or seeking to depart subject to an order issued in
extradition, exclusion, or deportation proceedings.
(k) Any alien whose case does not fall within any of the categories
described in paragraphs (a) to (j), inclusive, of this section, but
which involves circumstances of a similar character rendering the
alien's departure prejudicial to the interests of the United States.
(Sec. 215, Immigration and Nationality Act, 66 Stat. 190, 8 U.S.C.
1185; Proc. No. 3004 of January 17, 1953)
(22 FR 10828, Dec. 27, 1957, as amended at 42 FR 19479, Apr. 14,
1977; 45 FR 64174, Sept. 29, 1980)
22 CFR 46.4 Procedure in case of alien prevented from departing from
the United States.
(a) Any alien, other than an enemy alien, whose departure has been
temporarily prevented under the provisions of 46.2 may, within 15 days
of the service upon him of the written order temporarily preventing his
departure, request a hearing before a special inquiry officer. The
alien's request for a hearing shall be made in writing and shall be
addressed to the district director having administrative jurisdiction
over the alien's place of residence. If the alien's request for a
hearing is timely made, the district director shall schedule a hearing
before a special inquiry officer, and notice of such hearing shall be
given to the alien. The notice of hearing shall, as specifically as
security considerations permit, inform the alien of the nature of the
case against him, shall fix the time and place of the hearing, and shall
inform the alien of his right to be represented, at no expense to the
Government, by counsel of his own choosing.
(b) Every alien for whom a hearing has been scheduled under paragraph
(a) of this section shall be entitled (1) to appear in person before the
special inquiry officer, (2) to be represented by counsel of his own
choice, (3) to have the opportunity to be heard and to present evidence,
(4) to cross-examine the witnesses who appear at the hearing, except
that if, in the course of the examination, it appears that further
examination may divulge information of a confidential or security
nature, the special inquiry officer may, in his discretion, preclude
further examination of the witness with respect to such matters, (5) to
examine any evidence in possession of the Government which is to be
considered in the disposition of the case, provided that such evidence
is not of a confidential or security nature the disclosure of which
would be prejudicial to the interests of the United States, (6) to have
the time and opportunity to produce evidence and witnesses on his own
behalf, and (7) to reasonable continuances upon request, for good cause
shown.
(c) Any special inquiry officer who is assigned to conduct the
hearing provided for in this section shall have the authority to: (1)
Administer oaths and affirmations, (2) present and receive evidence, (3)
interrogate, examine, and cross-examine under oath or affirmation both
the alien and witnesses, (4) rule upon all objections to the
introduction of evidence or motions made during the course of the
hearing, (5) take or cause depositions to be taken, (6) issue subpoenas,
and (7) take any further action consistent with applicable provisions of
law, executive orders, proclamations, and regulations.
(22 FR 10828, Dec. 27, 1957, as amended at 27 FR 1358, Feb. 14, 1962)
22 CFR 46.5 Hearing procedure before special inquiry officer.
(a) The hearing before the special inquiry officer shall be conducted
in accordance with the following procedure:
(1) The special inquiry officer shall advise the alien of the rights
and privileges accorded him under the provisions of 46.4.
(2) The special inquiry officer shall enter of record (i) a copy of
the order served upon the alien temporarily preventing his departure
from the United States, and (ii) a copy of the notice of hearing
furnished the alien.
(3) The alien shall be interrogated by the special inquiry officer as
to the matters considered pertinent to the proceeding, with opportunity
reserved to the alien to testify thereafter in his own behalf, if he so
chooses.
(4) The special inquiry officer shall present on behalf of the
Government such evidence, including the testimony of witnesses and the
certificates or written statements of Government officials or other
persons, as may be necessary and available. In the event such
certificates or statements are recieved in evidence, the alien may
request and, in the discretion of the special inquiry officer, be given
an opportunity to interrogate such officials or persons, by deposition
or otherwise, at a time and place and in a manner fixed by the special
inquiry officer: Provided, That when in the judgment of the special
inquiry officer any evidence relative to the disposition of the case is
of a confidential or security nature the disclosure of which would be
prejudicial to the interests of the United States, such evidence shall
not be presented at the hearing but shall be taken into consideration in
arriving at a decision in the case.
(5) The alien may present such additional evidence, including the
testimony of witnesses, as is pertinent and available.
(b) A complete verbatim transcript of the hearing, except statements
made off the record, shall be recorded. The alien shall be entitled,
upon request, to the loan of a copy of the transcript, without cost,
subject to reasonable conditions governing its use.
(c) Following the completion of the hearing, the special inquiry
officer shall make and render a recommended decision in the case, which
shall be governed by and based upon the evidence presented at the
hearing and any evidence of a confidential or security nature which the
Government may have in its possession. The decision of the special
inquiry officer shall recommend (1) that the temporary order preventing
the departure of the alien from the United States be made final, or (2)
that the temporary order preventing the departure of the alien from the
United States be revoked. This recommended decision of the special
inquiry officer shall be made in writing and shall set forth the
officer's reasons for such decision. The alien concerned shall at his
request be furnished a copy of the recommended decision of the special
inquiry officer, and shall be allowed a reasonable time, not to exceed
10 days, in which to submit representations with respect thereto in
writing.
(d) As soon as practicable after the completion of the hearing and
the rendering of a decision by the special inquiry officer, the district
director shall forward the entire record of the case, including the
recommended decision of the special inquiry officer and any written
representations submitted by the alien, to the regional commissioner
having jurisdiction over his district. After reviewing the record, the
regional commissioner shall render a decision in the case, which shall
be based upon the evidence in the record and on any evidence or
information of a confidential or security nature which he deems
pertinent. Whenever any decision is based in whole or in part on
confidential or security information not included in the record, the
decision shall state that such information was considered. A copy of
the regional commissioner's decision shall be furnished the alien, or
his attorney or representative. No administrative appeal shall lie from
the regional commissioner's decision.
(e) Notwithstanding any other provision of this part, the
Administrator of the Bureau of Security and Consular Affairs referred to
in section 104(b) of the Immigration and Nationality Act, or such other
officers of the Department of State as he may designate, after
consultation with the Commissioner, or such other officers of the
Immigration and Naturalization Service as he may designate, may at any
time permit the departure of an individual alien or of a group of aliens
from the United States if he determines that such action would be in the
national interest. If the Administrator specifically requests the
Commissioner to prevent the departure of a particular alien or of a
group of aliens, the Commissioner shall not permit the departure of such
alien or aliens until he has consulted with the Administrator.
(f) In any case arising under 46.1 to 46.7, the Administrator
shall, at his request, be kept advised, in as much detail as he may
indicate is necessary, of the facts and of any action taken or proposed.
(22 FR 10828, Dec. 27, 1957, as amended at 26 FR 3069, Apr. 11, 1961;
27 FR 1358, Feb. 14, 1962)
22 CFR 46.6 Departure from the Canal Zone, the Trust Territory of the
Pacific Islands, or outlying possessions of the United States.
(a) In addition to the restrictions and prohibitions imposed by the
provisions of this part upon the departure of aliens from the United
States, any alien who seeks to depart from the Canal Zone, the Trust
Territory of the Pacific Islands, or an outlying possession of the
United States shall comply with such other restrictions and prohibitions
as may be imposed by regulations prescribed, with the concurrence of the
Administrator of the Bureau of Security and Consular Affairs and the
Commissioner, by the Governor of the Canal Zone, the High Commissioner
of the Trust Territory of the Pacific Islands, or by the governor of an
outlying possession of the United States, respectively. No alien shall
be prevented from departing from such zone, territory, or possession
without first being accorded a hearing as provided in 46.4 and 46.5.
(b) The Governor of the Canal Zone, the High Commissioner of the
Trust Territory of the Pacific Islands, or the governor of any outlying
possession of the United States shall have the authority to designate
any employee or class of employees of the United States as hearing
officers for the purpose of conducting the hearing referred to in
paragraph (a) of this section. The hearing officer so designated shall
exercise the same powers, duties, and functions as are conferred upon
special inquiry officers under the provisions of this part. The chief
executive officer of such zone, territory, or possession shall, in lieu
of the regional commissioner, review the recommended decision of the
hearing officer, and shall render a decision in any case referred to
him, basing it on evidence in the record and on any evidence or
information of a confidential or a security nature which he deems
pertinent.
(22 FR 10829, Dec. 27, 1957, as amended at 26 FR 3069, Apr. 11, 1961)
22 CFR 46.7 Instructions from the Administrator required in certain
cases.
In the absence of appropriate instructions from the Administrator of
the Bureau of Security and Consular Affairs, departure-control officers
shall not exercise the authority conferred by 46.2 in the case of any
alien who seeks to depart from the United States in the status of a
nonimmigrant under section 101(a)(15) (A) or (G) of the Immigration and
Nationality Act, or in the status of a nonimmigrant under section 11(3),
11 (4), or 11(5) of the Agreement between the United Nations and the
United States of America regarding the Headquarters of the United
Nations (61 Stat. 756): Provided, That in cases of extreme urgency,
where the national security so requires, a departure-control officer may
preliminarily exercise the authority conferred by 46.2 pending the
outcome of consultation with the Administrator, which shall be
undertaken immediately. In all cases arising under this section, the
decision of the Administrator shall be controlling: Provided, That any
decision to prevent the departure of an alien shall be based upon a
hearing and record as prescribed in this part.
(26 FR 3069, Apr. 11, 1961; 26 FR 3188, Apr. 14, 1961)
22 CFR 46.7 SUBCHAPTER F -- NATIONALITY AND PASSPORTS
22 CFR 46.7 Pt. 47
22 CFR 46.7 PART 47 -- VISAS: DOCUMENTATION OF IMMIGRANTS UNDER
SECTION 134 OF PUBLIC LAW 101-649
Sec.
47.1 General.
47.2 Definition.
47.3 Place of application.
47.4 Liaison with the Central Tibetan Administration.
47.5 Determination regarding successful resettlement.
47.6 Order of consideration.
47.7 Control of numerical limitation.
Authority: 8 U.S.C. 1104, 1153 note.
Source: 56 FR 32325, July 16, 1991, unless otherwise noted.
22 CFR 47.1 General.
Except as specifically provided in this part, the provisions of the
Immigration and Nationality Act, as amended, and of part 42 of this
chapter shall apply to applications for, consideration of, and issuance
or refusal of immigrant visas under section 134 of Public Law 101-649.
22 CFR 47.2 Definition.
For purposes of this part, a displaced Tibetan includes not only a
native of Tibet but also the son, daughter, grandson or granddaughter of
a person born in Tibet, who has been living continuously in India or
Nepal since before November 29, 1990, and the spouse and child, if any,
of such person.
22 CFR 47.3 Place of application.
Application for immigrant visas pursuant to this part shall be
submitted to, and adjudicated by consular officers assigned to, the
United States Embassy at New Delhi, India.
22 CFR 47.4 Liaison with the Central Tibetan Administration.
The consular office at New Delhi shall communicate with
representatives of the Central Tibetan Administration (CTA) to inform
them of the requirements and procedures for the submission and
adjudication of applications for visas pursuant to this part and shall
furnish to such representatives copies of Form OF-222 with instructions
concerning completion of that Form and the documents required to be
submitted with it. The consular officer is also authorized to carry out
such activities with representatives of such private voluntary agencies
as may be identified by CTA as cooperating with it in arranging for the
immigration of beneficiaries of section 134 of Public Law 101-649.
22 CFR 47.5 Determination regarding successful resettlement.
A determination that an applicant might resettle successfully in the
United States shall be based upon factors including, but not limited to,
family or other ties to the United States, marketable job skills,
proficiency in English, age, and the nature of the arrangements made for
the resettlement and placement of the applicant in the United States,
after entry.
22 CFR 47.6 Order of consideration.
The consular officer at New Delhi shall give consideration to
applications for immigrant visas pursuant to this part in the order in
which such applications are received from the CTA for consideration.
22 CFR 47.7 Control of numerical limitation.
(a) Control of the numerical limitation specified in section 134(a)
of (Pub. L. 101-649) shall be exercised by the consular officer at New
Delhi. The consular officer shall ensure that not more than 1,000
immigrant visas are issued pursuant to this part, except that, if a
recipient of an immigrant visa is excluded from admission to the United
States and deported or fails to use the immigrant visa before the
expiration of its validity, an immigrant visa may be issued in lieu
thereof to another qualified alien. Authority to issue immigrant visas
pursuant to this part shall expire on September 30, 1993. Within that
time period and the overall limitation of 1,000 immigrant visas, there
shall be no fiscal year, quarterly, or monthly limitation on the
issuance of immigrant visas pursuant to this part.
(b) In issuing immigrant visas pursuant to this part, the consular
officer at New Delhi shall ensure that visas are apportioned equally
among aliens most likely to resettle successfully in the United States
and those not firmly resettled in India or Nepal, provided, however,
that visas not required for issuance to either group may be made
available to members of the other group. In addition, the consular
officer shall ensure that beneficiary aliens physically present in Nepal
are given appropriate consideration, taking into account the relative
size of the Tibetan communities in India and Nepal, respectively.
22 CFR 47.7 Pt. 50
22 CFR 47.7 PART 50 -- NATIONALITY PROCEDURES
Sec.
50.1 Definitions.
22 CFR 47.7 Subpart A -- Procedures for Determination of United States
Nationality of a Person Abroad
50.2 Determination of U.S. nationality of persons abroad.
50.3 Application for registration.
50.4 Application for passport.
50.5 Application for registration of birth abroad.
50.6 Registration at the Department of birth abroad.
50.7 Report of birth.
50.8 Certification of birth.
50.9 Card of identity and registration.
50.10 Certificate of nationality.
50.11 Certificate of identity for travel to the United States to
apply for admission.
22 CFR 47.7 Subpart B -- Retention and Resumption of Nationality
50.20 Retention of nationality.
50.30 Resumption of nationality.
22 CFR 47.7 Subpart C -- Loss of Nationality
50.40 Revocation of naturalization under section 340(d).
50.41 Certification of loss of U.S. nationality.
50.42 Determination of loss of nationality abroad in connection with
application for passport in the United States.
50.50 Renunciation of nationality.
50.51 Certification of expatriation.
50.52 Notice of right to appeal
Authority: Sec. 4, 63 Stat. 111, as amended, secs. 104, 360, 66
Stat. 174, 273; 22 U.S.C. 2658, 8 U.S.C. 1104, 1503.
Source: 31 FR 13537, Oct. 20, 1966, unless otherwise noted.
22 CFR 50.1 Definitions.
The following definitions shall be applicable to this part:
(a) United States means the continental United States, the State of
Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands of the
United States, the Canal Zone, American Samoa, Guam and any other
islands or territory over which the United States exercises
jurisdiction.
(b) Department means the Department of State of the United States of
America.
(c) Secretary means the Secretary of State.
(d) National means a citizen of the United States or a noncitizen
owing permanent allegiance to the United States.
(e) Passport means a travel document issued under the authority of
the Secretary of State attesting to the identity and nationality of the
bearer.
(f) Passport Agent means a person designated by the Department to
accept passport applications.
(31 FR 13537, Oct. 20, 1966, as amended at 31 FR 14521, Nov. 11,
1966)
22 CFR 50.1 Subpart A -- Procedures for Determination of United States Nationality of a Person Abroad
22 CFR 50.2 Determination of U.S. nationality of persons abroad.
The Department shall determine claims to United States nationality
when made by persons abroad on the basis of an application for
registration, for a passport, or for registration of birth.
22 CFR 50.3 Application for registration.
(a) A person abroad who claims U.S. nationality, or a representative
on his behalf, may apply at a consular post for registration to
establish his claim to U.S. nationality or to make his residence in the
particular consular area a matter of record.
(b) The applicant shall execute the registration form prescribed by
the Department for and shall submit the supporting evidence required by
subpart C of part 51 of this chapter. The diplomatic or consular
officer shall determine the period of time for which the registration
will be valid.
22 CFR 50.4 Application for passport.
A claim to U.S. nationality in connection with an application for
passport shall be determined by posts abroad in accordance with the
regulations contained in part 51 of this chapter.
22 CFR 50.5 Application for registration of birth abroad.
Upon application by the parents or their representative, a consular
officer may record the birth of a U.S. citizen child in his consular
district. The officer shall require the applicant to submit evidence
meeting the requirements of subpart C of part 51 of this chapter and
shall include:
(a) Proof of child's birth. Proof of child's birth usually consists
of, but is not limited to, an authentic copy of the record of the birth
filed with local authorities, a baptismal certificate, a military
hospital certificate of birth, or an affidavit of the doctor or the
person attending the birth. If no proof of birth is available, the
person seeking to register the birth shall submit his affidavit
explaining why such proof is not available and setting forth the facts
relating to the birth.
(b) Proof of child's citizenship. Evidence of parent's citizenship
and, if pertinent, evidence of parent's physical presence in the United
States as required for transmittal of claim of citizenship by the
Immigration and Nationality Act of 1952 shall be submitted.
22 CFR 50.6 Registration at the Department of birth abroad.
In the time of war or national emergency, passport agents may be
designated to complete consular reports of birth for children born at
military facilities which are not under the jurisdiction of a consular
office. An officer of the Armed Forces having authority to administer
oaths may take applications for registration under this section.
22 CFR 50.7 Report of birth.
(a) Upon submission of satisfactory proof of birth and nationality,
and at the time of the recording of the birth, the consular officer
shall issue to the parent or person in interest, when requested and upon
payment of the prescribed fee, a consular report of birth. The
Authentication Officer of the Department may issue additional copies of
the report of birth.
(b) When it records a birth under 50.6, the Department shall furnish
a copy of the ''Report of Birth'' without fee to the parent or person in
interest.
22 CFR 50.8 Certification of birth.
(a) At the time of registration of birth, the consular officer shall
furnish without fee to the parent or person in interest a certificate
entitled ''Certification of Birth.''
(b) At any time subsequent to the registration of birth, when
requested and upon payment of the required fee, the Authentication
Officer of the Department of State shall issue to the parent or person
in interest a ''Certification of Birth.''
22 CFR 50.9 Card of identity and registration.
When authorized by the Department, a consular officer may issue a
card of identity and registration for travel to the United States to a
national of the United States being deported from a foreign country, to
nationals involved in a common disaster abroad, or to a returning
national whose passport facilities have been denied or withdrawn under
the provisions of this part 50 or 51 or part 53 of this subchapter.
(Sec. 1, 63 Stat. 111, as amended (22 U.S.C. 2658))
(37 FR 11459, June 8, 1972)
22 CFR 50.10 Certificate of nationality.
(a) Any person who acquired the nationality of the United States at
birth and who is involved in any judicial or administrative proceedings
in a foreign state and needs to establish his U.S. nationality may
apply for a certificate of nationality in the form prescribed by the
Department.
(b) An applicant for a certificate of nationality must submit
evidence of his nationality and documentary evidence establishing that
he is involved in judicial or administrative proceedings in which proof
of his U.S. nationality is required.
22 CFR 50.11 Certificate of identity for travel to the United States to
apply for admission.
(a) A person applying abroad for a certificate of identity under
section 360(b) of the Immigration and Nationality Act shall complete the
application form prescribed by the Department and submit evidence to
support his claim to U.S. nationality.
(b) When a diplomatic or consular officer denies an application for a
certificate of identity under this section, the applicant may submit a
written appeal to the Secretary, stating the pertinent facts, the
grounds upon which U.S. nationality is claimed and his reasons for
considering that the denial was not justified.
(31 FR 14521, Nov. 11, 1966)
22 CFR 50.11 Subpart B -- Retention and Resumption of Nationality
22 CFR 50.20 Retention of nationality.
(a) Section 350 of the Immigration and Nationality Act. A person who
desires to retain his U.S. nationality under the provisions of section
350 of the Immigration and Nationality Act may satisfy the requirement
of section 350(1) by taking an oath of allegiance, within the time
period specified in the statute, in connection with an application for a
passport or for registration as a United States national.
(b) Section 351(b) of the Immigration and Nationality Act. (1) A
person who desires to claim U.S. nationality under the provisions of
section 351(b) of the Immigration and Nationality Act must, within the
time period specified in the statute, assert his claim to U.S.
nationality and subscribe to an oath of allegiance before a diplomatic
or consular officer.
(2) In addition, the person shall submit to the Department a
statement reciting his identity and acquisition or derivation of U.S.
nationality, the facts pertaining to the performance of any act which
would otherwise have been expatriative, and his desire to retain his
U.S. nationality.
22 CFR 50.30 Resumption of nationality.
(a) Section 324(c) of the Immigration and Nationality Act. (1) A
woman formerly a citizen of the United States at birth who wishes to
regain her citizenship under section 324(c) of the Immigration and
Nationality Act may apply abroad to a diplomatic or consular officer on
the form prescribed by the Department to take the oath of allegiance
prescribed by section 337 of that Act.
(2) The applicant shall submit documentary evidence to establish her
eligibility to take the oath of allegiance. If the diplomatic or
consular officer or the Department determines, when the application is
submitted to the Department for decision, that the applicant is
ineligible for resumption of citizenship because of section 313 of the
Immigration and Nationality Act, the oath shall not be administered.
(b) The Act of June 25, 1936. (1) A woman who has been restored to
citizenship by the Act of June 25, 1936, as amended by the Act of July
2, 1940, but who failed to take the oath of allegiance prior to December
24, 1952, as prescribed by the nationality laws, may apply abroad to any
diplomatic or consular officer to take the oath of allegiance as
prescribed by section 337 of the Immigration and Nationality Act.
(2) The applicant shall submit documentary evidence to establish her
eligibility to take the oath of allegiance. If the diplomatic or
consular officer or the Department determines, when the application is
submitted to the Department, that the applicant is ineligible for
resumption of citizenship under section 313 of the Immigration and
Nationality Act, the oath shall not be administered.
(c) Certification of repatriation. Upon request and payment of the
prescribed fee, a diplomatic or consular officer or the Department shall
issue a certified copy of the application and oath administered to a
woman repatriated under this section.
22 CFR 50.30 Subpart C -- Loss of Nationality
22 CFR 50.40 Revocation of naturalization under section 340(d).
(a) Whenever a diplomatic or consular officer determines that an
individual, within 5 years of the date upon which he was naturalized,
has established permanent residence abroad, and has failed to overcome
the presumption set forth in section 340(d) of the Immigration and
Nationality Act, the officer shall prepare and forward to the Department
an affidavit setting forth his findings. Before forwarding the
affidavit to the Department, the diplomatic or consular officer shall
give written notice to the person affected of his contemplated action
and afford the person a reasonable opportunity to present countervailing
evidence.
(b) If the Department agrees that the provisions of section 340(d) of
the Immigration and Nationality Act are applicable, it shall forward an
authenticated copy of the consular officer's affidavit, and other
relevant evidence to the Department of Justice for appropriate action.
22 CFR 50.41 Certification of loss of U.S. nationality.
(a) Whenever a diplomatic or consular officer has reason to believe
that a person, while in a foreign country, has lost his U.S.
nationality under any provision of Chapter 3 of Title III of the
Immigration and Nationality Act of 1952, or under any provision of
Chapter IV of the Nationality Act of 1940, as amended, he shall prepare
a certificate of loss of nationality containing the facts upon which
such belief is based and shall forward the certificate to the
Department.
(b) If the diplomatic or consular officer determines that any
document containing information relevant to the statements in the
certificate of loss of nationality should not be attached to the
certificate, he may summarize the pertinent information in the
appropriate section of the certificate and send the documents together
with the certificate to the Department.
(c) Whenever a person admits that he has expatriated himself by the
voluntary performance of one of the acts or fulfillment of one of the
conditions specified in Chapter 3, Title III of the Immigration and
Nationality Act of 1952 or section 401 of the Nationality Act of 1940,
and consents to the execution of an affidavit to that effect, the
diplomatic or consular officer shall recite in or attach to the
certificate the person's affidavit.
(d) If the certificate of loss of nationality is approved by the
Department, a copy shall be forwarded to the Immigration and
Naturalization Service, Department of Justice. The diplomatic or
consular office in which the certificate was prepared shall then forward
a copy of the certificate to the person to whom it relates or his
representative.
22 CFR 50.42 Determination of loss of nationality abroad in connection
with application for passport in the United States.
The Department shall determine that a person in the United States has
lost his U.S. citizenship while abroad only in connection with an
application for a passport.
22 CFR 50.50 Renunciation of nationality.
(a) A person desiring to renounce his U.S. nationality under section
349(a)(6) of the Immigration and Nationality Act shall appear before a
diplomatic or consular officer of the United States in the manner and
form prescribed by the Department. The renunciant must include on the
form he signs a statement that he absolutely and entirely renounces his
U.S. nationality together with all rights and privileges and all duties
of allegiance and fidelity thereunto pertaining.
(b) The diplomatic or consular officer shall forward to the
Department for approval the oath of renunciation together with a
certificate of loss of nationality as provided by section 358 of the
Immigration and Nationality Act. If the officer's report is approved by
the Department, copies of the certificate shall be forwarded to the
Immigration and Naturalization Service, Department of Justice, and to
the person to whom it relates or his representative.
22 CFR 50.51 Certification of expatriation.
The procedures under this part shall also apply to the preparation,
approval or disapproval of certificates of expatriation. Where loss of
nationality occurs under provisions of law other than those specified in
section 358 of the Immigration and Nationality Act of 1952, the
diplomatic or consular officer shall prepare a certificate of
expatriation instead of a certificate of loss of nationality.
22 CFR 50.52 Notice of right to appeal.
When an approved certificate of loss of nationality or certificate of
expatriation is forwarded to the person to whom it relates or his or her
representative, such person or representative shall be informed of the
right to appeal the Department's determination to the Board of Appellate
Review (part 7 of this chapter) within one year after approval of the
certificate of loss of nationality or the certificate of expatriation.
(44 FR 68827, Nov. 30, 1979)
22 CFR 50.52 PART 51 -- PASSPORTS
22 CFR 50.52 Pt. 51
Sec.
51.1 Definitions.
22 CFR 50.52 Subpart A -- General
51.2 Passport issued to nationals only.
51.3 Types of passports.
51.4 Validity of passports.
51.5 (Reserved)
51.6 Mutilation and alteration of passports.
51.7 Verification of passports.
51.8 Cancellation of previously issued passport.
51.9 Passport property of the U.S. Government.
22 CFR 50.52 Subpart B -- Application
51.20 General.
51.21 Execution of passport application.
51.22 (Reserved)
51.23 Name of applicant to be used in passport.
51.24 Change of name.
51.25 Photographs.
51.26 Incompetents.
51.27 Minors.
51.28 Identity of applicant.
51.30 Persons unacceptable as witnesses.
51.31 Affidavit of identifying witness.
51.32 Amendment of passports.
51.33 Release of passport information.
22 CFR 50.52 Subpart C -- Evidence of United States Citizenship or
Nationality
51.40 Burden of proof.
51.41 Documentary evidence.
51.43 Persons born in the United States applying for a passport for
the first time.
51.44 Persons born abroad applying for a passport for the first time.
51.45 Marriage to an alien prior to March 2, 1907.
51.46 Marriage to an alien between March 2, 1907, and September 22,
1922.
51.47 Marriage prior to September 22, 1922, to an alien who acquired
U.S. citizenship by naturalization prior to September 22, 1922.
51.48 Marriage between September 22, 1922, and March 3, 1931, to an
alien ineligible to citizenship.
51.49 Marriage on or after September 22, 1922, to an alien eligible
to naturalization.
51.50 Alien born woman -- marriage to citizen prior to September 22,
1922.
51.51 Former nationals of Spain or Denmark.
51.52 Citizenship by birth in territory under sovereignty of the
United States.
51.53 Proof of resumption of U.S. citizenship.
51.54 Requirement of additional evidence of U.S. citizenship,
51.55 Return or retention of evidence of citizenship.
22 CFR 50.52 Subpart D -- Fees
51.60 Form of remittance.
51.61 Statutory fees.
51.62 Regulatory fees.
51.63 Exemption from payment of passport or execution fee.
51.64 Refunds.
51.65 Replacement passports.
51.66 Execution fee not refundable.
22 CFR 50.52 Subpart E -- Limitation on Issuance or Extension of
Passports
51.70 Denial of passports.
51.71 Denial of passports to certain convicted drug traffickers.
51.72 Revocation or restriction of passports.
51.73 Passports invalid for travel into or through restricted areas.
51.74 Special validation of passports for travel to restricted areas.
51.75 Notification of denial or withdrawal of passport.
51.76 Surrender of passport.
22 CFR 50.52 Subpart F -- Procedures for Review of Adverse Action
51.80 Applicability of 51.81 through 51.89.
51.81 Time limits on hearing to review adverse action.
51.82 Notice of hearing.
51.83 Functions of the hearing officer.
51.84 Appearance at hearing.
51.85 Proceedings before the hearing officer.
51.86 Admissibility of evidence.
51.87 Privacy of hearing.
51.88 Transcript of hearing.
51.89 Decision of Assistant Secretary for Consular Affairs; notice
of right to appeal.
Authority: 22 U.S.C. 211a, as amended, 22 U.S.C. 2658, 3926; sec.
122(d)(3), Pub. L. 98-164, 97 Stat. 1017; E.O. 11295, 36 FR 10603; 3
CFR 1966-70 Comp. p. 507; Pub. L. 100-690; sec. 129, Pub. L.
102-138, 105 Stat. 661; sec. 503, Pub. L. 102-140, 105 Stat. 820,
unless otherwise noted.
Source: 31 FR 13540, Oct. 20, 1966, unless otherwise noted.
22 CFR 51.1 Definitions.
The following definitions shall be applicable to this part:
(a) United States means the continental United States, the State of
Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands of the
United States, the Canal Zone, American Samoa, Guam and any other
islands or territory over which the United States exercises
jurisdiction.
(b) Department means the Department of State of the United States of
America.
(c) Secretary means the Secretary of State.
(d) National means a citizen of the United States or a noncitizen
owing permanent allegiance to the United States.
(e) Passport means a travel document issued under the authority of
the Secretary of State attesting to the identity and nationality of the
bearer.
(f) Passport Agent means a person designated by the Department to
accept passport applications.
(g) Passport Issuing Office means the Passport Office, a Passport
Agency, a Passport Agent of the Department, or a Foreign Service Post
authorized to issue passports.
(31 FR 13540, Oct. 20, 1966, as amended at 31 FR 14522, Nov. 11,
1966)
22 CFR 51.1 Subpart A -- General
22 CFR 51.2 Passport issued to nationals only.
(a) A United States passport shall be issued only to a national of
the United States (22 U.S.C. 212).
(b) Unless authorized by the Department no person shall bear more
than one valid or potentially valid U.S. passport at any one time.
(SD-165, 46 FR 2343, Jan. 9, 1981)
22 CFR 51.3 Types of passports.
(a) Regular passport. A regular passport is issued to a national of
the United States proceeding abroad for personal or business reasons.
(b) Official passport. An official passport is issued to an official
or employee of the U.S. Government proceeding abroad in the discharge of
official duties. Where appropriate, dependents of such persons may be
issued official passports.
(c) Diplomatic passport. A diplomatic passport is issued to a
Foreign Service Officer, a person in the diplomatic service or to a
person having diplomatic status either because of the nature of his or
her foreign mission or by reason of the office he or she holds. Where
appropriate, dependents of such persons may be issued diplomatic
passports.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.4 Validity of passports.
(a) Signature of bearer. A passport is valid only when signed by the
bearer in the space designated for his signature.
(b) Period of validity of a regular passport. A regular passport
issued on or after January 1, 1983 to an applicant 18 years of age or
older is valid for 10 years from date of issue unless limited by the
Secretary to a shorter period. A regular passport issued on or after
January 1, 1983 to an applicant under the age of 18 years is valid for 5
years from date of issue unless limited by the Secretary to a shorter
period. An outstanding passport issued before January 1, 1983 remains
valid for 5 years from date of issue unless limited by the Secretary to
a shorter period.
(c) Period of validity of an official passport. An official passport
is normally valid for a period of 5 years from the date of issue as long
as the bearer maintains the official status for which it is issued. It
must be returned to the Department upon the termination of the bearer's
official status.
(d) Period of validity of a diplomatic passport. A diplomatic
passport issued on or after January 1, 1977 is valid for a period of
five (5) years or so long as the bearer maintains his/her diplomatic
status, whichever is shorter. A diplomatic passport which has not
expired must be returned to the Department upon the termination of the
bearer's diplomatic status or at such other time as the Secretary shall
determine. Any outstanding diplomatic passport issued before January 1,
1977 will expire effective December 31, 1977.
(e) Period of a regular passport issued for no fee. A regular
passport for which payment of the fee has been excused is valid for a
period of 5 years from the date of issue unless limited by the Secretary
to a shorter period.
(f) Limitation and extension of validity. The validity period of any
passport may be limited by the Secretary to less than the normal
validity period. Applications for extension of passports limited to
less than the normal full validity period must be made in writing and
must be submitted, with the passport, to a passport issuing Office. In
no event may a passport be extended beyond the normal period of validity
prescribed for such passport by paragraphs (b) through (e) of this
section.
(g) Cancellation of passport endorsed as valid only for travel to
Israel. The validity of any passport which has been issued and endorsed
as valid only for travel to Israel is cancelled effective April 25,
1992. Where it is determined that its continued use is warranted, the
validity of such passport may be renewed or extended for additional
periods of two years upon cancellation of the Israel-only endorsement.
In no event may the validity of such passport be extended beyond the
normal period of validity prescribed for such passport by paragraphs (b)
through (e) of this section.
(Sec. 1, 44 Stat. 887; sec. 1, 41 Stat. 750; sec. 2, 44 Stat. 887;
sec. 4, 63 Stat. 111, as amended (22 U.S.C. 211a, 214, 217a, 2658);
E.O. 11295, 36 FR 10603; 3 CFR 1966-70 Comp. p. 507)
(31 FR 13540, Oct. 20, 1966, as amended at 33 FR 12042, Aug. 24,
1968; 42 FR 17869, Apr. 4, 1977; 47 FR 56329, Dec. 16, 1982)
Effective Date Note: At 57 FR 3282, Jan. 29, 1992, paragraph (g)
was added, effective April 25, 1992.
51.5 (Reserved)
22 CFR 51.6 Mutilation and alteration of passports.
Any passport which has been materially changed in physical appearance
or composition, or which includes unauthorized changes, obliterations,
entries or photographs may be invalidated.
22 CFR 51.7 Verification of passports.
When required by the officials of a foreign government, an American
Foreign Service office may verify a U.S. passport at the request of the
bearer or of the foreign government.
22 CFR 51.8 Cancellation of previously issued passport.
(a) Upon applying for a new passport, an applicant shall submit for
cancellation any previous passport still valid or potentially valid.
(b) If an applicant is unable to produce such a passport for
cancellation, he or she shall submit a signed statement setting forth
the circumstances surrounding the disposition of the passport and if it
is claimed to have been lost, the efforts made to recover it. A
determination will then be made whether to issue a new passport and
whether such passport shall be limited as to place and periods of
validity.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 31 FR 14521, Nov. 11,
1966; 49 FR 16989, Apr. 23, 1984)
22 CFR 51.9 Passport property of the U.S. Government.
A passport shall at all times remain the property of the United
States and shall be returned to the Government upon demand.
22 CFR 51.9 Subpart B -- Application
22 CFR 51.20 General.
An application for a passport or for an amendment of a passport shall
be completed upon such forms as may be prescribed by the Department.
The passport applicant shall truthfully answer all questions, and shall
state each and every material matter of fact, pertaining to his or her
eligibility for a passport. All information and evidence submitted in
connection with an application shall be considered a part thereof.
(22 U.S.C. 2658 and 3926)
(33 FR 12043, Aug. 24, 1968, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.21 Execution of passport application.
(a) First time applicants or persons who have not been issued a
passport within the past twelve years. A person who has never been
issued a passport in his or her own name, or who has not been issued a
passport in his or her own name within 12 years of the date of a new
application, shall appear in person before a person authorized by the
Secretary to give oaths, verify the application by oath or affirmation
before that authorized person, provide two recent photographs, and pay
the established fees.
(b) Persons authorized by the Secretary to give oaths. The following
persons are authorized by the Secretary to give oaths for passport
purposes unless withdrawn by the Secretary in an individual case:
(1) A passport agent;
(2) A clerk of any Federal court;
(3) A clerk of any State court of record or a judge or clerk of any
probate court;
(4) A postal employee designated by the postmaster at a post office
which has been selected to accept passport applications;
(5) A U.S. citizen employee of the Department of Defense designated
by the Secretary of Defense to accept passport applications at a
military installation within the continental United States selected to
accept passport applications;
(6) A diplomatic or consular officer abroad; or
(7) Any other persons specifically designated by the Secretary.
(c) Persons in the United States who have previously been issued a
full validity passport. A person in the United States who has been
issued a passport in his or her own name may obtain a new passport by
filling out and mailing a specially prescribed application together with
his or her previous passport, two recent photographs, and the
established fee to the nearest U.S. Passport Agency provided:
(1) The most recently issued previous passport was issued when the
applicant was 16 years of age or older;
(2) The application is made not more than 12 years following the
issue date of the previous passport;
(3) The most recently issued previous passport is submitted with the
new application.
(d) Persons outside of the United States who have previously been
issued a full validity passport. In a foreign country in which a U.S.
consular district has been designated by the Secretary to receive such
passport applications, a person who has been issued a passport in his or
her own name may obtain a new passport by filling out a specially
prescribed application and sending it (by mail or as prescribed by the
Secretary), together with his or her previous passport, two recent
photographs, and the established fee to the consular office in the
consular district in which he or she is present, provided:
(1) The most recently issued passport was issued when the applicant
was 16 years of age or older;
(2) The application is made not more than 12 years following the
issue date of the previous passport;
(3) The most recently issued previous passport is submitted with the
new application.
(44 FR 19393, Apr. 3, 1979, as amended at SD-165, 46 FR 2343, Jan.
9, 1981; 46 FR 16257, Mar. 12, 1981; 51 FR 20475, June 5, 1986; 55 FR
21538, May 25, 1990)
51.22 (Reserved)
22 CFR 51.23 Name of applicant to be used in passport.
The passport application shall contain the full name of the
applicant. The applicant shall explain any material discrepancies
between the name to be placed in the passport and the name recited in
the evidence of citizenship and identity submitted. The passport
issuing office may require documentary evidence or affidavits of persons
having knowledge of the facts to support the explanation of the
discrepancies.
(SD-165, 46 FR 2343, Jan. 9, 1981)
22 CFR 51.24 Change of name.
An applicant whose name has been changed by court order or decree
shall submit with his or her application a certified copy of the order
or decree. An applicant who has changed his or her name by the adoption
of a new name without formal court proceedings shall submit with his or
her application evidence that he or she has publicly and exclusively
used the adopted name over a long period of time.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.25 Photographs.
(a) Photographs of bearer. The applicant shall submit with his or
her application duplicate photographs of the size specified in the
application. The photographs should be sufficiently recent to be a good
likeness of and satisfactorily identify the applicant. The photographs
shall be signed in the same manner and form as required in the
application.
(b) Photographs of uniformed personnel. Only applicants who are in
the active service of the Armed Forces and proceeding abroad in the
discharge of their duties may submit photographs in the uniform of the
Armed Forces of the United States.
(c) Unacceptable photographs. A photograph with a waxed back or
other coating which lessens adhesiveness is not acceptable. Newspaper
or magazine pictures, snapshots, or full length photographs are not
acceptable. Photographs of persons in the uniform of a civilian
organization, except religious dress, will not generally be accepted.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 43 FR 1791, Jan. 12, 1978;
44 FR 19394, Apr. 3, 1979; SD-165, 46 FR 2343, Jan. 9, 1981; 49 FR
16989, Apr. 23, 1984)
22 CFR 51.26 Incompetents.
A parent, a legal guardian, or a person in loco parentis shall
execute a passport application on behalf of a person declared
incompetent.
22 CFR 51.27 Minors.
(a) Definitions. A minor is an unmarried person under the age of 18
years.
(b) Execution of application by minors. A minor of age 13 years or
above shall execute an application on his or her own behalf unless in
the judgment of the person before whom the application is executed it is
not desirable for the minor to execute his or her own application. In
such case it must be executed by a parent or guardian of the minor, or
by a person in loco parentis. A parent, guardian or person in loco
parentis shall execute the application for minors under the age of 13
years. The passport issuing office may require a minor under the age of
18 years to obtain and submit the written consent of a parent, a legal
guardian or a person in loco parentis to the issuance of the passport.
(c) Objection by parent or guardian in cases not involving the
custody of the minor. At any time prior to the issuance of a passport
to a minor and upon receipt of a written objection from a person having
legal control of the minor, the passport issuing office may disapprove
the minor's application.
(d) Objection by parent or guardian in cases involving the custody of
a minor. When there is controversy concerning the custody of a minor,
the passport issuing office may deny issuance of a passport to the minor
if it receives a court order from a court within the country in which
passport services are sought. The court order must give custody of the
minor to the objecting parent, legal guardian or person in loco parentis
or must forbid the child's departure from the country in which passport
services are sought without the permission of the court.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 43 FR 1791, Jan. 12, 1978;
44 FR 41777, July 18, 1979; 49 FR 16989, Apr. 23, 1984)
22 CFR 51.28 Identity of applicant.
(a) If the applicant is not personally known to the official
receiving the application he or she shall establish his or her identity
by the submission of a previous passport, other identifying documents or
by an identifying witness.
(b) If an applicant submits an application under the provisions of
paragraph (c) of 51.21 he or she must submit a prior passport with his
or her application.
(c) Any official receiving an application for a passport or any
Passport Issuing Office may require such additional evidence of identity
as may be deemed necessary.
(22 U.S.C. 2658 and 3926)
(33 FR 12043, Aug. 24, 1968, as amended at SD-165, 46 FR 2343, Jan.
9, 1981; 49 FR 16989, Apr. 23, 1984)
22 CFR 51.30 Persons unacceptable as witnesses.
The passport issuing office will not accept as witness to a passport
application a person who has received or expects to receive a fee for
his services in connection with executing the application or obtaining
the passport.
22 CFR 51.31 Affidavit of identifying witness.
(a) An identifying witness shall execute an affidavit stating: That
he or she resides at a specific address; that he or she knows or has
reason to believe that the applicant is a citizen of the United States;
the basis of his or her knowledge concerning the applicant; and that
the information set out in his or her affidavit is true to the best of
his or her knowledge and belief.
(b) If the witness has a U.S. passport, he or she shall state the
place of issue and, if possible, the number and approximate date of
issue.
(c) The identifying witness shall subscribe to his or her statement
before the same person who took the passport application.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 31 FR 14522, Nov. 11,
1966; 49 FR 16989, Apr. 23, 1984)
22 CFR 51.32 Amendment of passports.
Applicants for amendment of a passport shall be made on forms
prescribed by the Department.
(SD-165, 46 FR 2343, Jan. 9, 1981)
22 CFR 51.33 Release of passport information.
Information in passport files is privileged and shall not be released
except:
(a) At the request of an applicant or a person acting in his or her
behalf for copies of documents executed or submitted by the applicant.
(b) Pursuant to a subpoena or court order directing the production of
passport records.
(c) At the request of another Government agency.
(d) When expressly authorized by the Secretary.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.33 Subpart C -- Evidence of U.S. Citizenship or Nationality
22 CFR 51.40 Burden of proof.
The applicant has the burden of proving that he or she and any
persons to be included in the passport are nationals of the United
States.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.41 Documentary evidence.
Every application shall be accompanied by evidence of the U.S.
nationality of the applicant and of any other person to be extended
passport services.
22 CFR 51.43 Persons born in the United States applying for a passport
for the first time.
(a) Primary evidence of birth in the United States. A person born in
the United States in a place where official records of birth were kept
at the time of his or her birth shall submit with the application for a
passport a birth certificate under the seal of the official custodian of
birth records. To be acceptable, a certificate must show the full name
of the applicant place and date of birth, and that the record thereof
was recorded at the time of birth or shortly thereafter.
(b) Secondary evidence of birth in the United States. If the
applicant cannot submit primary evidence of birth, he or she shall
submit the best obtainable secondary evidence. If a person was born at
a place in the United States when birth records were filed, he or she
must submit a ''no record'' certification from the official custodian of
such birth records before secondary evidence may be considered. The
passport issuing office will consider, as secondary evidence, baptismal
certificates, certificates of circumcision, or other documentary
evidence created shortly after birth but not more than 5 years after
birth, and/or affidavits of persons having personal knowledge of the
facts of the birth.
(22 U.S.C. 2658 and 3926)
(38 FR 4667, Feb. 20, 1973, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 51.44 Persons born abroad applying for a passport for the first
time.
(a) Naturalization in on right. A person naturalized in his or her
own right as a U.S. citizen shall submit with his or her application his
or her certificate of naturalization.
(b) Derivative citizenship at birth. (1) An applicant who claims to
have derived citizenship by virtue of his or her birth abroad to a U.S.
citizen parent or parents may submit his or her won certificate of
citizenship (Section 1993, Revised Statutes, as amended by Act of May
24, 1934; section 201 of the Nationality Act of 1940; section 301 of
the Immigration and Nationality Act of 1952).
(2) In lieu of a certificate of citizenship, the applicant may submit
evidence of his or her parent(s)' citizenship at the time of his or her
birth, and evidence of his or her and his or her parent(s)' residence
and physical presence in the United States. The passport issuing office
may require the applicant to establish the marriage of his or her
parents and/or grandparents and his or her relationship to them.
(c) Derivative citizenship subsequent to birth. (1) An applicant who
claims U.S. citizenship by virtue of the naturalization of his or her
parent or parents subsequent to his or her birth may submit his or her
own certificate of citizenship.
(2) In lieu of a certificate of citizenship the applicant may submit
the naturalization certificate of the parent or parents through whom he
or she claims U.S. citizenship. In this case, he or she must also show
that he or she resided in the United States during minority as required
by the law under which he or she claims citizenship.
(3) If an applicant claims citizenship through a mother who resumed
citizenship or parent who was repatriated, he or she must submit
evidence thereof. The applicant must establish also that he or she
resided in the United States for the period prescribed by law.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.44 Married Women
22 CFR 51.45 Marriage to an alien prior to March 2, 1907.
A woman citizen of the United States who married an alien prior to
March 2, 1907, did not lose her U.S. citizenship unless she acquired as
a result of the marriage the nationality of her husband and thereafter
took up a permanent residence abroad prior to September 22, 1922.
22 CFR 51.46 Marriage to an alien between March 2, 1907, and September
22, 1922.
(a) A woman citizen of the United States who married an alien between
March 2, 1907, and September 22, 1922, lost her U.S. citizenship,
except as provided in paragraph (b) of this section. At the termination
of the marital relation she could resume her U.S. citizenship, if
abroad, by registering as a U.S. citizen within 1 year with a Consul of
the United States, or by returning to reside in the United States, or,
if resident in the United States, by continuing to reside therein.
(Section 3 of the Act of March 2, 1907.)
(b) A woman citizen of the United States who married an alien between
April 6, 1917, and July 2, 1921, did not lose her citizenship, if the
marriage terminated by death or divorce prior to July 2, 1921, or if her
husband became a U.S. citizen prior to that date. She may establish her
citizenship by proving her U.S. citizenship prior to marriage and the
termination of the marriage or acquisition of U.S. citizenship by her
husband prior to July 2, 1921.
22 CFR 51.47 Marriage prior to September 22, 1922, to an alien who
acquired U.S. citizenship by naturalization prior to September 22, 1922.
A woman citizen of the United States who lost her citizenship by
virtue of her marriage to an alien between March 2, 1907, and September
22, 1922, and who reacquired U.S. citizenship through the naturalization
of her husband prior to September 22, 1922, may establish her U.S.
citizenship by submitting her husband's certificate of naturalization.
22 CFR 51.48 Marriage between September 22, 1922, and March 3, 1931, to
an alien ineligible to citizenship.
A woman citizen of the United States who lost her U.S. citizenship by
virtue of her marriage to an alien ineligible to citizenship between
September 22, 1922, and March 3, 1931, but who reacquired her
citizenship by naturalization in accordance with applicable law shall
submit with her application her certificate of naturalization (sec. 3 of
the Act of Mar. 3, 1931).
22 CFR 51.49 Marriage on on after September 22, 1922, to an alien
eligible to naturalization.
A woman citizen of the United States who on or after September 22,
1922, married an alien eligible for naturalization did not thereby lose
her U.S. citizenship and need only submit evidence of her own
citizenship before a passport issuing office.
22 CFR 51.50 Alien born woman -- marriage to citizen prior to September
22, 1922.
An alien woman who acquired U.S. citzenship by virtue of her marriage
to a citizen of the United States prior to September 22, 1922, shall
submit with her application evidence of her husband's citizenship and of
the marriage. (Section 1994 of the Revised Statutes.)
22 CFR 51.50 Citizenship by Act of Congress or Treaty
22 CFR 51.51 Former nationals of Spain or Denmark.
Former nationals of Spain or Denmark who acquired nationality or
citizenship of the United States under an act of Congress or treaty by
virtue of residence in territory under the sovereignty of the United
States shall submit evidence of their former nationality and of their
residence in such territory.
22 CFR 51.52 Citizenship by birth in territory under sovereignty of the
United States.
A person claiming nationality or citizenship of the United States
under an act of Congress or treaty by virtue of his or her birth in
territory under the sovereignty of the United States shall submit
evidence of his birth in such territory.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.53 Proof of resumption of U.S. citizenship.
An applicant who claims that he or she resumed U.S. citizenship or
was repatriated under any of the nationality laws of the United States
shall submit with the application a certificate of naturalization, a
certificate of repatriation or evidence of the fact that he or she took
an oath of allegiance in accordance with the applicable provisions of
the law. (Act of June 29, 1906, as amended by Act of May 9, 1918; Act
of June 25, 1936, as amended by Act of July 2, 1940, sections 317(b) and
323 of the Nationality Act of 1940 as amended by Acts of April 2, 1942,
and August 7, 1946; Act of August 16, 1951, as amended by section
402(j) of the Immigration and Nationality Act of 1952; sections 324 and
327 of the Immigration and Nationality Act of 1952; Act of July 20,
1954).
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.54 Requirement of additional evidence of U.S. citizenship.
Nothing contained in 51.43 through 51.53 shall prohibit the
Department from requiring an applicant to submit other evidence deemed
necessary to establish his or her U.S. citizenship or nationality.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.55 Return or retention of evidence of citizenship.
The passport issuing office will generally return to the applicant
evidence submitted in connection with an application for passport
facilities. However, the passport issuing office may retain evidence
when it deems necessary.
22 CFR 51.55 Subpart D -- Fees
22 CFR 51.60 Form of remittance.
Passport fees in the United States shall be paid in U.S. currency or
by draft, check, or money order payable to the Department of State or
the Passport Office. Passport fees abroad shall be paid in U.S.
currency, travelers checks, money order, or the equivalent value of the
fees in local currency.
(31 FR 14522, Nov. 11, 1966)
22 CFR 51.61 Statutory fees.
(a) Passport fee. The fee for a U.S. passport is:
(1) $55.00 when the passport issued will be valid or potentially
valid for a period of 10 years from the date of issue; or
(2) $30.00 when the passport issued will be valid or potentially
valid for a period of 5 years from the date of issue; and
(3) The passport fee shall be paid by all applicants except as
provided by section 51.63(a).
(b) Execution fee. Except as provided in section 51.63(b), the fee
for execution of an application for a U.S. passport is $10.00, which
shall be remitted to the U.S. Treasury when an application is executed
before a Federal official, but which may be collected and retained by
any State official before whom an application is executed, or which may
be transferred to the United States Postal Service for each application
accepted by that Service. The execution fee shall be paid only when an
application must be executed under oath or affirmation as prescribed by
51.21(a).
(56 FR 55816, Oct. 30, 1991)
22 CFR 51.62 Regulatory fees.
The Secretary may authorize the collection of additional fees in
connection with passport services. Upon publication of the fees in the
Federal Register, the passport issuing office may collect them in the
same manner as statutory fees.
(56 FR 55816, Oct. 30, 1991)
22 CFR 51.63 Exemption from payment of passport or execution fee.
(a) The following persons are exempt from the payment of passport
fees:
(1) An officer or employee of the U.S. proceeding abroad on official
business, or the members of his or her immediate family authorized to
accompany or reside with him or her abroad. The applicant shall submit
evidence of the official purpose of his or her travel and if applicable
his or her authorization to have dependents accompany or reside with him
or her abroad.
(2) An American sailor who requires a passport in connection with his
or her duties aboard an American flag-vessel.
(3) A widow, child, parent, brother, or a sister of a deceased
American service member proceeding abroad to visit the grave of such
service member.
(4) An employee of the United Seamen's Service who requires a
passport for travel to assume or perform duties thereof. The applicant
shall submit with his or her application a letter from the United
Seamen's Service certifying that he or she is proceeding abroad on
official business to provide facilities and services for U.S. merchant
seamen.
(b) No person described in paragraph (a) (1), (2), (3), or (4) of
this section shall be required to pay an execution fee when his or her
application is executed before a Federal official.
(22 U.S.C. 2658 and 3926)
(33 FR 12043, Aug. 24, 1968, as amended at 37 FR 6053, Mar. 24, 1972;
49 FR 16989, Apr. 23, 1984)
22 CFR 51.64 Refunds.
A collected passport fee shall be refunded:
(a) To any person exempt from the payment of passport fees under
51.63 from whom fees were erroneously collected.
(b) To any person refused a visa within the United States by the
appropriate officer of a foreign government, provided that the unused
passport is returned and a written request for a refund is made within 6
months of the date of issue of the passport.
(c) To any applicant whose passport is not issued.
(d) To the executor or administrator of the estate of the deceased
bearer of an unused passport.
(e) For procedures on refunds of $5.00 or less see 22.6(b) of this
title.
(33 FR 12043, Aug. 24, 1968, as amended at 52 FR 29515, Aug. 10,
1987)
22 CFR 51.65 Replacement passports.
A passport issuing office shall issue a replacement passport without
payment of a fee:
(a) To correct an error or rectify a mistake of the Department.
(b) When exceptional circumstances exist as determined by the
Secretary.
22 CFR 51.66 Execution fee not refundable.
The fee for the execution of a passport application cannot be
refunded.
22 CFR 51.66 Subpart E -- Limitation on Issuance or Extension of Passports
22 CFR 51.70 Denial of passports.
(a) A passport, except for direct return to the United States, shall
not be issued in any case in which the Secretary of State determines or
is informed by competent authority that:
(1) The applicant is the subject of an outstanding Federal warrant of
arrest for a felony, including a warrant issued under the Federal
Fugitive Felon Act (18 U.S.C. 1073); or
(2) The applicant is subject to a criminal court order, condition of
probation, or condition of parole, any of which forbids departure from
the United States and the violation of which could result in the
issuance of a Federal warrant of arrest, including a warrant issued
under the Federal Fugitive Felon Act; or
(3) The applicant is subject to a court order committing him or her
to a mental institution; or
(4) The applicant is the subject of a request for extradition or
provisional arrest for extradition which has been presented to the
government of a foreign country; or
(5) The applicant is the subject of a subpoena issued pursuant to
section 1783 of Title 28, United States Code, in a matter involving
Federal prosecution for, or grand jury investigation of, a felony; or
(6) The applicant has not repaid a loan received from the United
States as prescribed under 1.10 and 71.11 of this chapter; or
(7) The applicant is in default on a loan received from the United
States to effectuate his or her return from a foreign country in the
course of travel abroad.
(b) A passport may be refused in any case in which the Secretary of
State determines or is informed by competent authority that:
(1) The applicant has not repaid a loan received from the United
States to effectuate his or her return from a foreign country in the
course of travel abroad; or
(2) The applicant has been legally declared incompetent unless
accompanied on his or her travel abroad by the guardian or other person
responsible for the national's custody and well being; or
(3) The applicant is under the age of 18 years, unmarried and not in
the military service of the United States unless a person having legal
custody of such national authorizes issuance of the passport and agrees
to reimburse the United States for any monies advanced by the United
States for the minor to return to the United States; or
(4) The Secretary determines that the national's activities abroad
are causing or are likely to cause serious damage to the national
security or the foreign policy of the United States; or
(5) The applicant has been the subject of a prior adverse action
under this section or 51.71 and has not shown that a change in
circumstances since the adverse action warrants issuance of a passport;
or
(6) The applicant is subject to an order of restraint or apprehension
issued by an appropriate officer of the United States Armed Forces
pursuant to Chapter 47 of Title 10 of the United States Code.
(Approved by the Office of Management and Budget under control number
1405-0077)
(54 FR 8531, Mar. 1, 1989)
22 CFR 51.71 Denial of passports to certain convicted drug traffickers.
(a) A passport shall not be issued in any case in which the Secretary
of State determines or is informed by competent authority that the
applicant is subject to imprisonment or supervised release as the result
of a felony conviction for a Federal or state drug offense if the
individual used a U.S. passport or otherwise crossed an international
border in committing the offense, including a felony conviction arising
under:
(1) The Controlled Substances Act (21 U.S.C. 801 et seq.) or the
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.); or
(2) Any Federal law involving controlled substances as defined in
section 802 of the Controlled Substances Act (21 U.S.C. 801 et seq.);
or
(3) The Bank Secrecy Act (31 U.S.C. 5311 et seq.) or the Money
Laundering Act (18 U.S.C. 1956 et seq.) if the Secretary of State is in
receipt of information that supports the determination that the
violation involved is related to ilicit production of or trafficking in
a controlled substance; or
(4) Any state law involving the manufacture, distribution, or
possession of a controlled substance.
(b) A passport may be refused in any case in which the Secretary of
State determines or is informed by competent authority that the
applicant is subject to imprisonment or supervised release as the result
of a misdemeanor conviction of a Federal or state drug offense if the
individual used a U.S. passport or otherwise crossed an international
border in committing the offense, other than a first conviction for
possession of a controlled substance, including a misdemeanor conviction
arising under:
(1) The federal statutes described in 51.71(a); or
(2) Any state law involving the manufacture, distribution, or
possession of a controlled substance.
(c) Notwithstanding paragraphs (a) and (b) of this section the
Secretary of State may issue a passport when the competent authority
confirms, or the Secretary of State otherwise finds, that emergency
circumstances or humanitarian reasons exist.
(Approved by the Office of Management and Budget under control number
1405-0077)
(54 FR 8532, Mar. 1, 1989)
22 CFR 51.72 Revocation or restriction of passports.
A passport may be revoked or restricted or limited where:
(a) The national would not be entitled to issuance of a new passport
under 51.70 or 51.71; or
(b) The passport has been obtained by fraud, or has been fraudulently
altered, or has been fraudulently misused.
(54 FR 8532, Mar. 1, 1989)
22 CFR 51.73 Passports invalid for travel into or through restricted
areas.
(a) Unless specifically validated therefore, U.S. passports shall
cease to be valid for travel into or through a country or area which the
Secretary has determined is:
(1) A country with which the United States is at war, or
(2) A country or area where armed hostilities are in progress; or
(3) A country or area in which there is imminent danger to the public
health or physical safety of United States travelers.
(b) Any determination made under paragraph (a) of this section shall
be published in the Federal Register along with a statement of the
circumstances requiring this restriction.
(c) Unless limited to a shorter period, any such restriction shall
expire at the end of one year from the date of publication of such
notice in the Federal Register, unless extended or sooner revoked by the
Secretary by public notice.
(45 FR 11128, Feb. 20, 1980. Redesignated at 54 FR 8532, Mar. 1,
1989)
22 CFR 51.74 Special validation of passports for travel to restricted
areas.
(a) A United States National wishing a validation of his passport for
travel to, in, or through a restricted country or area may apply for a
special validation to the Office of Passport Services, a passport
agency, or a foreign service post authorized to issue passports. The
application shall be accompanied by evidence that the applicant falls
within the standards set out in paragraph (c) of this section.
(b) The Assistant Secretary of State for Consular Affairs or an
authorized designee of that official shall decide whether or not to
grant a special validation. The special validation shall be granted
only when such action is determined to be in the national interest of
the United States.
(c) An application may be considered if:
(1) The applicant is a professional reporter, the purpose of whose
trip is to obtain, and make available to the public, information about
the restricted area; or
(2) The applicant is a representative of the American Red Cross; or
(3) The applicant establishes that his or her trip is justified by
compelling humanitarian considerations; or
(4) The applicant's request is otherwise in the national interest.
(Sec. 1, 44 Stat. 887, as amended (22 U.S.C. 211a); sec. 4, 63 Stat.
111, as amended (22 U.S.C. 2658); E.O. 11295, 36 FR 10603; 3 CFR
1966-70 Comp., 507; E.O. 12211, 45 FR 26685)
(45 FR 30619, May 9, 1980. Redesignated at 54 FR 8532, Mar. 1, 1989)
22 CFR 51.75 Notification of denial or withdrawal of passport.
Any person whose application for issuance of a passport has been
denied, or who has otherwise been the subject of an adverse action taken
on an individual basis with respect to his or her right to receive or
use a passport shall be entitled to notification in writing of the
adverse action. The notification shall set forth the specific reasons
for the adverse action and the procedures for review available under
51.81 through 51.105.
(22 U.S.C. 2658 and 3926)
(33 FR 12043, Aug. 24, 1968, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.76 Surrender of passport.
The bearer of a passport which is revoked shall surrender it to the
Department or its authorized representative upon demand and upon his or
her refusal to do so such passport may be invalidated by notifying the
bearer in writing of the invalidation.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.76 Subpart F -- Procedures for Review of Adverse Action
22 CFR 51.80 Applicability of 51.81 through 51.89.
The provisions of 51.81 through 51.89 apply to any action of the
Secretary taken on an individual basis in denying, restricting, revoking
or invalidating a passport or in any other way adversely affecting the
ability of a person to receive or use a passport except action taken by
reason of noncitizenship, refusal to grant a discretionary exception
under the emergency or humanitarian relief provisions of 51.71(c) or
refusal to grant a discretionary exception from geographical limitations
of general applicability. The provisions of this subpart shall
constitute the administrative remedies provided by the Department to
persons who are the subject of adverse action under 51.70, 51.71 or
51.72.
(The information collection implications contained in this rule have
been approved by OMB (1405-0077, 6/90))
(54 FR 8532, Mar. 1, 1989)
22 CFR 51.81 Time limits on hearing to review adverse action.
A person who has been the subject of an adverse action with respect
to his or her right to receive or use a passport shall be entitled, upon
request made within 60 days after receipt of notice of such adverse
action, to require the Department or the appropriate Foreign Service
post, as the case may be, to establish the basis for its action in a
proceeding before a hearing officer. If no such request is made within
60 days, the adverse action will be considered final and not subject to
further administrative review. If such request is made within 60 days,
the adverse action shall be automatically vacated unless such proceeding
is initiated by the Department or the appropriate Foreign Service post,
as the case may be, within 60 days after request, or such longer period
as is requested by the person adversely affected and agreed to by the
hearing officer.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.82 Notice of hearing.
The person adversely affected shall receive not less than 5 business
days' notice in writing of the scheduled date and place of the hearing.
22 CFR 51.83 Functions of the hearing officer.
The hearing officer shall act on all requests for review under
51.81. He shall make findings of fact and submit recommendations to the
Administrator of the Bureau of Security and Consular Affairs. In making
his or her findings and recommendations, the hearing officer shall not
consider confidential security information unless that information is
made available to the person adversely affected and is made part of the
record of the hearing.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.84 Appearance at hearing.
The person adversely affected may appear at the hearing in person or
with his or her attorney, or by his or her attorney. The attorney must
possess the qualifications prescribed for practice before the Board of
Appellate Review or be admitted to practice before the courts of the
country in which the hearing is to be held.
(22 U.S.C. 2658 and 3926)
(36 FR 9068, May 19, 1971, as amended at 49 FR 16989, Apr. 23, 1984)
22 CFR 51.85 Proceedings before the hearing officer.
The person adversely affected may appear and testify in his or her
own behalf and may himself, or by his or her attorney, present witnesses
and offer other evidence and make argument. If any witness whom the
person adversely affected wishes to call is unable to appear in person,
the hearing officer may, in his or her discretion, accept an affidavit
by the witness or order evidence to be taken by deposition. The person
adversely affected shall be entitled to be informed of all the evidence
before the hearing officer and of the source of such evidence, and shall
be entitled to confront and cross-examine any adverse witness. The
person shall, upon request by the hearing officer, confirm his or her
oral statements in an affidavit for the record.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.86 Admissibility of evidence.
The person adversely affected and the Department may introduce such
evidence as the hearing officer deems proper. Formal rules of evidence
shall not apply, but reasonable restrictions shall be imposed as to
relevancy, competency and materiality of evidence presented.
22 CFR 51.87 Privacy of hearing.
The hearing shall be private. There shall be present at the hearing
only the person adversely affected, his or her attorney, the hearing
officer, official stenographers, employees of the Department directly
concerned with the presentation of the case, and the witnesses.
Witnesses shall be present at the hearing only while actually giving
testimony or when otherwise directed by the hearing officer.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.88 Transcript of hearing.
A complete verbatim stenographic transcript shall be made of the
hearing by a qualified reporter, and the transcript shall constitute a
permanent part of the record. Upon request, the appellant or his or her
counsel shall be entitled to inspect the complete transcript and to
purchase a copy thereof.
(22 U.S.C. 2658 and 3926)
(31 FR 13540, Oct. 20, 1966, as amended at 49 FR 16989, Apr. 23,
1984)
22 CFR 51.89 Decision of Assistant Secretary for Consular Affairs;
notice of right to appeal.
The person adversely affected shall be promptly notified in writing
of the decision of the Assistant Secretary for Consular Affairs and, if
the decision is adverse to him or her, the notification shall state the
reasons for the decision and inform him or her of the right to appeal
the decision to the Board of Appellate Review (part 7 of this chapter)
within 60 days after receipt of notice of the adverse decision. If no
appeal is made within 60 days, the decision will be considered final and
not subject to further administrative review.
(44 FR 68827, Nov. 30, 1979)
22 CFR 51.89 PART 52 -- MARRIAGES
Sec.
52.1 Celebration of marriage.
52.2 Authentication of marriage and divorce documents.
52.3 Certification as to marriage laws.
Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.
22 CFR 52.1 Celebration of marriage.
Foreign Service officers are forbidden to celebrate marriages.
(31 FR 13546, Oct. 20, 1966)
22 CFR 52.2 Authentication of marriage and divorce documents.
(a) Whenver a consular officer is requested to authenticate the
signature of local authorities on a document of marriage when he was not
a witness to the marriage, he shall include in the body of his
certificate of authentication the qualifying statement, ''For the
contents of the annexed document, the Consulate (General) assumes no
responsibility.''
(b) A consular officer shall include the same statement in
certificates of authentication accompanying decrees of divorce.
(31 FR 13546, Oct. 20, 1966. Redesignated at 51 FR 26247, July 22,
1986)
22 CFR 52.3 Certification as to marriage laws.
Although a consular officer may have knowledge respecting the laws of
marriage, he shall not issue any official certificate with respect to
such laws.
(31 FR 13546, Oct. 20, 1966. Redesignated at 51 FR 26247, July 22,
1986)
22 CFR 52.3 PART 53 -- TRAVEL CONTROL OF CITIZENS OF UNITED STATES IN
TIME OF WAR OR NATIONAL EMERGENCY
Sec.
53.1 Passport requirement.
53.2 Exceptions.
53.3 Attempt of a citizen to enter without a valid passport.
53.4 Optional use of a valid passport.
Authority: Sec. 215, 66 Stat. 190; 8 U.S.C. 1185. Proc. 3004, 18
FR 489; 3 CFR, 1949-1953 Comp.
Source: 31 FR 13546, Oct. 20, 1966, unless otherwise noted.
22 CFR 53.1 Passport requirement.
Under section 215(b) of the Immigration and Nationality Act (8 U.S.C.
1185(b), it is unlawful except as otherwise provided for any citizen of
the United States to depart from or enter, or attempt to depart from or
enter, the United States without a valid passport.
22 CFR 53.2 Exceptions.
A U.S. citizen is not required to bear a valid passport to enter or
depart the United States:
(a) When traveling directly between parts of the United States as
defined in 50.1 of this chapter;
(b) When traveling between the United States and any country,
territory, or island adjacent thereto in North, South or Central America
excluding Cuba; provided, that this exception is not applicable to any
such person when proceeding to or arriving from a place outside the
United States for which a valid passport is required under this part if
such travel is accomplished within 60 days of departure from the United
States via any country or territory in North, South or Central America
or any island adjacent thereto;
(c) When traveling as a bona fide seaman or air crewman who is the
holder of record of a valid merchant mariner identification document or
air crewman identification card;
(d) When traveling as a member of the Armed Forces of the United
States on active duty;
(e) When he is under 21 years of age and is a member of the household
of an official or employee of a foreign government or of the United
Nations and is in possession of or included in a foreign passport;
(f) When he is a child under 12 years of age and is included in the
foreign passport of an alien parent; however, such child will be
required to provide evidence of his U.S. citizenship when entering the
United States;
(g) When the citizen entering the United States presents a card of
identity and registration issued by a consular office abroad to
facilitate travel to the United States; or
(h) When specifically authorized by the Secretary of State through
appropriate official channels to depart from or enter the United States,
as defined in 50.1 of this chapter. The fee for a waiver of the
passport requirement under this section shall be collected in the amount
prescribed in the Schedule of Fees for Consular Services (22 CFR 22.1).
(31 FR 13546, Oct. 20, 1966, as amended at 37 FR 11459, June 8, 1972;
51 FR 26247, July 22, 1986)
22 CFR 53.3 Attempt of a citizen to enter without a valid passport.
The appropriate officer at the port of entry shall report to the
Secretary of State for the purpose of invoking the waiver provisions of
53.2(h), any citizen of the United States who attempts to enter the
United States contrary to the provisions of this part.
22 CFR 53.4 Optional use of a valid passport.
Nothing in this part shall be construed to prevent a citizen from
using a valid passport in a case in which that passport is not required
by this part 53, provided such travel is not otherwise prohibited.
22 CFR 53.4 SUBCHAPTER G -- SOUTH AFRICA AND FAIR LABOR STANDARDS
22 CFR 53.4 PART 60 -- PURPOSE AND SCOPE OF APPLICATION
Sec.
60.1 Purpose.
60.2 Scope of application.
Authority: Sec. 207, 208, 601, 603, and 604, Pub. L. 99-440 (22
U.S.C. 5035 (c)).
22 CFR 60.1 Purpose.
(a) Section 2 of Executive Order 12532 of September 9, 1985 (50 FR
36861) provides that it is the policy of the United States to encourage
all United States firms in South Africa to adhere to certain fair labor
standards. The Comprehensive Anti-Apartheid Act of 1986 (Pub. L.
99-440) (hereinafter referred to as the Act) codifies section 2 of the
Executive Order 12532. Section 207(a) of the Act also provides that
nationals of the United States who employ more than 25 persons in South
Africa shall take the steps necessary to ensure that the fair labor
principles codified in the Code of Conduct (section 208(a) of the Act
and 61.2 of this subchapter) are implemented. In addition, section
207(b) provides that no department of agency of the U.S. may intercede
with any foreign government or foreign national regarding the export
marketing activities in any country of any national of the U.S.
employing more than 25 individuals in South Africa who does not
implement the Code of Conduct. It is the purpose of this subchapter to
implement these requirements of E.O. 12532 and Pub. L. 99-440.
(b) Relation to the Voluntary Signatory Companies System. It has
been the policy of the United States since 1977 to encourage voluntary
adherence to the Statement of Principles for South Africa agreed to by a
majority of U.S. business firms that operate in South Africa. The
requirements of the voluntary code exceed those of the E.O. 12532 in
certain respects, and the voluntary nature of the code has set an
example for all firms in South Africa. The regulations set forth in
this subchapter recognize that some U.S. nationals are not willing to
subscribe to the Statement of Principles for South Africa, and these
regulations do not require firms to subscribe to the voluntary system.
All U.S. nationals described in 62.2 and 63.1 are subject to the
requirements of this subchapter. Such nationals who are bona fide
participants in the Signatory Companies system are exempt from certain
reporting requirements in accordance with 63.1(d).
(50 FR 53309, Dec. 31, 1985, as amended at 51 FR 39655, Oct. 30,
1986; 54 FR 31816, Aug. 2, 1989; 55 FR 9723, Mar. 15, 1990)
22 CFR 60.2 Scope of application.
The requirements of this subchapter are applicable to U.S. nationals
(defined in 61.5) who:
(a) Employ at least 25 individuals in South Africa;
(b) Own or control more than 50 percent of the outstanding voting
securities of a foreign subsidiary or other entity that employs at least
25 individuals in South Africa; or
(c) Control in fact any other foreign entity that employs at least 25
individuals in South Africa. Such control consists of the authority or
ability of the domestic concern to establish or direct the general
policies or day-to-day operations of a foreign subsidiary or entity in
South Africa. Such authority or ability will be presumed under the
circumstances described below, subject to rebuttal by competent evidence
provided to the Department of State at the time of registration (see
62.1):
(1) The domestic concern beneficially owns or controls (whether
directly or indirectly) 25 percent or more of the voting securities of
the foreign subsidiary or entity, if no other person owns or controls
(whether directly or indirectly) an equal or larger percentage;
(2) The foreign subsidiary or entity is operated by the domestic
concern pursuant to the provisions of an exclusive management contract;
(3) A majority of the members of the board of directors of the
foreign subsidiary or entity are also members of the comparable
governing body of the domestic concern;
(4) The domestic concern has the authority to appoint the majority of
the members of the board of directors of the foreign subsidiary or
entity; or
(5) The domestic concern has the authority to appoint the chief
operating officer of the foreign subsidiary or entity.
(50 FR 53309, Dec. 31, 1985, as amended at 51 FR 39656, Oct. 30,
1986; 55 FR 9723, Mar. 15, 1990)
22 CFR 60.2 PART 61 -- DEFINITIONS
Sec.
61.1 Adherence.
61.2 Fair labor standards.
61.3 Office of Southern African Affairs.
61.4 United States.
61.5 U.S. national.
Authority: Sec. 207, 208, 601, 603, and 604, Pub. L. 99-440 (22
U.S.C. 5035 (c)).
Source: 50 FR 53310, Dec. 31, 1985, unless otherwise noted.
22 CFR 61.1 Adherence.
For purposes of this subchapter, adherence means --
(a) Agreeing to implement the principles specified in 61.2 in South
Africa,
(b) Implementing the principles by taking good faith measures with
respect to each principle;
(c) Reporting accurately to the Department of State on the measures
taken to implement the principles in accordance with 63.1.
(50 FR 53310, Dec. 31, 1985, as amended at 51 FR 39656, Oct. 30,
1986; 55 FR 9723, Mar. 15, 1990)
22 CFR 61.2 Fair labor standards.
(a) The fair labor standards referred to in this chapter and which
constitute the Code of Conduct for U.S. nationals in South Africa are as
follows:
(1) Desegregating the races in each employment facility;
(2) Providing equal employment opportunity for all employees without
regard to race or ethnic origin;
(3) Assuring that the pay system in South Africa is applied to all
employees without regard to race or ethnic origin;
(4) Establishing a minimum wage and salary structure based on the
appropriate local minimum economic level which takes into account the
needs of employees and their families;
(5) Increasing by appropriate means the number of persons in
managerial, supervisory, administrative, clerical and technical jobs who
are disadvantaged by the apartheid system for the purpose of
significantly increasing their representation in such jobs;
(6) Taking reasonable steps to improve the quality of employees'
lives outside the work environment with respect to housing,
transportation, schooling, recreation, and health;
(7) Implementing fair labor practices by recognizing the right of all
employees, regardless of racial or other distinctions, to
self-organization and to form, join or assist labor organizations,
freely and without penalty or reprisal, and recognizing the right to
refrain from any such activity.
(b) The supplement to this subchapter contains illustrative examples
of the fair labor practices referred to in this subchapter.
(50 FR 53310, Dec. 31, 1985, as amended at 51 FR 39656, Oct. 30,
1986; 55 FR 9723, Mar. 15, 1990)
22 CFR 61.3 Office of Southern African Affairs.
''Office of Southern African Affairs'' means the Office of Southern
African Affairs, Bureau of African Affairs, Department of State,
Washington, D.C. 20520.
22 CFR 61.4 United States.
''United States,'' when used in the geographical sense, includes the
several States, the Commonwealth of Puerto Rico, the insular possessions
of the United States, and the District of Columbia.
22 CFR 61.5 U.S. national.
For purposes of this subchapter, ''U.S. national'' means:
(a) Citizens or nationals of the United States or permanent residents
of the United States (defined in the Immigration and Nationality Act (8
U.S.C. 1101(a)(20), 60 Stat. 163)); and
(b) Corporations, partnerships, and other business associations
organized under the laws of the United States, any state or territory
thereof, or the District of Columbia.
(50 FR 53310, Dec. 31, 1985, as amended at 51 FR 39656, Oct. 30,
1986)
22 CFR 61.5 PART 62 -- REGISTRATION
Sec.
62.1 Registration.
62.2 Notification of changes in information furnished by registrants.
62.3 Maintenance of records by registrants.
Authority: Sec. 207, 208, 601, 603, and 604, Pub. L. 99-440 (22
U.S.C. 5035 (c)).
Source: 50 FR 53310, Dec. 31, 1985, unless otherwise noted.
22 CFR 62.1 Registration.
Any U.S. national referred to in 60.2 is required to register with
the Department of State and to indicate whether the U.S. national or
entity referred to in 60.2 agrees to implement the principles stated in
61.2. They may also indicate whether they are participants in the
voluntary Sullivan system. Registration can be accomplished by filing a
completed form DSP-95 with the Office of Southern African Affairs. Any
such national who believes that it should not be required or is unable
to report on the fair labor practices of a foreign subsidiary or entity
described in 60.2 (c) of this subchapter should provide a detailed
explanation of the reasons. The explanation should be in the form of a
letter, and should accompany the completed registration form. A
detailed questionnaire on fair labor practices will be provided by the
Office of Southern African Affairs on an annual basis to all
registrants. No fee is required for registration.
22 CFR 62.2 Notification of changes in information furnished by
registrants.
A registered U.S. national must notify the Department of State of any
material changes in the information contained in the registration.
Examples of material changes include the establishment, acquisition, or
sale of a subsidiary or of a foreign affiliate, a merger, a change of
location, or engaging in a different kind of business in South Africa.
Such information should be provided within 60 days from the date of the
material change.
(50 FR 53310, Dec. 31, 1985, as amended at 51 FR 39656, Oct. 30,
1986; 55 FR 9723, Mar. 15, 1990)
22 CFR 62.3 Maintenance of records by registrants.
(a) A U.S. national who is required to register pursuant to 62.1
must maintain records concerning the fair labor practices employed in
South Africa by the U.S. national or any entity referred to in 60.2
effective January 1, 1986. Such records must be maintained for a period
of 3 years.
(b) Records maintained under this section shall be available at all
times for inspection by the Director of the Office of Southern African
Affairs or a person designated by the Director.
(50 FR 53310, Dec. 31, 1985, as amended at 51 FR 39656, Oct. 30,
1986; 55 FR 9723, Mar. 15, 1990)
22 CFR 62.3 PART 63 -- GENERAL POLICIES AND REPORTING REQUIREMENTS
Sec.
63.1 General policies.
63.2 Influencing activities outside the workplace.
63.3 State Department review.
63.4 Waiver.
Authority: Sec. 207, 208, 601, 603, and 604, Pub. L. 99-440 (22
U.S.C. 5035 (c)).
Source: 50 FR 53310, Dec. 31, 1985, unless otherwise noted.
22 CFR 63.1 General policies.
(a) General. Any U.S. national or entity described in 60.2 who does
not adhere to the fair labor standards stated in 61.2 of this
subchapter shall be ineligible to receive the assistance specified in
65.1 (b).
(b) Failure to Register. Any such U.S. national who does not
register with the Department of State prior to February 15, 1986 or
thereafter within sixty days of meeting the criteria for registration,
in accordance with 62.1 shall be ineligible to receive the assistance
specified in 65.1 and shall be subject to the penalties specified in
65.2.
(c) Annual reports. All U.S. nationals subject to the requirements
of this subchapter shall provide an annual report to the Department of
State describing their implementation of the fair labor principles
specified in 61.2, including implementation by any entity described in
60.2. They shall so do by submitting to the Office of Southern African
Affairs of the Department of State not later than February 15 of each
calendar year a completed questionnaire furnished by the Department of
State on an annual basis to all registrants.
(d)(1) Signatory Companies participants. Any U.S. national who is a
bona fide participant in the Signatory Companies reporting and
implementing system is exempt from submitting the questionnaire referred
to in paragraph (c) of this section. ''Bona fide'' participation means
(i) subscribing to the Statement of Principles for South Africa and (ii)
filing the report required by the Signatory Companies monitoring
mechanism with that organization and (iii) receiving a Category I, II,
or IIIA standing. Bona fide participants are deemed to be adhering to
the fair labor standards for purposes of this subchapter. Such U.S.
nationals shall be required to file a letter with the Office of Southern
African Affairs on an annual basis certifying that they are bona fide
participants in the Signatory Companies system. Each such letter shall
be provided not later than February 15 of each calendar year, commencing
on February 15, 1987. Each such letter shall include the following
statement:
I certify that (name of firm) is a bona fide participant in the
Signatory Companies system for fiscal year (insert), and the firm
received a (insert) rating from the Signatory Companies system for that
period.
Any U.S. national participating in the Signatory Companies System who
receives a Category IIIB standing shall not be deemed to be a bona fide
participant pursuant to this subsection and must complete the required
State Department questionnaire, in accordance with 63.1(c).
(2) Any U.S. national who becomes a participant in the Signatory
Companies system during a calendar year and does not receive a rating
during that calendar year shall be deemed to be a bona fide participant
pursuant to 63.1(d)(1) if, not later than February 15 of the following
calendar year, it certifies by letter to the Office of Southern African
Affairs of the Department of State that it is a participant in the
Signatory Companies system.
(50 FR 53310, Dec. 31, 1985, as amended at 54 FR 31816, Aug. 2, 1989)
22 CFR 63.2 Influencing activities outside the workplace.
U.S. nationals referred to in subsection 60.2 are encouraged to take
reasonable measures to extend the scope of their influence on activities
outside the workplace by measures such as:
(a) Supporting the right of all businesses, regardless of the racial
character of their owners or employees, to locate in urban areas;
(b) By influencing other companies in South Africa to follow the
principles specified in 62.2;
(c) By supporting the freedom of mobility of all workers, regardless
of race, to seek employment opportunities wherever they exist, and
(d) By making provision for adequate housing and education for
families of employees within the proximity of the employee's place of
work.
(50 FR 53310, Dec. 31, 1985, as amended at 51 FR 39656, Oct. 30,
1986; 55 FR 9723, Mar. 15, 1990)
22 CFR 63.3 State Department review.
(a) The Office of Southern African Affairs shall review each report
submitted pursuant to 63.1(c) to determine whether the U.S. national
is adhering to the principles stated in 61.2. The Office of Southern
African Affairs may request additional information from the U.S.
national and take any steps that may be deemed necessary to verify the
information submitted.
(b) If the Office of Southern African Affairs concludes that a person
is not taking such steps, it shall afford the person thirty days to
provide additional written information to the Department of State.
(c) If a U.S. national who was a participant in the Signatory
Companies system does not file the reports required by the Signatory
Companies monitoring system or otherwise fails to meet the standards for
continued participation in the Signatory Companies system, the U.S.
national shall immediately inform the Department of State. Such
notification should be provided no later than 30 days after receipt of a
notification from the Signatory Companies system that the person is no
longer a bona fide participant.
(50 FR 53310, Dec. 31, 1985, as amended at 54 FR 31816, Aug. 2, 1989)
22 CFR 63.4 Waiver.
The Director, Office of Southern African Affairs, may make exceptions
to the provisions of this subchapter in cases of exceptional or undue
hardship or when it is otherwise in the interest of the United States
Government.
22 CFR 63.4 PART 64 -- ADMINISTRATIVE PROVISIONS
Sec.
64.1 Administrative procedures.
64.2 Annual report.
64.3 Disclosure of information to the public.
Authority: Sec. 207, 208, 601, 603, and 604, Pub. L. 99-440 (22
U.S.C. 5035 (c)).
Source: 50 FR 53311, Dec. 31, 1985, unless otherwise noted.
22 CFR 64.1 Administrative procedures.
(a) If the Assistant Secretary for African Affairs concludes that a
U.S. national or entity referred to in 60.2 is not adhering to the
principles specified in 61.2, the Office of Southern African Affairs
shall immediately inform the U.S. national concerned and other U.S.
Government agencies by appropriate means.
(b) Any U.S. national who has been the subject of an adverse decision
pursuant to paragraph (a) of this section shall be entitled to file a
written appeal within 30 days of notification of the decision with the
Board of Appellate Review of the Department of State. The requirements
of part 7 of subchapter A of this title of CFR shall be applicable to
proceedings before the Board of Appellate Review.
22 CFR 64.2 Annual report.
The Office of Southern African Affairs shall prepare an annual report
regarding implementation of Part 63 of this subchapter, which shall be
forwarded to other affected U.S. Government agencies and the appropriate
committees of the United States Congress.
22 CFR 64.3 Disclosure of information to the public.
Subchapter R of this title of CFR contains regulations on the
availability to the public of information and records of the Department
of State. The provisions of subchapter R apply to such disclosures by
the Office of Southern African Affairs.
22 CFR 64.3 PART 65 -- NON-ADHERENCE AND PENALTIES
Sec.
65.1 Denial of export marketing support.
65.2 Civil and criminal penalties.
Authority: Sec. 207, 208, 601, 603, and 604, Pub. L. 99-440 (22
U.S.C. 5035 (c)).
22 CFR 65.1 Denial of export marketing support.
(a) In accordance with part 63 of this subchapter, no department or
agency of the United States may intercede with any foreign government or
foreign national regarding export marketing activity in any country of
any U.S. national or entity referred to in 60.2 who does not adhere to
the principles stated in 61.2 with respect to that U.S. national's
operations in South Africa.
(b) For purposes of this section, ''intercede with any foreign
government regarding export marketing activity'' means any contact by
U.S. Government personnel with officials of any foreign government or
foreign national which involves or contemplates any effort to assist in
selling a good, service, or technology in a foreign market. The
following are examples of the activities prohibited:
(1) Assisting non-complying firms by arranging appointments with
foreign government officials or foreign nationals relating to the
pursuit by the firm of a bid, project, or other commercial activity.
(2) Intervening with a foreign government on behalf of a
non-complying firm in pursuit of a bid or project, unless such
intervention is necessary to ensure a foreign government's compliance
with its obligations, if any under the Agreement on Government
Procurement of April 12, 1979 (T.I.A.S. No. 10403);
(3) Assisting non-complying firms in obtaining end-user or other
foreign government certificates or documentation necessary for the
issuance of U.S. export licenses;
(4) Taking any action to assist a non-complying firm in selling its
products, services or technology in a foreign market, including
assistance in making appeals regarding foreign government procedures and
practices adversely affecting the firm's ability to gain access to the
foreign marketplace;
(5) Participation by non-complying firms in Department of Commerce
sponsored trade exhibitions and video catalog shows, trade missions and
certified shows in foreign countries.
(c) The following activities with respect to non-complying firms are
not prohibited pursuant to this section of the Executive Order:
(1) Preparing market research for use by more than one company and
providing general export information;
(2) Distributing generally available informational publications such
as Overseas Business Reports, Foreign Economic Trends, and Business
America; and
(3) Multilateral and bilateral, government-to-government trade
negotiations to resolve trade issues which may affect non-complying
firms.
(50 FR 53311, Dec. 31, 1985, as amended at 51 FR 39656, Oct. 30,
1986; 55 FR 9723, Mar. 15, 1990)
22 CFR 65.2 Civil and criminal penalties.
(a) This subchapter is promulgated pursuant to the authority of the
Comprehensive Anti-Apatheid Act of 1986 (Pub. L. 99-440). Sections 601
and 603 of the Comprehensive Anti-Apatheid Act are applicable to
violations of this subchapter and to any license, ruling, regulation,
order, direction, or instruction issued hereunder. These criminal and
civil penalties are applicable to failures to comply with the
registration and reporting requirements established in this subchapter.
However, they are not applicable to failures to adhere to the principles
stated in 61.2.
(b) Attention is also directed to 18 U.S.C. 1001, which provides:
Whoever, in any manner within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statement or representation or makes
or uses any false writing or document knowing the same to contain any
false, fictitious or fraudulent statement or entry, shall be fined not
more than $10,000 or imprisoned not more than five years, or both.
(c) This section does not apply to the financing of exports by the
Export-Import Bank to South Africa. Such financing continues to be the
subject of the requirements contained in section 2(b)(9) of the
Export-Import Bank Act of 1945, as amended by section 204 of the
Comprehensive Anti-Apartheid Act of 1986, and other requirements of the
latter Act.
(50 FR 53312, Dec. 31, 1985, as amended at 51 FR 39656, Oct. 30,
1986; 54 FR 31816, Aug. 2, 1989)
22 CFR 65.2 Appendix to Subchapter G -- Examples of Fair Labor Practices
22 CFR 65.2 App. to Subch. G
The following are illustrative examples of the fair labor standards
specified in 61.2.
(1) Desegregating the races in each employment facility:
(a) Removing all race designation signs;
(b) Desegregating all eating, medical, recreation, and work
facilities; and
(c) Terminating all regulations which are based on racial
discrimination or preference.
(2) Providing equal employment opportunity for all employees without
regard to race or ethnic origin:
(a) Assuring that any health, accident, pension, or death benefit
plans that are established are nondiscriminatory and open to all
employees without regard to race or ethnic origin; and
(b) Implementing equal and nondiscriminatory terms and conditions of
employment for all employees, abolishing job restrictions and
differential employment criteria which discriminate on the basis of race
or ethnic origin.
(3) Assuring that the pay system is applied to all employees without
regard to race or ethnic origins:
(a) Assuring that any wage and salary structure that is implemented
is applied equally to all employees without regard to race or ethnic
origin;
(b) Eliminating any distinctions between hourly and salaried job
classifications on the basis of race or ethnic origin; and
(c) Eliminating any differences in seniority and in grade benefits
which are based on race or ethnic origin.
(4) Establishing a minimum wage and salary structure based on the
appropriate local minimum economic level which takes into account the
needs of employees and their families:
(a) Offering a minimum wage or salary structure that is 30 percent or
more higher than the most recent University of South Africa Minimum
Living Level for a family of 5 or 6 for the area in which the South
African subsidiary or affiliate operates; or
(b) Offering a minimum wage or salary that is 30 percent or more
higher than the most recent University of Port Elizabeth Household
Subsistence Level for a family of 5 or 6 for the area in which the South
African subsidiary or affiliate operates.
(5) Increasing, by appropriate means, the number of persons in
managerial, supervisory, administrative, clerical, and technical jobs
who are disadvantaged by the apartheid system for the purpose of
significantly increasing their representation in such jobs:
(a) Developing training programs that will prepare substantial
numbers of persons disadvantaged by apartheid for such jobs as soon as
possible, including: (i) Expanding existing programs and forming new
programs to train, upgrade, and improve the skills of all categories of
employees, including establishing and expanding programs to enable
employees to further education and skills at recognized educational
facilities; and (ii) creating on-the-job training programs and
facilities to assist employees to advance to higher paying jobs
requiring greater skills.
(b) Establishing procedures to assess, identify, and actively recruit
employees with potential for further advancement;
(c) Identifying persons disadvantaged by apartheid with significant
management potential and enrolling them in accelerated management
programs; and
(d) Establishing timetables to carry out this principle.
(6) Taking reasonable steps to improve the quality of employee's
lives outside the work environment with respect to housing,
transportation, schooling, recreation, and health:
(a) Providing assistance to employees disadvantaged by apartheid for
housing, health care, transportation, and recreation either through the
provision of facilities or services or providing financial assistance to
employees for such purposes, including the expansion or creation of
in-house medical facilities or other medical programs to improve medical
care for employees disadvantaged by apartheid and their dependents; and
(b) Participating in the development of programs that address the
educational needs of employees, their dependents, and the community.
(7) Implementing fair practices by recognizing the right of all
employees, regardless of racial or other distinctions, to
self-organization and to form, join, or assist labor organizations,
freely and without penalty or reprisal, and recognizing the right to
refrain from any such activity:
(a) Refraining from: (i) interfering with, restraining, or coercing
employees in the exercise of their rights of self-organization under
this paragraph; (ii) dominating or interfering with the formation or
administration of any labor organization or sponsoring, controlling, or
contributing financial or other assistance to it; (iii) encouraging or
discouraging membership in any labor organization by discrimination in
regard to hiring, tenure, promotion, or other conditions of employment;
(iv) discharging or otherwise disciplining or discriminating against any
employee who has exercised any rights of self-organization under this
principle; and (v) refusing to bargain collective with any organization
freely chosen by employees pursuant to this principle.
(b) Allowing employees to exercise rights of self-organization,
including solicitation of fellow employees during nonworking hours,
distribution and posting of union literature by employees during
nonworking hours in nonworking areas, and reasonable access to labor
organization representatives to communicate with employees on the
employer's premises at reasonable times where there are no other
available channels which will enable the labor organization to
communicate with employees through reasonable efforts.
(50 FR 53312, Dec. 31, 1985)
22 CFR 65.2 SUBCHAPTER H -- PROTECTION AND WELFARE OF AMERICANS, THEIR PROPERTY AND ESTATES
22 CFR 65.2 PART 71 -- PROTECTION AND WELFARE OF CITIZENS AND THEIR PROPERTY
22 CFR 65.2 Subpart A -- General Activities
Sec.
71.1 Protection of Americans abroad.
71.2 Requests for naval force in foreign port.
71.3 American claimants to foreign estates and inheritances.
71.4 Real property of deceased American citizens.
71.5 Storage or safekeeping of private property.
71.6 Services for distressed Americans.
71.7 Reports on catastrophes abroad.
71.8 Assistance to American Red Cross.
71.9 Presentation of Americans at foreign courts.
22 CFR 65.2 Subpart B -- Emergency Medical/Dietary Assistance for U.S.
Nationals Incarcerated Abroad
71.10 Emergency medical assistance.
71.11 Short-term full diet program.
71.12 Dietary supplements.
Authority: Sec. 4, 63 Stat. 111, as amended (22 U.S.C. 2658, 2670);
Pub. L. 95-45 (91 Stat. 221).
Source: 22 FR 10841, Dec. 27, 1957, unless otherwise noted.
22 CFR 65.2 Subpart A -- General Activities
22 CFR 71.1 Protection of Americans abroad.
Officers of the Foreign Service shall perform such duties in
connection with the protection of American nationals abroad as may be
imposed upon them by rules and regulations prescribed by the Secretary
of State.
22 CFR 71.2 Requests for naval force in foreign port.
Diplomatic representatives and consular officers shall not request
the presence of a naval force in a foreign port unless a public
emergency so necessitates. The request may be addressed to the officers
in command of the naval force, in which event responsibility of action
rests with them, or it may be addressed to the Department of State. In
either case, the request should contain detailed reasons for its
submission.
22 CFR 71.3 American claimants to foreign estates and inheritances.
Where treaty provisions, local laws, or established usage permit, a
consular officer should protect the interests of American citizens
claiming foreign estates and inheritances.
22 CFR 71.4 Real property of deceased American citizens.
In the absence of special provisions by treaty the devolution and
transfer of real property are covered by the law of the place where the
property is situated. When real property is left by the decedent within
the country where death occurs, or where the decedent was domiciled at
the time of death, the consular officer, or diplomatic officer, if there
be no consular officer, should if feasible informally observe the
proceedings and report to the diplomatic mission or the Department any
apparent irregularity or unnecessary delay in settling the estate.
22 CFR 71.5 Storage or safekeeping of private property.
Except in a public emergency, no officer of the Foreign Service shall
accept private property for storage or safekeeping in the office or for
transmission to some other destination, unless it is property belonging
to the estate of a deceased American citizen, or property over which the
officer has jurisdiction as a result of a catastrophe at sea. In public
emergencies, officers may accept private property for storage and
safekeeping or for transmission to another destination, provided the
owner signs a statement to the effect that the property is being
accepted for deposit at his request, at his own risk, and with full
knowledge that neither the Government of the United States nor any of
its officers assumes responsibility therefor.
22 CFR 71.6 Services for distressed Americans.
Officers of the Foreign Service shall extend every possible aid and
assistance within their power to distressed American citizens within
their districts, but they shall not expend the funds nor pledge the
credit of the Government of the United States for this purpose, except
in the case of American seamen, or except as authorized by the
Department of State.
22 CFR 71.7 Reports on catastrophes abroad.
Whenever a great catastrophe occurs abroad, either on land or on sea,
the officer within whose district the catastrophe takes place or into
whose district the survivors are brought shall report immediately by
telegraph the names of any American citizens who have been killed or
injured and the names of American citizens known to be safe.
22 CFR 71.8 Assistance to American Red Cross.
Officers and employees of the Foreign Service may cooperate fully
with the American Red Cross within their respective districts and
subject to the limitations prescribed in 102.806 (22 CFR, 1947 Supp.).
They shall, however, avoid taking an active part in the solicitation of
memberships or the collection of funds.
22 CFR 71.9 Presentation of Americans at foreign courts.
The chief of the mission concerned may exercise his discretion in the
matter of procuring the presentation of American citizens at the court
of the country to which he is accredited.
22 CFR 71.9 Subpart B -- Emergency Medical/Dietary Assistance for U.S.
Nationals Incarcerated Abroad
Source: 42 FR 60141, Nov. 25, 1977, unless otherwise noted.
22 CFR 71.10 Emergency medical assistance.
(a) Eligibility criteria. A U.S. national incarcerated abroad is
considered eligible to receive funded medical treatment under the
following general criteria:
(1) Adequate treatment cannot or will not be provided by prison
authorities or the host government;
(2) All reasonable attempts to obtain private resources (prisoner's
family, friends, etc.) have failed, or such resources do not exist;
(3) There are medical indications that the emergency medical
assistance is necessary to prevent, or attempt to prevent, the death of
the prisoners, or failure to provide the serviced will cause permanent
disablement.
(b) Services covered. Funds, once approved, may be expended for:
(1) Medical examination, when required;
(2) Emergency treatment;
(3) Non-elective surgery;
(4) Medications and related medical supplies and equipment required
on a routine basis to sustain life;
(5) Preventive or protective medications and medical supplies and
equipment (vaccinations, inoculations, etc.) required to combat epidemic
conditions (general or intramural);
(6) Childbirth attendance, including necessary medical care of
newborn children; and
(7) Within the consular district, transportation for the U.S.
national and attendant(s) designated by incarcerating officials between
the place of incarceration and the place(s) of treatment.
(c) Consular responsibility. As soon as the consular officer is
aware that a U.S. national prisoner in the consular district faces a
medical crisis, the officer should take the following actions, setting
forth the order or priority based on an evaluation of the facts
received:
(1) Make every effort to contact the ill or injured prisoner as soon
as possible;
(2) Take steps to obtain a professional medical diagnosis and
prognosis of the ill or injured prisoner;
(3) Determine as accurately as possible the estimated costs of
recommended treatment or surgery;
(4) Obtain the names and addreses of family or friends who might
serve as a source of private funds for medical services, and attempt to
obtain the necessary funds;
(5) Request the prisoner to execute a promissory note, since funds
expended by the Department to cover medical services normally are on a
reimbursable basis; and
(6) Submit the above information, along with recommendations and
evaluations, to the Department for approval and authorization.
(d) Emergency expenditure authorization. When a medical emergency
prohibits the delay inherent in contacting the Department and receiving
authority to expend funds, the consular officer can expend up to an
amount to be established by the Department without prior Departmental
approval if:
(1) Symptoms determine eligibility for emergency medical treatment;
or
(2) An immediate medical examination is warranted in order to verify
the alleged abuse of a U.S. national prisoner by arresting or confining
authorities; or
(3) Immediate emergency medical treatment or surgery is necessary to
prevent death or permanent disablement, and there is insufficient time
to explore private funds or obtain Department approval; and
(4) A promissory note already has been executed by the prisoner, or
if the circumstances warrant, by the consular officer without recourse.
22 CFR 71.11 Short-term full diet program.
(a) Eligibility criteria. A prisoner is considered eligible for the
short-term full diet program under the following general criteria:
(1) The prisoner is to be or has been held in excess of one day in a
holding jail or other facility;
(2) Incarcerating officials do not provide the prisoner food, and
food is not available from any other sources, including private funding
from family or friends; and
(3) If the funds exceed an amount to be established by the
Department, the prisoner signs a promissory note for funds expended,
since the assistance is on a normally reimbursable basis.
(b) Consular responsibility. As soon as the consular officer is
aware that a U.S. national is incarcerated in a facility wherein food is
not routinely provided, the consular officer should:
(1) Contact the prisoner in accordance with existing procedures;
(2) Determine the normal cost of basic diet and best method of
effecting payment;
(3) Attempt to secure funds from private sources such as family or
friends;
(4) Because funds expended by the Department to cover the short-term
full diet program normally are on a reimbursable basis, have the
prisoner execute a promissory note; and
(5) Contact the Department, providing the above information, for
approval and authorization.
(c) Emergency expenditure authorization. Since an immediate need for
a short-term full diet program often prohibits the delay inherent in
contacting the Department and receiving authority to expend funds, the
consular officer can expend up to an amount to be established by the
Department without prior Departmental approval if the prisoner's case
meets the criteria established in paragraph (a) of this section.
Expenditures above the predetermined limit must receive the prior
approval of the Department.
22 CFR 71.12 Dietary supplements.
(a) Eligibility criteria. A prisoner is considered eligible for the
dietary supplement program under the following general criteria:
(1) An evaluation by a priviate physician, prison doctor, or other
host country medical authority reveals that the prison diet does not
meet the minimum requriements to sustain adequate health; or
(2) If the evaluation in paragraph (a)(1) of this section is not
available, an evaluation by either a regional medical officer or
Departmental medical officer reveals that the prison diet does not
provide the minimum requirements to sustain adequate health.
(b) Consular responsibility. (1) When the consular officer is aware
that the U.S. prisoner's diet does not provide the minimum requirements
to sustain adequate health, the consular officer shall obtain the
necessary dietary supplements and distribute them to the prisoner on a
regular basis.
(2) As soon as the consular officer believes that dietary supplements
are being misused, the consular officer shall suspend provision of the
dietary supplements and report the incident in full to the Department.
22 CFR 71.12 PART 72 -- DEATHS AND ESTATES
22 CFR 71.12 Pt. 72
Sec.
72.1 Consular responsibility.
72.2 Exceptions to consular responsibility.
72.3 Telegraphic notifications of death.
72.4 Normal reporting procedure.
72.5 Reports of presumptive deaths.
72.6 Reports of deaths on the high seas.
72.7 Reports on deceased persons believed to be United States
citizens.
72.8 Disposition of nationality documents.
72.9 Consular responsibility.
72.10 Local burial.
72.11 Cremation.
72.12 Shipment of remains to the United States.
72.13 Remains requiring special handling.
72.14 Fees for disposing of remains.
72.15 Statutory responsibility of consular officer.
72.16 Regulatory responsibility of consular officer.
72.17 Responsibility of consular agents.
72.18 Responsibility if legal representative is present.
72.19 Responsibility if trustee for personal estate is present.
72.20 Responsibility if ''partner in trade'' is present.
72.21 Responsibility if will intended to operate locally exists.
72.22 Responsibility if will intended to operate in the United States
exists.
72.23 Responsibility in case of Department of Defense personnel.
72.24 Responsibility in case of Coast Guard personnel.
72.25 Responsibility in case of citizens dying on the high seas.
72.26 Responsibility in case of seamen.
72.27 Responsibility in case of Foreign Service personnel.
72.28 Effects to be taken into possession.
72.29 Nominal possessions; property not normally taken into
possession.
72.30 Bank deposits in foreign countries.
72.31 Action when immediate possession is impracticable.
72.32 Action when property is in other consular districts.
72.33 Official notification to legal representative.
72.34 (Reserved)
72.35 Procedure for inventorying and appraising effects.
72.36 Preparation and disposition of inventory.
72.37 Disposal of perishable property.
72.38 Collection of debts due deceased.
72.39 Payment of debts owed by deceased.
72.40 Consular officer not to act as administrator of estate.
72.41 Consular officer not to perform legal services or to employ
counsel.
72.42 Consular officer not to assume financial responsibility.
72.43 Conditions under which estate can be released by consular
officer.
72.44 Evidence of claimant's right to estate.
72.45 Shipment of personnel estate to the United States.
72.46 Consular action on disagreements between claimants.
72.47 Consular action on unproved claim to estate.
72.48 Consular action on unclaimed estates.
72.49 Disposition of estate upon departure of responsible officer.
72.50 Final statement of account.
72.51 Preparation and disposition of final statement of account.
72.52 Fee services.
72.53 No-fee services.
72.54 Estates of Government personnel exempt from fee assessments.
72.55 Estates of citizens dying on the high seas exempt from fee
assessments.
Authority: R.S. 1709, as amended, sec. 302, 60 Stat. 1001; 22
U.S.C. 1175, 842.
Source: 22 FR 10841, Dec. 27, 1957, unless otherwise noted.
22 CFR 71.12 Reporting Deaths of United States Citizens
22 CFR 72.1 Consular responsibility.
(a) A consular officer (or in his absence a diplomatic officer) is
responsible for reporting to the Department, to the legal
representative, and to the closest known relative the deaths of all
United States citizens occurring in his consular district except as
otherwise provided in 72.2. In order that he may be informed of such
deaths, the consular officer should enlist the cooperation and
assistance of the local authorities and the members of the American
community.
(b) A consular agent is not authorized to report the deaths of United
States citizens to the Department, to the legal representative and to
the closest known relative. The consular agent should, however,
immediately report the circumstances of the death to his principal
consular officer, who then has the responsibility for reporting in the
manner prescribed in this section through 72.8.
22 CFR 72.2 Exceptions to consular responsibility.
(a) Department of Defense personnel. The Department of Defense is
required to report officially the deaths of its military and civilian
personnel. However, if no representative of the Department of Defense
is present in the consular district where the death occurs, the consular
officer should inform the Mission in the country to which he is assigned
regarding the circumstances, for action by the appropriate attache. In
colonial or trustee areas, or in countries in which no Defense
Department attaches are assigned, the consular officer should telegraph
the particulars of the death to the Department of State, indicating the
maximum length of time before local burial is mandatory, for action by
the Department of Defense. All inquiries concerning the death of any
person falling within this category should be referred to the Department
of Defense, Washington, D.C. 20301. Instructions in this paragraph do
not apply to reporting the deaths of dependents of Department of Defense
personnel or to reporting the deaths of contractor personnel, i.e.,
United States civilians employed in foreign countries by commercial
concerns operating under contract with the Department of Defense, or
their dependents. The deaths of such persons should be reported in the
manner prescribed in 72.4
(b) Coast Guard personnel. The United States Coast Guard is required
to report officially the deaths of its military and civilian personnel.
If death occurs in any country in Europe or the British Isles in which a
Coast Guard detail is not assigned, the consular officer should inform
the Senior Coast Guard Merchant Marine Detail Officer (Europe), London,
England, by telegraph. If the death occurs outside Europe or the
British Isles, the consular officer should telegraph the particulars of
the death to the Department of State, indicating the maximum length of
time before local burial is mandatory, for action by the Coast Guard.
All inquiries concerning the death of Coast Guard personnel should be
referred to the Commandant, United States Coast Guard, Washington, D.C.
20226. The instructions in this section do not apply to reporting the
deaths of dependents of Coast Guard personnel. The deaths of such
persons should be reported in the manner prescribed in 72.4.
22 CFR 72.3 Telegraphic notifications of death.
(a) Use of telegraph. When instructions must be obtained from the
next of kin or other interested person in the United States as to
disposition of the remains, notification of death should be sent by
telegraph to the Department for forwarding. If available to the
consular officer, the name and address of the next of kin or legal
representative ( 72.18) should be included in the message. Consular
officers at posts in Canada and Mexico whose consular districts are
contiguous to the United States may, in their discretion, communicate
directly by telegraph with next of kin or legal representative,
requesting instructions for disposition of the remains.
(b) Content of notification. All such notifications should state the
minimum cost of
(1) Local burial;
(2) Cremation (if applicable);
(3) Embalming, preparing and shipping the remains; and
(4) The maximum period of time before local burial is mandatory.
(c) Payment of charges. The cost of these initial notifications of
death by telegraph is a proper charge against offical funds. Subsequent
telegrams relating to matters for personal decision are normally at the
expense of interested parties.
(22 FR 10841, Dec. 27, 1957, as amended at 30 FR 4412, Apr. 6, 1965)
22 CFR 72.4 Normal reporting procedure.
(a) Purpose and use of Form FS-192. Form FS-192, ''Report of the
Death of an American Citizen'', is an administrative report established
for the purpose of providing essential facts concerning the death of a
United States citizen, and should be used to report the death officially
to the Department, to the legal representative, and to the closest known
relative of the deceased. Notification of death by telegraph does not
eliminate the necessity for reporting the death on Form FS-192.
(b) Information required on Form FS-192. All information called for
under the various headings of Form FS-192 should be supplied in as much
detail as possible. When prolonged delay is experienced in procuring
full data, the consular officer should prepare and distribute a
preliminary report of death on Form FS-192, marking the report
''Preliminary.'' This should be followed by a final and complete report
as soon as full data are available. Expanded comments necessary to
cover special circumstances concerning the death, should appear under
the heading ''Remarks.'' When applicable, statements concerning the
following subjects should also appear under the heading ''Remarks'':
(1) Disposition made of the passport and certificate of
naturalization (see 72.8);
(2) If the deceased is known to have been the recipient of continuing
payments other than salary from the Federal Government (e.g.,
retirement, social security, disability compensation, or veterans
insurance or benefits), indication of the nature of the Payments
received;
(3) If the deceased is a Selective Service registrant of inductible
age, his Selective Service registration number and the number and
address of his Local Board, when known.
(c) Signing and sealing of Form FS-192. All copies of the Form
FS-192 should be signed by the consular officer with his name and
official title typed below, and the consular impression seal should be
impressed on each copy.
(d) Transmission of Form FS-192 to the Department. The original of
Form FS-192 shall be sent to the Department, plus one additional copy
for each agency concerned, if the deceased was:
(1) A recipient of continuing payments other than salary from the
Federal Government; or
(2) An officer or employee of the Federal Government (other than
Department of Defense or Coast Guard); or
(3) A Selective Service registrant of inductible age.
(e) Transmission of form to legal representative and next of kin. A
copy of Form FS-192 should be sent to the legal representative. A copy
should also be sent to the closest known relative of the deceased (or
relatives, if there are two or more persons having equal interests). No
fee is prescribed for sending one copy each of completed Form FS-192 to
the legal representative and to the closest known relative or relatives.
(f) Transmission of form to other consular districts. In the event
that a part of the personal estate of the decedent is known to be in a
consular district other than that in which the death occurs (see
72.32), a copy of Form FS-192 should be sent to the consular officer in
the other district.
(g) Supplying copies of form. Copies of Form FS-192 shall be
supplied by the Department of State or by the Foreign Service post upon
request to any person having valid need therefor. Charges are as
prescribed in the Schedule of Fees ( 21.1 of this chapter) or in the
Tariff of Fees, Foreign Service of the United States of America ( 22.1
of this chapter).
22 CFR 72.5 Reports of presumptive deaths.
(a) Provisional report. Upon the receipt of evidence that a United
States citizen is missing and is presumed to be dead, a report should be
submitted to the Department on Form FS-192, with the title amended to
read ''Report of the Presumptive Death of an American Citizen.'' A
statement should be inserted in the form under the heading ''Cause of
Death'' such as the following: ''Reported missing, believed to be
dead'', giving the source of the information upon which the presumption
is based. A statement should also be included under the heading
''Remarks'' showing the requirements of local law for the establishment
of legal presumption of the death of missing persons; i.e., whether
under local law the legal presumption of death automatically arises at
the expiration of a stipulated lapse of time, or whether formal action
is necessary to obtain legal confirmation of the death of missing
persons.
(b) Final report. In the event that the fact of death is
established, a final complete report shall be submitted to the
Department on Form FS-192 marked ''Final Report,'' in which reference
shall be made, under the heading ''Remarks'', to the provisional report.
If feasible, a ''Final Report'' should be sumbitted at such time as
legal presumption of death arises in accordance with local law.
22 CFR 72.6 Reports of deaths on the high seas.
(a) On vessels of United States registry. When a United States
citizen (not a seaman) dies on board a vessel of the United States
making a voyage from a port in the United States to any foreign port,
the master of the vessel is required to enter the circumstances of the
death in the official log book (46 U.S.C. 201). Customarily, these
circumstances are reported to the consular officer at the first port of
call. On the basis of the log entry, the consular officer should report
the death on Form FS-192 in the manner prescribed for other United
States citizens (see 72.4). A copy of the text of the log entry,
certified by the master, should be retained with the office copy of Form
FS-192.
(b) On vessels of foreign registry. When a United States citizen
dies on a vessel of foreign registry, all information obtained from the
master of the vessel for purposes of reporting the death on Form FS-192,
should be supported by a certified copy of the text of the log entry, if
obtainable.
22 CFR 72.7 Reports on deceased persons believed to be United States
citizens.
(a) Verification of citizenship. As Form FS-192 may be accepted in
courts of law, or considered elsewhere, as evidence of United States
citizenship at the time of death, the consular officer should consult
the regulations describing the evidence of citizenship which is
acceptable for passport and registration purposes and should exercise
due care in determining the citizenship status of the deceased. In
doubtful cases he should transmit the Form FS-192 to the Department
under cover of a despatch stating that the citizenship of the deceased
has not been verified. The Department will then determine whether Form
FS-192 may be released to the legal representative, next of kin, or
other interested person, and will inform the consular officer of
whatever action is taken.
(b) Presumptions as to citizenship status. When the deceased was not
currently documented at a Foreign Service office as a United States
citizen, it must be assumed that, if the deceased was
(1) A native citizen, he had retained United States citizenship at
the time of death, in the absence of evidence of an affirmative act of
expatriation under paragraph 1, section 2 of the act of March 2, 1907,
section 401 of the Nationality Act of 1940, or section 340 or 350 of the
Immigration and Nationality Act;
(2) A naturalized citizen, he had retained United States citizenship
at the time of death, in the absence of evidence that he had lost
nationality of the United States by having a continuous residence for
three years in the territory of a foreign state as provided in section
352(a)(1) of the Immigration and Nationality Act, or by having a
continuous residence for five years in any other foreign state or states
as provided in section 352(a)(2) of the same act, unless there is
evidence that his case comes within one of the exceptions established
under section 353 or 354 of the act. Nationality may also have been
lost under similar provisions contained in section 404 of the
Nationality Act of 1940. The term residence as used herein means the
place of general abode, and residence shall be considered continuous for
the purpose of sections 350 and 352(a) (1) and (2) of the act where
there is a continuity of stay but not necessarily an uninterrupted
physical presence in a foreign state or states or outside the United
States.
22 CFR 72.8 Disposition of nationality documents.
(a) Passport. The passport of a deceased United States citizen
should be canceled by the consular officer and either returned to the
Department or delivered to the person having a legitimate interest
therein. Only a person who is included in the passport may be
considered to have a legitimate interest in it. The date and place of
death should be noted on the passport, and an appropriate notation made
on Form FS-192 (see 72.4(b)(1)).
(b) Certificate of naturalization. The certificate of naturalization
of a deceased United States citizen should be taken up by the consular
officer and forwarded to the Department for transmission to the
Department of Justice; or, if the certificate is claimed by any person
who may have a legitimate interest therein, it should be endorsed by the
consular officer to show the date and place of death of the person to
whom it was originally issued, and should then be delivered to the
person entitled thereto, with appropriate notation made on Form FS-192
(see 72.4(b)(1)).
22 CFR 72.8 Disposition of Remains
22 CFR 72.9 Consular responsibility.
(a) In the absence of relatives or other interested persons, the
consular officer should exert all reasonable effort to carry out the
expressed wishes of the deceased or next of kin as to local burial,
cremation, or shipment of the remains, taking care that the legal
requirements of the country are met. However, the consular officer is
neither authorized nor expected to assume any financial responsibility
for, or to incur any expense in connection with, the disposition of the
remains of deceased persons unless specifically instructed to do so by
the Department. When the next of kin or other interested person cannot
be reached within the period provided by local law for the interment or
preservation of dead bodies and sufficient funds can be realized from
the personal estate of the deceased in the consular officer's
possession, he should arrange for disposal of the reamins locally and
draw funds from the estate to cover the costs (see 72.39; also 72.20
as regards withdrawals from bank accounts). If there are not sufficient
funds in the estate to cover the costs, and funds are unobtainable from
relatives or other interested persons, there may be no alternative but
to accept disposal of the remains by the local authorities in accordance
with local law or regulations. (See also 72.13 for remains requiring
special handling.)
(b) A consular agent may, upon instructions from his principal
consular officer, arrange for the disposition of remains of deceased
United States citizens. His principal consular officer has, in
accordance with this section to 72.14, the responsibility for reporting
to relatives and for complying with the laws of the country in which the
death occurred as well as the requirements of the United States.
22 CFR 72.10 Local burial.
(a) Arrangements for funerals. When the responsibility for local
burial falls on the consular officer (see 72.9), he should endeavor to
carry out the expressed instructions of the deceased or, in the absence
of such instructions, the wishes of the next of kin. Funeral services
should be conducted in accordance with the rites of the religious faith
of the deceased, if known. In each instance the consular officer should
notify known friends of the deceased and other interested persons in the
consular district (such as any American community organizations) of the
date and place of the funeral. When practicable, the services should be
attended by a member of the consular staff.
(b) Report to relatives. The next of kin, or other person whose
wishes have been considered in making the arrangements for local burial,
should be informed by letter of any funeral service that is held.
(c) Erection of markers. If the consular officer is requested to
make arrangements for the erection of markers on graves, he may assist
to the extent of ascertaining any feasible procedure for making local
arrangements and effecting direct remittance for this purpose, and
informing the interested party accordingly.
(d) Upkeep of graves. The maintenance and repair of graves of
persons whose remains are interred abroad, including officers and
employees of the Foreign Service, is not a proper charge against
official funds unless specifically authorized. If the consular officer
is requested to make arrangements for the upkeep of graves, he may
assist to the extent indicated in paragraph (c) of this section with
respect to the erection of markers.
22 CFR 72.11 Cremation.
(a) Arrangements. When cremation is desired, and the facilities are
available, the consular officer should see that all necessary
arrangements are made if compatible with the requirements of the country
in which the death occurred, having in mind particularly such local laws
as may prohibit cremation unless specific request for such disposition
was made in writing by the individual prior to death.
(b) Disposition of ashes. Disposition of the ashes should be made in
accordance with the expressed wishes of the deceased or the next of kin,
or other interested person. If shipment to the United States is
desired, only local health requirements must be met, as there are no
sanitary requirements for entry of ashes into the United States. A
marking should be made on, or a marker firmly affixed to, the container
in which the ashes are shipped. The latter should be accompanied by
(1) An offical death certificate;
(2) Cremation certificate;
(3) Certificate from the crematorium stating that the container holds
only the cremated remains of the deceased; and
(4) A permit to export (if required locally).
22 CFR 72.12 Shipment of remains to the United States.
(a) Arrangements. Whenever the remains of persons who have died
abroad, regardless of the nationality of the deceased, are to be shipped
to the United States, the consular officer should assure himself that
they are properly encased and accompanied by all necessary papers
pertaining to the death, exhumation (if applicable) and preparation for
shipment. The requirements of the country where the death occurred must
be met at all times.
(b) Local documents accompanying remains. The following documents
should accompany the remains for shipment, attached to the consular
mortuary certificate (see paragraph (d) of this section):
(1) A certificate of death issued by the local registrar of deaths,
or similar authority, identifying the remains, showing the place, date
and cause of death as certified by the attending physician, with a
listing of the cause of death conforming as far as practicable with the
terminology of the International List of Causes of Death (needed to
comply with United States Quarantine and interstate requirements);
(2) The affidavit described in paragraph (c) of this section (for
United States Customs), which also would generally include evidence of
embalming, when applicable (needed to comply with the requirments for
interstate shipment);
(3) A ''transit permit'' authorizing export of the body out of the
country, issued by the health authority at the port of embarkation,
stating the date of its issuance, name of deceased, sex, race, age,
cause and date of death (needed to comply with New York health
requirements).
(c) Packing and labeling of casket. In order to facilitate clearance
through United States Customs at the port of entry, the undertaker, or
whatever person is responsible for packing the body for shipment, should
be required to make a sworn declaration -- to be attached to the
consular mortuary certificate (see paragraph (d) of this section) --
that the casket or box contains only the body of the deceased and the
necessary clothing and packing. The sworn declaration should be made,
if practicable, before the consular officer; if not, it should be made
before a qualified local official, whose signature and seal can be
authenticated by the consular officer. The outer box should be labeled
in conformity with port of entry health requirements.
(d) Consular mortuary certificate. A consular mortuary certificate
should be prepared indicating how the case is marked and addressed,
means of transportation to the United States, name of carrier, date and
place of shipment, port of entry and scheduled time of arrival. The
documents listed in paragraph (b) of this section should be ribboned to
the consular mortuary certificate, which should be signed by the
consular officer and sealed with the consular press seal.
22 CFR 72.13 Remains requiring special handling.
(a) Foreign Service personnel. In the absence of relatives or other
interested persons, the consular officer should make all necessary
arrangements for the disposition of the remains of deceased officers and
employees of the Foreign Service according to specific instructions from
the Department.
(b) Personnel of other Government agencies. The consular officer
should extend to other departments or agencies of the United States
Government all appropriate aid, in accordance with specific instructions
received through the Department of State for the disposition of the
remains of an employee who has died while serving in a foreign country.
22 CFR 72.14 Fees for disposing of remains.
No fees are prescribed for services in connection with the
disposition of remains.
22 CFR 72.14 Personal Estates of Deceased Citizens
22 CFR 72.15 Statutory responsibility of consular officer.
Sections 1175-1179 of Title 22 of the United States Code prescribe
the statutory responsibility of officers of the United States Foreign
Service for the personal estates of deceased United States citizens
dying outside the United States.
22 CFR 72.16 Regulatory responsibility of consular officer.
Except as otherwise provided in 72.18 through 72.26, the consular
officer (or in his absence a dipomatic officer) should take possession
and dispose of the personal estates (other than the articles described
in 72.29 and 72.30) of all United States citizens who die within his
jurisdiction or were residing therein at the time of death. This
responsibility should be discharged in accordance with the procedure
prescribed herein so far as that procedure is authorized by:
(a) Treaty provisions; or
(b) The laws or authorities of the country wherein the estate is
located; or
(c) Established usage.
22 CFR 72.17 Responsibility of consular agents.
A consular agent has no statutory authority to take possession and
dispose of the personal estate of a deceased citizen of the United
States, except under the immediate supervision and as the agent of his
principal consular officer. The consular agent, therefore, should
immediately report the circumstances to, and request instructions from,
his principal consular officer, who should assume the responsibility for
taking possession and disposing of the personal estate in accordance
with the regulations in this part.
22 CFR 72.18 Responsibility if legal representative is present.
According to law (22 U.S.C. 1175), the consular officer should not
take possession or dispose of the personal estate of a deceased citizen
who has left a legal representative in the country where the death
occurred or in the country where he was residing at the time of death.
As used here, the term ''legal representative'' means
(a) An executor designated by will or testament;
(b) An administrator appointed in interstate proceedings;
(c) An agent of executor or administrator qualifying by power of
attorney;
(d) A child of legal age;
(e) A parent;
(f) The next of kind (nearest blood relative);
(g) The surviving spouse.
22 CFR 72.19 Responsibility if trustee for personal estate is present.
Likewise, the law (22 U.S.C. 1175) stipulates that the consular
officer should not take possession or dispose of the personal estate of
a deceased citizen who has left in the country where the death occurred,
or in which he was residing at the time of death, a ''trustee by him
appointed.'' The language of the statute includes any person, natural or
juristic, appointed by the decedent in a will, or appointed by a deed to
hold legal title to the personal property for the benefit of a named
beneficiary.
22 CFR 72.20 Responsibility if ''partner in trade'' is present.
Although the law (22 U.S.C. 1175) also relieves the consular officer
of responsibility if a ''partner in trade'' is present, the death of one
member of a partnership automatically dissolves this relationship.
Consequently, the surviving partner or partners have no beneficial
interest as ''partners in trade'' in the personal estate of the
deceased. The duties and responsibilities of provisional conservator of
the personal estate of the deceased cannot therefore be assumed by a
surviving partner, unless he is duly authorized to act as a legal
representative of the deceased. Accordingly, the presence of a former
''partner in trade'' will not necessarily relieve the consular officer
of his responsibility.
22 CFR 72.21 Responsibility if will intended to operate locally exists.
If a will is discovered which is intended to operate locally, and a
local or domiciliary representative named by the decedent qualifies
promptly and takes charge of the personal estate, the consular officer
should assume no responsibility for the estate ( 72.18 and 72.19), and
should not take possession, inventory and dispose of the personal
property and effects or in any way serve as agent for the local or
domiciliary representative. However, if the laws of the country permit
and if the local or domicillary representative does not qualify
promptly, the consular officer may have take protective action in the
interest of the estate to the extent of placing his seal on the personal
property and effects of the decedent, such seal to be broken or removed
only at the request of the local or domiciliary representative.
Furthermore, he should see that the foreign authorities accord due
recognition to the American interests involved and provide proper
protection for the property under local procedures. If prolonged delays
are encountered by the local or domiciliary representative in making
arrangements to take charge of the personal estate, the consular officer
may request that the will be offered for probate, if in his judgement
such action is advisable in the interest of the estate.
22 CFR 72.22 Responsibility if will intended to operate in the United
States exists.
If a will that is intended to operate in the United States is found
among the effects taken into possession by the consular officer, it
should be forwarded immediately to the person or persons designated, in
the event that their whereabouts are known. When this is impossible,
the will should be sent to the appropriate court in the State of the
decedent's domicile. Special directions contained in the will for the
conservation by the consular officer of the personal estate should be
observed by him so far as the laws of the foreign country and these
regulations permit him to act.
22 CFR 72.23 Responsibility in case of Department of Defense personnel.
The Department of Defense is required, in the absence of a legal
representative or other authorized person (see 72.18 and 72.19), to
assume responsibility for the disposition of the personal estates of its
military and civilian personnel who have died abroad. However, when no
representative of the Department of Defense, or other authorized person,
is present at the time of death, the consular officer should take
possession of the personal estate and hold it for disposition in
accordance with instructions from the Department of Defense. No fee
should be charged for services so rendered ( 72.54). Instructions in
this section do not apply to the personal estates of dependents of
Department of Defense personnel; nor to contractor personnel, i.e.,
United States civilians employed in foreign countries by commercial
concerns operating under contract with the Department of Defense, and
their dependents. The estates of such persons should be disposed of in
the manner prescribed by 72.28 to 72.51, if no legal representative is
present.
22 CFR 72.24 Responsibility in case of Coast Guard personnel.
The United States Coast Guard is required, in the absence of a legal
representative or other authorized person (see 72.18 and 72.19), to
assume responsibility for the disposition of the personal estates of its
military and civilian personnel who have died abroad. However, when no
representative of the Coast Guard, or other authorized person is present
at the time of death, the consular officer should take possession of the
personal estate and hold it for disposition in accordance with
instructions from the Commandant, United States Coast Guard. No fees
should be charged for services so rendered ( 72.54). Instructions in
this section do not apply to the personal estates of dependents of Coast
Guard personnel. The estates of such persons should be disposed of in
the manner prescribed by 72.28 to 72.51, if no legal representative is
present.
22 CFR 72.25 Responsibility in case of citizens dying on the high seas.
(a) Consular responsibility not provided by statute. There is no
express provision of law authorizing the consular officer to take
possession and dispose of the personal estate of a citizen of the United
States (not a seaman) who has died on the high seas.
(b) When death occurs on board vessel of United States registry. If
the death occurred on board a vessel of the United States, the master of
the vessel, in the absence of a legal representative or other authorized
person (see 72.18 and 72.19), should be requested to take custody and
return the personal estate to the shipping company in the United States
for forwarding to the legal representative or other authorized person.
(c) When death occurs on board vessel of foreign registry. Death on
board a vessel of foreign registry is considered to have occurred in the
territory of the country of the ship's registry, and the estate laws of
that country are applicable in such cases. In the absence of a legal
representative or other authorized person (see 72.18 and 72.19), the
consular officer should take possession and dispose of the personal
estate, provided that the laws of the country of assignment as well as
the laws of the country of the ship's registry permit. The procedure in
such cases is identical with that followed in the disposition of the
estate of any United States citizen who may have died within the
consular district, except that no fees should be charged for services
rendered ( 72.55).
22 CFR 72.26 Responsibility in case of seamen.
See 85.4 to 85.9 of this chapter for regulations regarding the
disposition of the personal estates of seamen who have died while
serving as members of the crew of a vessel of the United States. The
consular officer should take possession and dispose of the personal
estates of United States citizens who have died while serving as seamen
on board foreign vessels, in the manner prescribed by 72.25(c).
22 CFR 72.27 Responsibility in case of Foreign Service personnel.
In the absence of a legal representative or other authorized person,
the consular officer should take possession and dispose of the personal
estates of deceased Foreign Service personnel in the manner prescribed
by these regulations for other deceased citizens of the United States,
except that no fee should be charged ( 72.54). Travel orders issued by
the Department for shipment of the personal effects of deceased officers
and employees of the Foreign Service constitute only administrative
authorization to transport the effects to a given destination, and in no
way relieve the consular officer of the responsibility for satisfying
himself of a claimant's right to the personal estate prior to shipment (
72.43).
22 CFR 72.28 Effects to be taken into possession.
Although no limitations are placed by law (22 U.S.C. 1175) on the
nature and extent of the personal property that should be taken into
possession by the consular officer in the absence of a legal
representative, experience has shown that the need exists to delimit by
regulation the consular officer's obligations, but not his authority, in
this regard. For example, the consular officer would not normally be
expected to take physical possession of the articles covered in 72.29
unless the items are of such nature and quantity as to be readily
included with the personal effects of the nature described in this
section, or unless such action, when physically possible, is necessary
for the preservation or protection of the property. The consular
officer does, however, have responsibility for taking reasonable steps
to safeguard the articles of the personal estate which he does not take
into possession until disposition can be effected by the legal
representative. The personal effects which the consular officer would
normally take into possession in any event include the following:
(a) Convertible assets, consisting of currency, redeemable
transportation tickets, evidences of debts due and payable in the
country of the officer's assignment, and any other instruments
negotiable by the consular officer;
(b) Perishable property (including most foodstuffs), having
commercial value;
(c) Luggage;
(d) Wearing apparel;
(e) Miscellaneous personal effects;
(f) Jewelry, heirlooms and articles of sentimental value;
(g) Non-negotiable instruments, defined as any document or instrument
not saleable or transferrable by the consular officer, but which
requires either the signature of the decedent or action by, or
endorsement of, his legal representative; and includes transportation
tickets not redeemed or redeemable by the consular officer, traveler's
checks, promissory notes, evidences of debts not due and payable in the
country of the officer's assignment, stocks, bonds or other similar
instruments, bank books, books showing deposits in building and loan
associations, etc. No fee is charged on non-negotiable instruments
taken into possession by the consular officer; see 72.53.
(h) Personal documents and papers.
22 CFR 72.29 Nominal possessions; property not normally taken into
possession.
(a) The taking of articles of personal property into nominal
possession from local officials or other persons, for the explicit
purpose of on-the-spot release to the ''legal representative'' as
defined in 72.18 against the latter's memorandum receipt discharging
the consular officer without further accounting of any responsibility
for articles so transferred by him, shall not be construed as the taking
of custody by the officer. No fee shall be charged for the consular
officer's service in effecting transfer of the articles in the manner
described, provided that he is not required to prepare a consular
inventory, appraise the articles, or list the contents of containers,
and provided further that the effects are not taken in safekeeping upon
official accountability.
(b) The consular officer is not normally expected to take physical
possession, as provisional conservator, of livestock or of articles of
personal property which may be found in residences and places of storage
such as furniture, household effects and furnishings, bulky works of
art, etc., unless the items are of such nature and quantity as to be
readily included with the personal effects ( 72.28), or unless such
action, when physically possible, is necessary for the preservation or
protection of the property, especially where the articles are of
considerable intrinsic value; nor is the consular officer normally
expected to take into physical possession motor vehicles, airplanes, or
powered watercraft. Personal property not taken into possession should,
however, be safeguarded by affixing the consular seal on the premises or
on the property (whichever is appropriate), provided the laws of the
country permit; or by taking reasonable steps to ensure that such items
are placed in safekeeping (at the expense of the estate) until action
can be taken by the legal representative. In order to protect the
interests of the estate, the consular officer should prepare a list, in
quintuplicate, of the articles not taken into physical custody, with
indication of safeguarding measures taken, for submission with the
inventory of effects which must be prepared for all items in his
possession (see 72.53). If the property which normally would be sealed
by the consular officer is not immediately accessible, he should
consider requesting the local authorities to seal the premises, or the
property, or otherwise ensure that the property remains intact until
consular seals can be placed thereon or the property placed in safe
storage, or until the legal representative assumes responsibility
therefor.
22 CFR 72.30 Bank deposits in foreign countries.
The existence of bank deposits when known should be reported to the
legal representative, or other authorized person, who should be informed
of the general procedure required by local law to withdraw such deposits
and whether legal counsel is advisable for that purpose. There is no
express provision of law authorizing the consular officer to withdraw or
otherwise dispose of bank deposits in foreign countries left by deceased
United States citizens. Such deposits, therefore, are considered for
the purpose of the regulations in this part as forming no part of the
personal estate of a decedent, and no Foreign Service fees are
chargeable thereon ( 72.53(c)). In the event that the consular officer
is requested by the legal representative of the estate to withdraw bank
balances on his behalf in order to defray local expenses in connection
with the death and the settlement of the personal estate of the
decedent, he may comply with such request if facilities are provided by
the depository for this purpose. Funds withdrawn should be limited to
the amount necessary to defray the expenses prescribed herein, and fees
should be collected on the amount withdrawn, in accordance with 72.52.
22 CFR 72.31 Action when immediate possession is impracticable.
The law imposes no affirmative obligation upon the consular officer
to travel long distances for the purpose of taking on-the-spot
possession of a personal estate. If occasion to visit the locality
where the death occurred coincides with the need to take action, the
consular officer should avail himself of the occasion to assume custody
of the effects. Normally, however, the consular officer's initial
responsibility in such cases does not extend beyond reasonable efforts
to obtain possession of the estate. He should communicate with the
persons, officials, or organizations having custody of the effects,
requesting that the effects be delivered to him, at the expense of the
estate, for lawful disposition. If the local authorities should decline
to surrender possession to the consular officer in a case where he feels
that his right to take possession is clear, he may refer the matter to
the mission. The consular officer's personal responsibility for any
given item among the personal effects commences only when that item
reaches his hand.
22 CFR 72.32 Action when property is in other consular districts.
If any portion of the personal estate is known to be in another
consular district, mention of this should be made under ''Remarks'' in
the Form FS-192; and a copy of this form should be sent to the consular
officer concerned (see 72.4(f)) who should assume responsibility
independently for taking possession and disposing of these effects in
the manner prescribed herein. If the cash resources of the personal
estate found in one consular district are insufficient to pay the
decedent's debts in that district or in the country of the consular
officer's assignment (see 72.39), the funds found among the personal
effects in the other consular district may be utilized to pay the
decedent's debts in both districts or countries. In such cases, the
consular officer who effects the transfer of the funds should enter the
disbursement in his final statement of account (see 72.51), including
the funds transferred in the gross amount of the estate in his
possession, for the assessment of fees as indicated in 72.52 to 72.55.
The funds transferred should also appear in the final statement of
account of the consular officer receiving them as ''receipts'' and
''disbursements'', stating the source. However, no fee should be
charged on the amount involved (see 72.53(b)).
22 CFR 72.33 Official notification to legal representative.
The preparation and forwarding of Form FS-192 complies with the law
(22 U.S.C. 1176) as regards notification of death to the legal
representative as well as to the Secretary of State. Failing by direct
means to locate a legal representative, the consular officer may, if
required in connection with the settlement of the estate, have recourse
to giving public notice of the death in ''one of the gazettes'' (i.e.
any suitable periodical) in the consular district.
72.34 (Reserved)
22 CFR 72.35 Procedure for inventorying and appraising effects.
After taking possession of the personal estate of a deceased citizen,
the consular officer should immediately inventory and appraise the
personal effects on the basis of the local market value, article by
article, with the assistance of two other persons who should join him in
signing the inventory and in certifying to the accuracy of of the
appraised value of each article inventoried. The inventory should
include only that part of the personal estate actually taken into
possession by the consular officer, regardless of value and the fact
that the death may have occurred in one consular district and a portion
of the personal effects may be found in another consular jurisdiction.
Care should be exercised not to over-estimate the value of the personal
effects, which is the basis on which Foreign Service fees will be
charged ( 72.52). The consular officer may, in his discretion, call upon
professional appraisers at the expense of the estate when warranted by
the nature of the personal effects, i.e., expensive jewelry, furs, etc.
22 CFR 72.36 Preparation and disposition of inventory.
The inventory of effects should be prepared in quintuplicate. All
copies should be signed by the consular officer and the two persons who
assisted in its preparation, and they should be disposed of in the
following manner:
(a) The original retained in the office files;
(b) Two copies, under cover of a despatch, sent to the Department
(one copy for transmission to the General Accounting Office);
(c) One copy to the legal representative (two copies if the next of
kin is the legal representative); and
(d) One copy to the next of kin.
22 CFR 72.37 Disposal of perishable property.
As soon as practicable after the consular officer takes possession,
the perishable portion of the personal estate having commercial value
(including most foodstuffs) should be sold at auction, i.e., to the most
favorable bidder, unless the amount involved does not justify such
expenditure. A newspaper advertisement, written or oral requests for
bids from any interested party, or the services of a professional
auctioneer, may all serve the purpose of insuring an impartial sale.
When the value of the goods or circumstances do not justify such action,
the consular officer may proceed directly with the sale of the goods.
22 CFR 72.38 Collection of debts due deceased.
The consular officer should endeavor to collect only those debts due
the decedent from persons or concerns in the country in which the death
occurred or in the country in which the decedent was residing at the
time of death. Debts so collected are regarded as part of the
decedent's personal estate, and should be included in the gross amount
thereof for the assessment of fees ( 72.52).
22 CFR 72.39 Payment of debts owed by deceased.
(a) When cash resources suffice. The decedent's debts which the
consular officer is reasonably certain are legitimately owed in the
country in which the death occurred, or in the country in which he was
residing at the time of death, including expenses incident to the
disposition of the remains and the personal effects, should be paid out
of the cash resources of the personal estate taken into possession by
the consular officer; namely, money found among the personal effects,
proceeds of the sale of the perishable property, or funds received
through the collection of debts owed the decedent. See 72.32 in regard
to the personal estate in another consular district. Any doubtful claim
against the estate should be referred to the legal representative or
other authorized person for consideration; a claim for damages for a
negligent or wrongful act of the decedent is not a debt to be paid by
the consular officer unless it has been reduced to judgment.
(b) When cash resources are insufficient. In the event that the cash
resources of the personal estate are not sufficient to pay the debts
owing in the country in which the death occurred, or in the country in
which the decedent was residing at the time of death, the consular
officer should endeavor to obtain sufficient funds from the legal
representative, next of kin or other interested person. See 72.32
concerning funds found in another consular district. Fees are not
charged on funds so furnished ( 72.53). If sufficient funds cannot be
assembled from the foregoing sources, the consular officer should sell
at auction (see 72.37), such portion of the personal estate as may be
necessary to pay the debts and expenses. Should occasion arise for sale
of motor vehicles, airplanes or powered watercraft, title to which and
liens upon which in the United States and almost universally are matters
of official record, care should be taken to conform with applicable
registration requirements. Articles which are most marketable, and at
the same time least likely to be desired by the heirs of the decedent,
should be sold first. Jewelry, heirlooms and articles which may have
sentimental value to relatives, regardless of intrinsic value, should be
sold only in case of necessity, and in the order named. Members of the
decedent's family should be notified of the necessity for the sale, if
practicable, in order that they may purchase these articles if they
desire. Proceeds from the sale are regarded as forming part of the
personal estate and should be included in the gross amount thereof for
the assessment of Foreign Service fees (see 72.52).
22 CFR 72.40 Consular officer not to act as administrator of estate.
The consular officer normally should not accept appointment from any
foreign state or from a court in the United States to act as
administrator, or to assist (except as provisional conservator) in
administering the personal estate of a deceased citizen who has died, or
was residing at the time of death, within his consular district.
Neither should he accept appointment as guardian or in any other
fiduciary capacity in the settlement of the estate without:
(a) Having previously obtained the permission of the Secretary of
State to accept such appointment; and
(b) Having assured himself that he has authority so to act under
treaty provisions, local law or usage.
If authorization is received as to appointment in any of the
capacities indicated above, the consular officer will be required to
execute bond, with surety to be approved by the Secretary of State (22
U.S.C. 1178, 1179).
22 CFR 72.41 Consular officer not to perform legal services or to
employ counsel.
Owing to the legal restriction against engaging in foreign business
or professional activity (22 U.S.C. 805), the consular officer shall not
act as attorney or agent for the estate. Neither shall he employ
counsel at the expense of the United States Government, or the estate,
in collecting and disposing of the personal estate of a deceased
citizen. If legal assistance is requested of the consular officer, he
may furnish the names of several attorneys or inform the inquirer as to
sources through which the names of suitable attorneys may be obtained.
22 CFR 72.42 Consular officer not to assume financial responsibility.
The consular officer, as provisional conservator of the personal
estate of a deceased citizen, is neither authorized nor expected to
assume any financial responsibility, not to incur any expense in behalf
of the estate, in excess of funds available for that purpose (see
72.39(a)).
22 CFR 72.43 Conditions under which estate can be released by consular
officer.
The consular officer is responsible to the United States court having
probate jurisdiction over the estate and to the parties in interest for
the personal estate in his possession. He must be prepared to deliver
the estate to, or otherwise dispose of it according to the wishes of,
the legal representative of the decedent upon the presentation of
satisfactory evidence of the latter's right to receive the estate, and
upon the payment of the prescribed Foreign Service fees ( 72.52).
Determination of what constitutes satisfactory evidence of a claimant's
right to the personal estate of a deceased citizen is also the
responsibility of the consular officer. The consular officer,
therefore, must satisfy himself that the evidence which he accepts is
sufficient to relieve him as provisional conservator. Friends,
traveling companions, employers, and business associates are not
competent to relieve the consular officer of the duties and
responsibilities enumerated in the regulations in this part, unless duly
authorized as legal representatives of the estate (see 72.18).
Satisfactory evidence of a claimant's right to the personal estate of a
decedent may be supplied in the manner indicated in 72.44.
22 CFR 72.44 Evidence of claimant's right to estate.
(a) Letters testamentary. A certified copy of the letters
testamentary (an instrument issued by a court of law under which a
person, named as executor by a will, formally takes charge of the estate
and proceeds to carry out the directions in the will) is prima-facie
evidence of the executor's right to take possession of the personal
estate.
(b) Letters of administration. A certified copy of the letters of
administration (an instrument issued by a court of law in intestate
proceedings appointing an administrator to take charge of the property
of a decedent) is prima-facie evidence of the administrator's right to
take possession of the personal estate.
(c) Affidavit of next of kin. When a decedent dies intestate, and
the personal estate consists only of clothing and similiar personal
effects appraised at little or no commercial value, or in cases where
the consular officer is fully satisfied of the legal right of the
claimant and the value of the estate does not warrant the expense of
probate proceedings, he may be justified in considering as satisfactory
evidence an affidavit executed by the decedent's next of kin. The
affidavit of the next of kin should be corroborated by the sworn
statements of two persons acquainted with the affiant and familiar with
the facts of the case. In any event, the consular officer must satisfy
himself of the legal right of the claimant or claimants to the
decedent's effects before releasing the property that he has in his
possession, and he must decide whether an affidavit is acceptable in
lieu of a certified copy of the letters testamentary or the letters of
administration.
22 CFR 72.45 Shipment of personal estate to the United States.
(a) When the consular officer is requested to ship to the United
States the personal estate in his possession, he should deliver it to a
forwarding company selected by the legal representative. Clearance by
Customs in the United States will be facilitated if the personal estate
is accompanied by a consular certificate identifying it and indicating
its nature. If the entire shipment is covered by a single bill of
lading, a certificate attached to the original bill of lading covering
the shipment would be sufficient; otherwise a certificate should
accompany each parcel, box or case.
(b) Extra copies of the bill of lading can serve as a receipt from
the forwarding company, one copy to be attached to the consular
officer's final statement of account ( 72.50), and one copy to be
retained in the office files. If shipment by registered or insured
parcel post, or by other safe means covered by receipt, is possible,
there is no objection to forwarding the estate in this fashion, and
postal or other receipts should be disposed of in the manner described
above, with the original attached to the final statement of account.
The personal effects of Foreign Service personnel (see 72.27) and of
personnel of other Government agencies (except Department of Defense and
Coast Guard personnel) should be consigned to the United States despatch
agent at the port of entry, for forwarding to the legal representative.
22 CFR 72.46 Consular action on disagreements between claimants.
If rival claimants or administrators (administrators may be appointed
in different jurisdictions) demand the personal estate in the consular
officer's possession, he should refuse to deliver the estate until an
agreement has been reached, or judgment rendered, as to which claimant
or administrator should receive it, and the consular officer so informed
in writing. If, after one year, agreement has not been reached between
rival claimants, or judgment rendered, the consular officer should
notify all parties concerned and sell the entire personal estate at
auction in the manner prescribed by 72.37, with the exception of
jewelry, heirlooms, and articles which may have sentimental value to
relatives, regardless of intrinsic value. Should any of the personal
property not have been taken into physical possession previously (see
72.29), the consular officer should take possession of such property
and, after preparing a supplementary inventory in the manner prescribed
in 72.35 and 72.36, include this portion of the estate with that
already in his possession. The proceeds of the sale should be converted
into United States dollars and after payment of local debts ( 72.39) and
collection of the fee prescribed by 72.52, should be transmitted, with
any unsold portion of the estate in the consular officer's possession,
to the Department of State for forwarding to the General Accounting
Office for safekeeping and lawful disposition as conservator of the
estate (22 U.S.C. 1175).
22 CFR 72.47 Consular action on unproved claim to estate.
If the evidence of a claimant's right to receive the estate is not
considered sufficient to relieve the consular officer of his
responsibility as provisional conservator, he may elect a period of
time, not less than one year from the date of the decedent's death,
within which settlement must be effected, in order to obviate
interminable delay in disposing of the estate. In the consular
officer's discretion, he may before releasing the estate, require the
claimant to give bond in an amount fixed by the officer himself to run
for such period of time as he may designate, in order to protect himself
against other possible claims against the estate. If claim to the
estate is still unproved at the expiration of the period set, or the
claimant refuses to meet the conditions of any bond which the consular
officer may require, the consular officer should dispose of the entire
personal estate in the manner prescribed by 72.46.
22 CFR 72.48 Consular action on unclaimed estates.
If, after the expiration of one year from the date of the decedent's
death, a legal representative has not appeared to claim the estate, the
consular officer should dispose of the entire personal estate in the
manner prescribed by 72.46.
22 CFR 72.49 Disposition of estate upon departure of responsible
officer.
(a) Responsibility vested in officer, not post. For the purpose of
the regulations in this part, the consular officer who actually takes
possession and disposes of the personal estate of the deceased, i.e.,
the officer whose signature appears on the inventory of effects, is
considered to be the responsible officer. Consequently, upon his
departure from the post, either on transfer or extended leave, provision
should be made for the disposition of any estate remaining unsettled at
the time of his departure.
(b) Procedure when estate held for less than one year. When the
personal estate is held less than one year, the personal effects in the
departing officer's possession should be turned over to another officer
at the post against a receipt therefor, in triplicate, identifying the
property and cash on hand by reference to the inventory ( 72.35 and
72.36) and the trust fund records of the post.
(c) Procedure when estate held for more than one year. When the
estate has been held for more than one year, the personal effects in the
departing officer's possession should be forwarded to the Department for
transmission to the General Accounting Office in the manner prescribed
by 72.46 and accounted for in accordance with 72.50 unless
circumstances as described in 72.46 and 72.47 warrant continuing
efforts to effect agreement between rival claimants, or to establish an
unproved claim. If the estate is not forwarded to the Department, it
should be turned over to another officer at the post in the same manner
authorized by paragraph (b) of this section.
22 CFR 72.50 Final statement of account.
The consular officer must account directly to the parties in interest
and to the courts of law in estate matters. Consequently, he must keep
an account of receipts and expenditures for the personal estate of the
deceased; i.e., debit all moneys and effects which actually come into
his possession, and credit all payments made on account of the estate.
At such time as the consular officer is ready to deliver the estate, he
should prepare his final statement of account, entering thereon the
balance delivered to the legal representative or person designated by
him (with name and address stipulated) or the balance forwarded to the
Department for transmission to the General Accounting Office.
22 CFR 72.51 Preparation and disposition of final statement of account.
The final statement of account should be prepared in quadruplicate.
All copies should be signed by the accountable officer and the consular
impression seal impressed on each copy, and should be disposed of in the
following manner:
(a) The original should be sent to the legal representative with the
final balance due the estate;
(b) One copy retained in the office files; and
(c) Two copies, under cover of a despatch, submitted to the
Department (one copy for transmission to the General Accounting Office).
In all cases where the residue of the personal estate is to be
transmitted to the General Accounting Office for safekeeping and
disposition (see 72.46 to 72.48), the original should be sent to the
Department, together with the two copies normally submitted, accompanied
by a despatch giving detailed information concerning the efforts made by
the consular officer to deliver the personal effects to a legal
representative or other authorized person. Any information concerning
the last known address of the decedent in the United States should also
be supplied.
22 CFR 72.52 Fee services.
The fee prescribed by Item No. 46 of the Tariff of the United States
Foreign Service Fees constitutes the first charge against the personal
estate and should be assessed on the gross value of the estate in the
consular officer's possession ( 72.38). The consular officer should
collect a fee of $2.00 for each $100 of the total value, or fraction
thereof, for taking into possession as provisional conservator,
inventorying, selling and finally disposing of the personal estate of a
deceased citizen in the manner prescribed by the regulations in this
part. The personal estate should not be released until the fee has been
collected.
22 CFR 72.53 No-fee services.
Fees are not chargeable:
(a) For placing the official seal upon real or personal property or
on the effects of the decedent, or for breaking or removing such seals (
72.29);
(b) On funds furnished by relatives or other interested persons to
cover expenses incident to the death and disposition of the remains, or
for the settlement of the estate ( 72.39(b));
(c) On securities and other instruments not negotiated (or not
negotiable) by the consular officer ( 72.28(g)), or on bank deposits;
(d) For releasing on the spot against memorandum receipt and without
occasion either for safekeeping on official accountability or for
consular inventory and appraisal, to the legal representative or other
authorized person in the country, of personal property taken into
nominal possession for the explicit purposes of transfer of custody (
72.29(a)).
22 CFR 72.54 Estates of Government personnel exempt from fee
assessments.
The personal estates of all officers and employees of the United
States who die abroad while on official duty, including military and
civilian personnel of the Department of Defense and United States Coast
Guard (see 72.23 and 72.24) are exempt from the assessment of any
Foreign Service fees.
22 CFR 72.55 Estates of citizens dying on the high seas exempt from fee
assessments.
The personal estates of all United States citizens who have died on
the high seas are exempt from the assessment of any Foreign Service fees
(see 72.25).
22 CFR 72.55 SUBCHAPTER I -- SHIPPING AND SEAMEN
22 CFR 72.55 PART 81 -- GENERAL
Sec.
81.1 Definitions.
81.2 Status of American public vessels.
81.3 Status of vessels of the United States.
81.4 Status of American undocumented vessels.
81.5 Status of foreign vessels.
81.6 Status as American seamen.
81.7 Status of Puerto Rican and Virgin Island seamen.
81.8 Effect of employment on American public vessels.
81.9 Effect of employment on vessels of the United States.
81.10 Effect of employment on barges, dredges, tugs at foreign ports.
81.11 Effect of employment on American undocumented vessels.
81.12 Effect of employment on foreign vessels.
81.13 Function of the Foreign Service.
81.14 Consular responsibilities to vessels.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10848, Dec. 27, 1957, unless otherwise noted.
22 CFR 81.1 Definitions.
(a) The term vessel includes every description of water craft or
other contrivance used, or capable of being used, as a means of
transportation on water, but does not include seaplanes or other
aircraft.
(b) American vessel means any United States-owned vessel which is not
registered under the laws of a foreign government. American vessels are
classified as American public vessels, vessels of the United States, and
American undocumented vessels.
(c) American public vessel means any vessel owned or operated by a
United States Government department or agency and engaged exclusively in
official business on a non-commercial basis.
(d) Vessel of the United States means any vessel documented under the
laws of the United States.
(e) American undocumented vessel means any American vessel, other
than an American public vessel, which is not documented under the laws
of the United States. River or inter-island craft operating in foreign
waters often fall in this category.
(f) Foreign vessel means any foreign-owned vessel, or any vessel
regardless of ownership, which is documented under the laws of a foreign
country.
(g) Master means any person having command of a vessel.
(h) The term crew of a vessel includes every person employed in any
capacity on a vessel in pursuance of some contract or arrangement with
the owner or master, but excludes laborers or other persons hired
locally for work aboard ship while the vessel is in port.
(i) Seaman means any person employed as a member of the crew of a
vessel.
(j) American seaman means any seaman, regardless of nationality, who
has this status (see 81.6).
(k) Alien seaman means a seaman of foreign nationality who does not
have status as an American seaman.
(l) Passenger vessel means any vessel authorized to carry more than
twelve persons in addition to the master, the crew, or other persons
employed or engaged on board a vessel in any capacity connected with the
business of the vessel.
(m) Classification society means an organization for establishing
safe minimum standards for the strength of the hull and the reliability
of the machinery of a vessel. Classification societies are
quasi-governmental. The American classification society is the American
Bureau of Shipping; the British, Lloyds Register; the French, Bureau
Veritas.
22 CFR 81.2 Status of American public vessels.
American public vessels are usually accorded the courtesies of the
port, and exempted from entry and clearance requirements. If, however,
a United States Government-owned vessel is manned by a merchant crew
(not military or civil-service personnel) and/or carries commercial
cargo or passengers, public vessel exemptions may be denied it by local
authorities.
22 CFR 81.3 Status of vessels of the United States.
Vessels documented under the laws of the United States are entitled
to privileges and subject to the obligations prescribed by the laws of
the United States for merchant vessels. The type of privileges and
obligations appertaining to such vessels depends upon the form and the
purpose of their documentation.
22 CFR 81.4 Status of American undocumented vessels.
American undocumented vessels are not under the jurisdiction of the
United States, and consequently are not subject to the obligations nor
entitled to the protection accorded vessels of the United States abroad.
However, such vessels are entitled to the same degree of protection
accorded any other property abroad owned by United States citizens.
22 CFR 81.5 Status of foreign vessels.
Vessels under foreign registry are of no concern as such to United
States consular officers except in cases where such officers are
authorized to perform protective services for the vessels of a foreign
power.
22 CFR 81.6 Status as American seamen.
(a) Acquisition by United States citizens or nationals. A United
States citizen or national acquires status as an American seaman by
shipping on a vessel of the United States. After three or more years of
relatively continuous service on merchant vessels of the United States,
he may retain his status as an American seaman even if not so engaged
for a period of up to one year.
(b) Acquisition by foreign citizens or nationals. A foreign citizen
or national acquires status as an American seaman only by shipping on a
vessel of the United States in a port of the United States. Having once
acquired this status, he may thereafter reship on any vessel of the
United States either in a foreign port or in a United States port
without losing his status. However, if a foreign citizen or national
having status as an American seaman deserts from a vessel of the United
States except as a result of cruel or unusual treatment, or ships on a
foreign vessel, or definitely abandons his calling as a seaman, he
forfeits this status. A foreign citizen or national who has forfeited
his status as an American seaman can regain such status only by
following the procedure prescribed for acquiring the status originally.
22 CFR 81.7 Status of Puerto Rican and Virgin Island seamen.
Puerto Rican and Virgin Island seamen, who are United States citizens
or nationals, can acquire status as American seamen in accordance with
the provisions of 81.6(a). Those who are not United States citizens or
nationals must acquire this status in the same manner as any other
foreign citizens or nationals (see 81.6(b)).
22 CFR 81.8 Effect of employment on American public vessels.
The master and crew of an American public vessel are usually either
military or civil-service personnel and not American seamen within the
meaning of 81.1(j), except in individual cases where this status has
been previously acquired and is still retained. However, the master and
crew of a vessel, owned or chartered by a United States Government
agency but operated by a private concern on behalf of that agency, who
sign shipping articles before a United States shipping commissioner, are
American seamen within the meaning of 81.1(j), and their service on
such vessels affords them the same rights and privileges as service on
vessels of the United States.
22 CFR 81.9 Effect of employment on vessels of the United States.
The master and crew of a vessel of the United States are subject
during the period of their employment to the jurisdiction of the United
States, and are entitled to the protection of its laws in matters
relating to their employment. Also as a result of this service, they
may acquire and retain status as American seamen, subject to the
conditions set forth in 81.6.
22 CFR 81.10 Effect of employment on barges, dredges, tugs at foreign
ports.
The master and crew of an American documented barge, dredge, or tug,
who sign United States Coast Guard shipping articles before a shipping
commissioner, are American seamen and have the same rights and
privileges as seamen employed on any other vessel of the United States.
22 CFR 81.11 Effect of employment on American undocumented vessels.
The master and crew of an American undocumented vessel are not
subject to the jurisdiction of the United States by reason of their
employment, and are not as a matter of right entitled to the protection
of its laws in questions affecting such employment. However, in the
case of United States citizens employed on such a vessel, the master of
the vessel may request a United States consular officer to ship and
discharge such seamen in foreign ports in accordance with the procedure
followed in the case of seamen on vessels of the United States, and the
consular officer shall accede to such request. A United States consular
officer has no authority over foreign nationals employed on American
undocumented vessels, and consequently cannot ship or discharge such
seamen.
22 CFR 81.12 Effect of employment on foreign vessels.
United States citizens employed on foreign vessels are, during the
period of their employment, subject to the jurisdiction of the country
under whose registry the vessel operates, and have no claim at foreign
ports to the special protection, in matters relating to their
employment, which the laws of the United States afford seamen employed
on vessels of the United States.
22 CFR 81.13 Function of the Foreign Service.
(a) Description. The shipping and seamen function of the Foreign
Service consists of the activities prescribed in Parts 81 through 88 of
this chapter. These activities are for the protection or assistance of
American vessels and American seamen in foreign ports and places.
(b) Post responsibility. Obviously, only Foreign Service seaport
posts are required to perform many of the activities prescribed in this
chapter. Inland posts are not required to perform activities attendant
upon the arrival of a vessel in a foreign port. However, all posts are
responsible for such activities as the relief of stranded American
seamen, intervention on behalf of these seamen with local authorities,
reports on the deaths of American seamen, and the conservation of their
effects, etc. The responsibilities of seaport and inland consular
agencies are similar to those of other seaport and inland Foreign
Service posts, except that, where the settlement of a controversy or the
expenditure of funds is involved in a shipping and seaman case, the
consular agency shall consult with, and act under the direction of, the
supervising Foreign Service post.
(c) Post jurisdiction. Theoretically, the consular district of a
post determines its jurisdiction in a shipping and seaman case.
However, as has been pointed out in paragraph (b) of this section, the
actual responsbilities of posts differ. Also, under the provisions of
the Federal statutes of the United States, even a seaport post is not
required to perform many activities unless the need therefor arises at
the place where the post is located. For example, post employees
assigned to shipping work are not required to leave the immediate locale
of the post to ship or discharge a seaman, but if a vessel is wrecked
along the coast, the post having jurisdiction over the territory where
the wreck occurs is responsible for reporting the wreck and carrying out
the owner's instructions with reference to the conservation of the
wrecked vessel. The question of whether a post should perform shipping
and seamen activities within the consular district, but away from the
actual location of the post is one which must be decided in the light of
the statute and regulations governing the performance of a particular
activity.
(d) Place in post organizational pattern. The shipping and seamen
function is a part of the consular program of a Foreign Service post.
Therefore, the consular section of a post is responsible for carrying
out the activities which comprise this function. This responsibility
must be discharged, however, in accordance with the provisions of
paragraph (e) of this section.
(e) Employee authority and responsibility. Under United States
Federal statutes, in the Foreign Service only United States consular
officers have authority to perform shipping and seamen activities
prescribed by statute. Accordingly, employees assigned to shipping and
seamen work at a Foreign Service post must be commissioned as consular
officers of the United States and accredited in this capacity in the
foreign country of assignment.
22 CFR 81.14 Consular responsibilities to vessels.
(a) American public vessels. Except as set fort in 81.3, the
welfare of the master and crew of an American public vessel as seamen is
not of concern to United States consular officers. Assistance may,
however, be rendered on behalf and under instructions of the Government
agency concerned.
(b) Vessels of the United States. Responsibilities to vessels of the
United States are outlined in Parts 81 through 88 of this chapter and
concern the protection of both ship and crew.
(c) American undocumented vessels. A United States consular officer
may, when requested to do so by the master of an American undocumented
vessel arriving at a foreign port, render services substantially similar
to those rendered masters of vessels of the United States, subject to
the payment of the fees prescribed for such services in the Tariff of
United States Foreign Service Fees (see 81.11).
(d) Foreign vessels. United States consular officers shall furnish
masters of foreign vessels clearing for ports of the United States with
pertinent information concerning documents required by such vessels for
entry, and shall perform such services in connection therewith as are
prescribed by applicable law and by such administrative instructions as
may from time to time be issued.
22 CFR 81.14 PART 82 -- VESSELS OF THE UNITED STATES IN FOREIGN PORTS
Sec.
82.1 Definition of ship's papers.
82.2 Acceptance and receipting for ship's papers.
82.3 Return of papers to master.
82.4 Withholding of papers.
82.5 Disposition of papers left at consulate.
82.6 Report regarding failure of master to deposit papers.
82.7 Prosecution of master for failure to deposit papers.
82.8 Register of Shipping and Seamen.
82.9 Crew mail.
82.11 Pilot charts and navigation notices.
82.12 Marine notes of protest.
82.13 Violations of the International Load-Line Convention.
82.14 Certificates under International Convention for the Safety of
Life at Sea.
82.15 Shipment of seamen.
82.16 Discharge of seamen.
82.17 Consular responsibilities for payment of wages.
82.18 Medium for payment of wages.
82.19 Desertions and failure to rejoin.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10850, Dec. 27, 1957, unless otherwise noted.
22 CFR 82.1 Definition of ship's papers.
The term ''ship's papers'' includes the marine document of a vessel
of the United States, its shipping agreement, and its crew list.
''Marine document'' means the certificate issued each vessel of the
United States, evidencing its documentation under the laws of the United
States.
22 CFR 82.2 Acceptance and receipting for ship's papers.
A consular officer shall accept the ship's papers proffered him by
the master of a vessel of the United States, or his duly qualified
subordinate, and, when requested to do so, shall give a receipt
therefor. This receipt need not be returned to the consular officer.
22 CFR 82.3 Return of papers to master.
Except as provided in 82.4, the consular officer shall return the
ship's papers to the master of the vessel, provided the master has first
fulfilled the following conditions:
(a) Produced a clearance of the vessel issued by the proper officer
in the port;
(b) Complied with the provisions of law relating to the discharge of
seamen;
(c) Paid to the consular officer arrears in wages and extra wages due
seamen discharged at the port or issued wage vouchers to such seamen;
(d) Paid such fees and demands as are collectible under the law and
the regulations in this part.
(R.S. 1718, 4309; 22 U.S.C. 1185, 46 U.S.C. 854)
22 CFR 82.4 Withholding of papers.
The consular officer shall withhold the ship's papers when the ship
is proceeding on a voyage or carrying cargo contrary to the laws or
regulations of the United States. In the event of such withholding or
contemplated withholding, the consular officer shall immediately
telegraph the Department of State for instructions.
22 CFR 82.5 Disposition of papers left at consulate.
When the master of a vessel of the United States departs from a
foreign seaport, leaving the ship's papers in the possession of the
consular officer, that officer may transmit the papers with covering
report to the United States consular officer at the ship's next foreign
port of call if circumstances make this action advisable and if no valid
reason exists for withholding the papers from the master. When return
of the ship's papers to the master or some other duly qualified officer
is impossible, or when the ship is enroute to the United States, the
consular officer shall transmit the papers to the Department of State
immediately, under cover of a despatch, giving a detailed statement of
the facts in the case.
22 CFR 82.6 Report regarding failure of master to deposit papers.
If the master of a vessel of the United States persists in refusing
to deposit his papers with the consular officer, or departs with his
vessel without so doing and without reasonable cause for such failure,
the consular officer shall execute a certificate for use in prosecuting
the master for his failure to deposit the ship's papers.
22 CFR 82.7 Prosecution of master for failure to deposit papers.
The Department of Justice will conduct the prosecution of the master
of the vessel in the name of the consular officer, who will not appear
personally. Failure of the consular officer to notify the master of the
vessel of the statutory provisions of law about the deposit of ship's
papers will not serve as a defense in such a case.
22 CFR 82.8 Register of Shipping and Seamen.
Each Foreign Service seaport post, including each seaport consular
agency, shall keep a complete record of transactions relating to vessels
which deposit their ship's papers at the office of the post. This
record shall be known as the ''Register of Shipping and Seamen'' and
shall be maintained on Forms FS-281a, FS-281b and FS-281c.
22 CFR 82.9 Crew mail.
A Foreign Service post may accept mail addressed to seamen on vessels
of the United States and either hold or forward it according to the
circumstances. A crew member may call for his mail, or a ship's
officer, when depositing the ship's papers, may pick up mail for crew.
Mail may be forwarded as instructed in the Register of Shipping and
Seamen. The Foreign Service post shall not use public funds to pay
postage or customs charges levied against personal mail or packages of
seamen.
22 CFR 82.11 Pilot charts and navigation notices.
United States consular officers shall post the pilot charts and
notices to mariners published by the United States Naval Oceanographic
Office, in a conspicuous place in the Foreign Service offices, and shall
call the attention of shipmasters to such charts and notices.
22 CFR 82.12 Marine notes of protest.
(a) Necessity for personal appearance of master. The taking of the
marine note of protest by a United States consular officer is a service
for the operators of a vessel. The consular officer shall, therefore,
require the master of the vessel to make the protest in person before
him, unless the operators have furnished the consular officer with a
written statement authorizing the making of the protest by an officer of
the vessel other than the master. Under no circumstances shall a
consular officer waive personal appearance by the master without the
specific authorization of the ship's operators.
(b) Form used. A simple not of protest and all certified copies
thereof shall be executed on the face of Form FS-281d. An extended
protest and all certified copies thereof shall be executed on the
reverse side of Form FS-281d.
(c) Execution of forms. A note of protest shall be prepared in an
original and as many carbon copies as necessary to permit furnishing the
required number of certified copies. The form should be typed. The
original shall be signed, sealed with the consular impression seal, and
filed in the Register of Shipping and Seamen binder with other forms
relating to the particular entry and clearance of the vessel concerned.
The carbon copies of the protest shall be certified and furnished to the
master of the vessel for his use and the use of other officers and the
owner of the vessel. Consular officers shall not certify any carbon
copies which are illegible.
(d) Fees charged. No fees shall be charged for the filing of a
marine note of protest by the master of a vessel of the United States.
In cases of undocumented American vessels or of foreign vessels, fees in
accordance with items 30 and 31 of the Tariff of Fees shall be charged.
In those cases where fees are chargeable for this service, consular
officers shall not charge an additional fee for certified copies of a
marine protest issued at the same time as the original protest but shall
charge the fee indicated in item 75 of the Tariff of Fees for copies
issued subsequent to the execution of the original protest. The fees
for additional copies shall be applicable to American ship operators and
agents as well as to foreign shipping interests.
22 CFR 82.13 Violations of the International Load-Line Convention.
If a vessel of the United States in a foreign port is alleged to be
loaded deeper than the draft permissible under the International
Load-Line Convention, 1930 (Treaty Series 858), the enforcement
authorities of the port are required to notify the consular officer as
soon as possible. If the master of the vessel contends that his ship is
not violating the Convention, the consular officer shall immediately
investigate the matter, and if it appears that the charge is unfounded,
he shall protest to the appropriate authorities. A report of every
violation charge shall be made to the Department for the information of
the United States Coast Guard.
22 CFR 82.14 Certificates under International Convention for the Safety
of Life at Sea.
(a) Issuance of certificates. International Certificates are issued
to United States vessels by the United States Coast Guard after
appropriate inspections have been made by the Federal Communications
Commission or the Coast Guard, or both, in ports of the United States.
These certificates are valid for one year with the exception of the
Safety Equipment Certificate which is valid for two years.
(b) Extension or reissue of certificates. When an International
Certificate, issued under the terms of the International Convention for
the Safety of Life at Sea, 1948, to a vessel of the United States,
expires before or at the time the vessel reaches a foreign port, or will
expire before the vessel reaches a port of the United States, it may be
extended by the consular officer or a new certificate may be issued by
authorities of a foreign Government which is a part to the Convention,
according to the preference of the master. The request must come from
the master. A request or preference expressed by the agent of a United
States vessel should not be honored unless the agent is acting at the
master's specific request.
(c) Extension procedure abroad. At the instance of the master of a
vessel of the United States, a United States consular officer at any
foreign port may extend a Convention Certificate in accordance with the
provisions of Chapter I, Regulation 13 (b) and (c) of the Convention, if
it appears proper and reasonable to do so. An inspection and survey is
not a prerequisite for an extension, but the master of the vessel and
the chief radio officer in the case of a cargo ship, or the master of
the vessel, the chief engineer, and the chief radio officer in the case
of a passenger ship, shall be required to furnish an affidavit that to
the best of their knowledge and belief, the vessel complies with the
applicable requirements of the Convention. The consular officer shall
extend the certificate by typing an endorsement. The consular officer
shall sign the endorsement and shall seal the document with the consular
impression seal.
(d) Issuance procedure abroad. Upon the receipt, by a consular
officer at a foreign port within the allegiance of a government which is
a party to the Safety Convention, of a request from the master of a
cargo vessel that a Safety Radiotelegraphy Certificate or a Safety
Equipment Certificate be issued to his vessel, the officer shall, in
accordance with the provisions of Chapter I, Regulation 12 of the
Convention, request the appropriate local government authorities to
inspect the vessel, for compliance with the requirements of the
Convention and to issue, under the government's own responsibility, a
Safety Radiotelegraphy Certificate or a Safety Equipment Certificate or
both to the vessel. The circumstances under which a passenger vessel
would require a survey and the issuance of a Safety Certificate while in
a foreign port are not likely to occur. Should such a situation arise,
advice shall be requested from the Department, which will confer with
the Coast Guard and the Federal Communications Commission and issue
instructions to the consular officer. A certificate issued by a
government of a country not a party to the Convention has no validity
and consular officers at a foreign port within the allegiance of such a
country may not request that government to issue any certificate
required under the convention.
(e) Violations of the International Convention for the Safety of Life
at Sea, 1948. While the possession of the appropriate International
Certificate (s) is evidence that the vessel was complying with the
applicable provisions of the Convention at the time the certificate was
issued, authorities of a foreign government at a port in which the
vessel is, have a right to inspect the vessel for the purpose of
determining that it is still complying substantially with these
provisions. Should this inspection lead to a requirement being imposed
upon the vessel, Chapter I, Regulation 18 of the Convention requires
that the consular officer be informed in writing forthwith of all the
circumstances. If the master protests the requirement, the consular
officer shall investigate the situation and, if the evidence warrants,
shall make representations to the proper authorities. It is not
expected that in matters of judgement the decisions of the local
authorities shall be questioned (e.g. whether an item of required
equipment is worn out or not). But where quantitative standards are
prescribed by the Convention (e.g., number of life buoys), a greater
number should not be required. Where a requirement is not protested as
to justification but will involve delay to the vessel, the consular
officer may be able to obtain permission for the ship to depart if the
master gives assurance that the deficiency will be made good at the next
port of call.
22 CFR 82.15 Shipment of seamen.
When a seaman is shipped before a United States consular officer at a
foreign port, the consular officer shall see that the seaman understands
all the terms of the contract and the exact nature of the work for which
he is engaged. When the shipment of a seaman at another port is
reported to a consular officer for certification, the officer shall,
before so certifying, make sure that the seaman understands and has
signed the shipping agreement as required.
22 CFR 82.16 Discharge of seamen.
(a) The master of a vessel of the United States cannot lawfully
discharge a seaman in a foreign port without the intervention of the
United States consular officer if the seaman signed the shipping
agreement before a United States Shipping Commissioner or consular
officer; and it is not material in such case that the discharge is made
with the seaman's consent or that he has been guilty of misconduct, or
is not a citizen of the United States. (7 Op. Att. Gen. 349.)
(b) A United States consular officer is authorized to discharge a
seaman upon the application of the master of any vessel of the United
States or upon the application of any seaman for his own discharge, if
such officer is satisfied that the seaman has completed his shipping
agreement or is entitled to his discharge under any act of Congress or
according to the general principles or usages of maritime law as
recognized in the United States. When a request is made for the
discharge of a seaman, a consular officer shall inquire carefully into
the facts and circumstances, and shall satisfy himself that good and
substantial reasons exist for a discharge before granting the
application. The seaman must be physically present to be discharged.
(R.S. 4580, as amended; 46 U.S.C. 682)
22 CFR 82.17 Consular responsibilities for payment of wages.
(a) Wages and extra wages due American seamen. When a United States
consular officer discharges a seaman in a foreign port, the officer
shall collect and pay to the seaman the arrears of wages and extra wages
due him at the time of discharge, unless the seaman elects to accept,
instead of immediate payment of the whole or a portion of his wages, a
wage voucher signed by both the master and the seaman, evidencing the
amount owed the seaman to be paid in future settlement. If a United
States consular officer fails to collect the wages, extra wages or wage
voucher on behalf of the seaman, the consular officer becomes
accountable to the United States for the full amount thereof. The
consular officer is not obligated to collect and pay to a seaman wages
accuring to him subsequent to the time of his discharge, and should not
intervene in attempts to collect such wages from the vessel's operators.
(b) Overtime compensation due American seamen. Overtime paid seamen
is technically a part of their wages, but is payable under the
provisions of maritime collective bargaining agreements. Consular
officers are not, therefore, legally responsible for the collection and
payment of overtime wages, and should leave disputes in relation to
overtime for settlement in the United States where bargaining machinery
has been established to handle them. When such a dispute arises, a
simple statement may be attached to the wage voucher by the master
indicating that any overtime due will be paid by the ship operator on
arrival in the United States in accordance with the collective
bargaining agreement.
(c) Bonus payments to American seamen. Bonus payments are in a
similar category to overtime payments. Such payments may be collected
or deferred according to the circumstances. Since masters and consular
officers frequently do not have the latest bonus decisions when a seamen
is discharged, controversies over bonus payments should be left for
settlement upon the seamen's arrival in the United States.
(d) Wages due American seamen of foreign nationality. An American
seamen of foreign nationality (see 81.1(j) and 81.6(b) of this
chapter) is entitled to extra wages on his discharge at a foreign port
in all cases where an American seaman who is a United States citizen
would be so entitled. On the other hand, an alien seamen as defined in
81.1(k) of this chapter is not entitled to extra wages upon discharge.
(Fed. Cas. No. 16002; 2 F. Rep. 264)
22 CFR 82.18 Medium for payment of wages.
(a) Currency. Moneys paid under the laws of the United States, by
direction of United States consular officers of shipping agents, at any
foreign port or place to American seamen as wages extra or otherwise,
shall be paid in United States coin or currency if permissible under the
laws of the country in which payment is made; or in local currency at
the current bank selling rate for sigh drafts on New York prevailing on
the date of collection.
(b) Voucher. A seaman discharged at a foreign port shall be given,
if he so elects, instead of full or partial payment of his wages at the
time of discharge, a wage voucher signed by the master, evidencing the
amount owed the seaman to be paid in future settlement.
22 CFR 82.19 Desertions and failure to rejoin.
(a) Obligation of master to report desertions. If the desertion
occurs at a foreign port, the master should report the desertion to a
United States consular officer within forty-eight hours if possible. If
such notification is impossible, the desertion shall be reported at the
next port of call where there is a United States consular officer.
(b) Consular responsibility. An alleged desertion shall be carefully
investigated by a consular officer. He shall exercise care in
interpreting the law and regulations defining desertion from vessels of
the United States and shall not consider seamen deserters who are absent
without leave or who overstay their leave without intent to sever
connection with their vessel. Consular officers shall take every proper
measure to discourage and defeat any proceedings on the part of masters
under which seamen are permitted or forced to desert and subsequently
come to the Foreign Service office for relief. A consular officer shall
not certify the desertion statement of any master until satisfied that
the desertion was not consented to or abetted by the master or his
officers or was not justified by conduct on their part toward the
seamen.
(c) Arrest of deserters. Sections 16 and 17 of the act of March 4,
1915, known as the ''La Follette Act,'' forbid the imprisonment of
merchant seamen charged with desertion and all provisions of treaties
contrary to this policy have been denounced. However, deserters are
subject to the laws of the country where they may be, and not
infrequently the local authorities detain deserters as persons who have
not been lawfully admitted into the country under its immigration laws.
In such cases, consular officers shall procure as liberal treatment as
possible for the seamen detained, if they are American seamen.
(d) Disposition of deserter's wages on sale of vessel abroad. If the
master refuses to comply with the demand, the consular officer shall
report the facts by operations memorandum, together with the amount of
the balance and the name of the deserter, to the Department.
(R.S. 4081, as amended; 22 U.S.C. 258)
22 CFR 82.19 PART 83 -- PROTESTS, DISPUTES AND OFFENSES
Sec.
83.1 Legal right of seamen to protest.
83.2 Seamen's rights under collective bargaining agreements.
83.3 Seamen's right to survey.
83.4 Mandatory survey upon complaint of seamen.
83.5 Consular investigation of disputes between seamen.
83.6 Consular arbitration of disputes.
83.7 Jurisdiction over offenses committed on the high seas.
83.8 Jurisdiction over offenses committed in port or territorial
waters.
83.9 Jurisdiction over offenses committed ashore.
83.10 Consular responsibility for offenses within foreign
government's jurisdiction.
83.11 Consular responsibility for offenses outside foreign
government's jurisdiction.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10852, Dec. 27, 1957, unless otherwise noted.
22 CFR 83.1 Legal right of seamen to protest.
American seamen are entitled by statute to lay before United States
consular officers their complaints with regard to provisions, condition
of water, the unseaworthiness of their vessel, or continuance of the
voyage contrary to agreement. No seaman may be restricted by the master
from coming ashore to bring his complaints to the Foreign Service office
unless circumstances render this action impossible. In such case the
master must advise the consular officer of the seaman's desire to see
him, at the same time setting forth the reasons why the seaman is not
allowed ashore. Upon receipt of such communication, the consular
officer shall proceed to the vessel to hear the complaint and take
whatever action is indicated.
22 CFR 83.2 Seamen's rights under collective bargaining agreements.
In practice, the seamen's right to complain is extended to almost any
incident aboard ship. However, when seamen approach a Foreign Service
office with complaints concerning failure of the master or ship's agents
to extend them benefits provided by their collective bargaining
agreements in such matters as lodging, repatriation, food allowances,
and the like, the seamen may be informed that consular officers are
authorized to protect seamen's rights under the statutes but are not
authorized to inject themselves into disputes between parties signatory
to collective bargaining agreements. Moreover, most of these agreements
contain provisions for settlement of disputes upon completion of the
voyage, both operators and unions preferring to use machinery
established at domestic ports for this purpose.
22 CFR 83.3 Seamen's right to survey.
When complaints are received in writing in accordance with statutory
requirements, concerning alleged unseaworthiness of a vessel or its
improper provisioning, the consular officer must have made or make an
appropriate survey.
22 CFR 83.4 Mandatory survey upon complaint of seamen.
(a) Complaint that condition of vessel is unseaworthy. When a
consular officer receives a written complaint signed by the first and
second officers or the majority of the crew that their vessel in
unseaworthy or unsuitably provided because of its condition, equipment,
crew or some other particular, the officer shall have a survey made with
or without the consent of the master. In almost every port or port
area, there are representatives of one or more classification societies
such as American Bureau of Shipping, Lloyds, or Veritas. The consular
officer shall arrange for one of these bureaus to make a survey and to
report to him on their own form. The consular officer shall certify the
report and give it to the master for appropriate action. If there is no
classification society in the area, the consular officer shall obtain
the services of three qualified persons to make the survey, who will
report their findings to him in the same manner as outlined above. In
case of complaint of unseaworthiness based upon deficiency of lifesaving
equipment, the Certificate of Inspection serves as a criterion.
(b) Complaint regarding provisions or water. When a consular officer
receives a written complaint signed by three or more crew members
relative to the provisions or water aboard their vessel, he shall
examine the provisions or water, or cause them to be examined by
competent persons. Report of the findings shall be certified by the
consular officer and furnished the master for entry in the official log
and for rectification of conditions if necessary. A report shall also
be made to the Judge of the District Court for the district to which the
vessel is returning.
(c) Payment of expenses of survey. Sections 659 and 663, Title 46 of
the United States Code, provide that if a survey reveals that the
complaint of the seamen was without good and sufficient cause, the
master may retain from the wages of the complainants, divided in
proportion to their wages, a sufficient amount to cover costs of such
survey. (Exception is made in connection with fishing or whaling
vessels or yachts when the survey concerns food or water.) In those
surveys where there appears to have been reasonable basis for complaint,
the expenses of survey must be borne by the master.
(R.S. 4559, as amended, 4565, as amended; 46 U.S.C. 656, 662)
22 CFR 83.5 Consular investigation of disputes between seamen.
When a dispute arises between the master and the crew of an American
vessel or between seamen shipped on such a vessel, a United States
consular officer shall investigate the circumstances in any manner
appropriate to the situation.
22 CFR 83.6 Consular arbitration of disputes.
A United States consular officer may act as arbiter in a dispute
between the master and crew or between the seamen. If possible,
arbitration should be conducted on an informal basis and a satisfactory
solution worked out orally. However in the more serious cases, the
consular officer should take sworn statements of the parties in interest
for possible future action and reference. A consular officer has no
authority to try or to punish offending parties.
22 CFR 83.7 Jurisdiction over offenses committed on the high seas.
Under the general principles of international and maritime law,
crimes and misdemeanors, committed on the high seas and out of the
territorial limits of any state, are cognizable only in the courts of
the country to which the vessel belongs. For the purpose of prosecuting
such crimes the vessel may be regarded as part of the country of
registry. These principles are recognized and enfored by courts of the
United States and they are incorporated into Federal statutes. Piracy
is a notable exception to this rule since the law of nations recognizes
this crime as punishable by the authorities of any nation capturing the
accused persons and bringing them within the jurisdiction of its courts.
Piracy should not be confused with mutiny, which is not an
international crime in this sense.
22 CFR 83.8 Jurisdiction over offenses committed in port or territorial
waters.
(a) Offenses involving the peace of the port. When an offense is
committed aboard a merchant vessel in the port or territorial waters of
a nation other than the nation of registry, and when the offense
involves the peace of the port, the nation in whose waters the offense
is committed has jurisdiction under an accepted principle of
international law.
(b) Offenses not involving the peace of the port. When an offense is
committed aboard a merchant vessel in the port or territorial waters of
a nation other than the nation of registry, but does not involve the
peace of the port, such offense is usually left by local governments to
be adjusted by officers of the vessel and the diplomatic or consular
representatives of the nation of registry. In the case of vessels of
the United States, the right to protection against intervention by a
foreign government in this class of cases is safeguarded in many areas
by a treaty of friendship, commerce and navigation or by a consular
convention between the United States and the foreign government
concerned. Even where no treaty or convention exists, the local foreign
government will usually refrain from intervening in such cases on the
basis of comity between nations.
22 CFR 83.9 Jurisdiction over offenses committed ashore.
The courts of a country have jurisdiction over offenses against the
laws of the country committed by seamen while ashore in its ports.
22 CFR 83.10 Consular responsibility for offenses within foreign
government's jurisdiction.
When a foreign government has jurisdiction over an offense committed
on board a vessel of the United States or by American seamen in its
ports (see 83.8(a) and 83.9), a United States consular officer shall
see that the offender is properly cared for and justly treated.
However, he shall not expend any money for the defense of the accused
unless he has prior specific authorization of the Department of State.
Also, the authorities having jurisdiction over the offense are
responsible for the punishment of the offender.
22 CFR 83.11 Consular responsibility for offenses outside foreign
government's jurisdiction.
(a) Assumption of jurisdiction. When an offense is committed on
board a vessel of the United States while on the high seas (see 83.7)
or in foreign port or territorial waters under the circumstances
described in 83.8(b), a United States consular officer shall assume
jurisdiction for the United States Government in every case where local
authorities will permit him to do so, either by virtue of treaty
arrangements or under comity between nations.
(b) Consular investigation. In any case of misdemeanor or crime
involving seamen on board vessels of the United States or American
seamen, the consular officer shall investigate the circumstances in a
manner appropriate to the situation. He should question witnesses
separately and obtain their signatures to their statements as soon after
their giving testimony as is possible. When there is apparent conflict
in testimony, a witness may be allowed to make a second affidavit to
supplement his first statement if that appears desirable.
(c) Consular action on misconduct cases. Consular officers shall
discourage insubordination by every practicable means. The master of a
vessel has considerable disciplinary power under the statues to cope
with minor misdemeanors of which seamen may be guilty aboard ship.
Masters should be assisted in taking authorized disciplinary measures
when the evidence to support such action is considered sufficient. The
consular officer may make suitable entiries in the ship's log as an
official record of his recommendations to the master in the premises.
Seamen guilty of misconduct should not be discharged unless their acts
were caused by cruel treatment, or their presence on board ship would
constitute a menace to the discipline of the vessel or endanger its
operation. In discharging such seamen, the consular officer will give
the reason therefor on the ship's articles and official log, properly
certified by him.
(d) Consular action on criminal cases. When seamen accused of crime
come under the jurisdiction of a consular officer, he shall obtain all
possible sworn testimony and on the basis of such information take
appropriate action. A consular officer has discretionary authority to
return a seaman to the United States for trial. If the circumstances
demand that the offender be sent to the United States for trial, the
consular officer may discharge the seaman and apply to the local
authorities for means to secure and detain him while he remains in port.
Arrangements for return of witnesses will be made by the Department of
Justice at the appropriate time.
(e) Consular action on mutiny cases. Consular officers shall
investigate promptly reports of mutinies on vessels of the United States
which arrive in their districts and, when necessary, shall take
measures, consistent with treaties and usuage, to establish order on the
vessel and to return the mutineers to the United States for trial.
Consular officers have a wide discretion in deciding whether evidence
justifies the detention and return to United States for trial of persons
charged with mutiny.
(f) Detention of accused aboard ship. The accused shall be placed in
the custody of the master who shall take such measures as he deems
necessary to detain the seaman. The master will be given certified
copies of the affidavits taken in the case to be turned over to the
authority taking custody of the accused in the continental United
States.
(R.S. 4600, as amended; 46 U.S.C. 703)
22 CFR 83.11 PART 84 -- RELIEF AND REPATRIATION OF SEAMEN
Sec.
84.1 Financial responsibility of owners or operators of American
vessels.
84.2 Financial responsibility of United States Government.
84.3 Consular investigation of applicants for relief.
84.4 Destitute seamen.
84.5 Shipwrecked seamen.
84.6 Ill or injured seamen.
84.7 Stragglers.
84.8 Deserters.
84.9 Relief at Government expense.
84.10 Repatriation ports.
84.11 Necessity for prompt repatriation.
84.12 Repatriation of seamen without consular authorization.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10854, Dec. 27, 1957, unless otherwise noted.
22 CFR 84.1 Financial responsibility of owners or operators of American
vessels.
By maritime practice, Comptroller General decisions or maritime
bargaining agreements, United States owners or operators are held
responsible for relief and repatriation of all seamen separated from
their vessels at foreign ports for any reason except desertion or
shipwreck.
22 CFR 84.2 Financial responsibility of United States Government.
By statute, a United States consular officer must furnish or cause to
be furnished relief and repatriation to any destitute American seamen,
including seamen from documented fishing vessels of the United States.
He is responsible in a like manner for shipwrecked or ill or injured
American seamen, and is solely responsible for certified deserters who
are United States citizens. He has temporary responsibility for the
relief of stranded alien seamen signed on abroad and separated from
vessels of the United States because of shipwreck, illness or injury, or
bankruptcy on the part of the shipowner.
22 CFR 84.3 Consular investigation of applicants for relief.
Before granting relief, a consular officer shall satisfy himself that
the seaman is entitled to relief under the statutes, maritime usages,
and Comptroller General decisions.
22 CFR 84.4 Destitute seamen.
The question as to whether an American seaman is destitute within the
meaning of R.S. 4577 (46 U.S.C. 678) is one for determination in the
first instance by the United States consular officer to whom the seaman
applies for relief. The consular officer's decision, in the absence of
contrary facts, is sufficient. (2 Comp. Gen. 317)
22 CFR 84.5 Shipwrecked seamen.
When seamen from vessels of the United States arrive after shipwreck
at a port within a consular district, the consular officer concerned
shall make immediate arrangements for their relief. Relief may be
afforded without regard to the nationality of the seaman, whether he has
status as an American seaman (see 81.1(j) of this chapter) or whether
he has funds in his possession. In addition, American seamen, if they
cannot be reshipped should be provided with passage to the United States
or to an intermediate port where employment may be had or passage
obtained. Alien seamen shipped at foreign ports are not entitled to
transportation to the United States or to the port of shipment.
However, an alien seaman may be granted temporary relief until
reshipment is possible or until arrangement can be made with
representatives of the government of which the alien seaman is a citizen
or subject, for his care and transportation or other relief at the
expense of that government. If the owners or operators of a shipwrecked
vessel assume responsibility for the relief and repatriation of
survivors, consular officers should interpose no objection. This
assumption of responsibility which is customary, is on a voluntary basis
and is in no sense demanded by the Department of State or consular
officers. Seamen from shipwrecked yachts are to be granted relief only
if destitute in fact, although seamen from fishing and whaling vessels
may be furnished relief as outlined above.
(R.S. 4526, as amended; 46 U.S.C. 593)
22 CFR 84.6 Ill or injured seamen.
(a) Statutory responsibility of Government. The statutes provide
that when a seaman becomes ill or is injured in the service of a vessel
of the United States and is formally discharged before a consular
officer by reason of being incapacitated on account of such injury or
illness relief may be furnished the seaman by the consular officer,
regardless of the cause of his illness or injury and regradless of
whether or not the said seaman may have funds of his own sufficient for
his immediate needs. Also relief may be furnished ill or injured seamen
from documented fishing vessels even if not signed on shipping articles.
(b) Responsibility of owners under maritime practice. Maritime usage
has placed upon the operator of the vessel the primary responsibility
for ill or injured seamen whose disability is not the result of their
own misconduct.
(c) Responsibility according to Comptroller General. The Comptroller
General, to whom United States consular officers must account for
expenditure of Government funds, has placed responsibility for all ill
or injured seamen, regardless of the cause of their disability, upon the
operators and has indicated that consular officers should not discharge
seamen until responsibility for their care and repatriation has been
assumed by the master or agent on behalf of operators. The Comptroller
General has stated that notwithstanding a seaman's discharge from a
vessel on account of venereal disease, a duty devolves upon a shipping
company to furnish hospitalization, subsistence and repatriation to a
seaman then and previously in its employ, and to furnish such reasonable
medical care and treatment as may be necessary during the return voyage.
Under maritime custom and as a matter of public policy, the obligation
of the shipping company goes further than a mere contractual
relationship with the seaman, and said obligation is not terminated on
the discharge of the seaman in a foreign country. (Comp. Gen. A-17383,
April 1, 1927)
(d) Effect of failure to discharge before consular officer. If the
seaman becomes ill, or is injured in the service of a vessel, whether or
not through his own fault, but is not discharged before a consular
officer, the consular officer is not required by law to furnish relief
to the seaman from United States funds unless the said seaman is found
destitute within the consular officer's district. If a seaman becomes
ill or is injured while a member of the crew of a vessel and is place in
a hospital by the master of the vessel prior to his being discharged
before a consular officer, the consular officer is not authorized to pay
from Government funds any part of the hospital expenses incurred, either
after discharge if later accomplished or prior thereto.
(e) Emergency relief at Government expense. Where conditions are
such that United States consular officers cannot procure prompt medical
and hospital treatment and subsistence for American seamen at the
expense of the master or owner of the vessel upon which the seaman last
served, relief may be furnished at the expense of the Government and
payment made therefor from the appropriation for the relief of American
seamen. Refusal on the part of a master or owner should be in writing
in order that the consular officer may show basis for expenditure of
funds.
(f) Liability of shipowner. Consular officers shall report promptly
all cases were vessels or owners refuse to assume responsibility for the
care and repatriation of seamen in accordance with law. 29 Op. Att.
Gen. 54 states:
An American seaman, disabled in the service of the vessel and who was
left in a hospital at a foreign port, is entitled to medical expenses
incident to a recovery from the injury and transportation back to the
United States, and where these expenses are paid out of funds belonging
to the United States, after notice to the owners of the vessel that they
were liable for the same and demand made for payment, the owners of the
vessel may be held liable therefor.
(R.S. 4581, as amended; 46 U.S.C. 683)
22 CFR 84.7 Stragglers.
A seaman, who fails to rejoin his vessel but without intent to
desert, is termed a ''straggler''. Responsibility for his maintenance
and repatriation remains with the shipowner. (Comp. Gen. A-30607, Mar.
22, 1930)
22 CFR 84.8 Deserters.
(a) Responsibility of the Government. There is no obligation on the
owner of a vessel from which an American seaman has deserted while the
vessel was at a foreign port to transport the seaman back to the United
States, and where such seaman has become destitute while abroad payment
from public funds for transportation back to the United States, even
though furnished on a vessel of the same company as the vessel on which
the seaman originally shipped, may be made under the laws applicable to
destitute American seamen. (3 Comp. Gen. 936) (See 82.19 of this
chapter.)
(b) Documentation of deserters. However, the Comptroller General
will not recognize desertions unless reported if possible by the master
to a consular officer at the port of desertion within forty-eight hours
or, where necessary, at the next port of call. The desertion must be
certified by the consular officer and all desertions must conform to the
definitions given in 82.19 of this chapter. A copy of the log of a
vessel certified by a United States shipping commissioner stating that a
seaman had deserted the vessel in a foreign port, unsupported by
evidence that the seaman was reported as a deserter to an American
consular officer within forty-eight hours and by a certificate of
desertion issued by the consular officer in accordance with these
regulations in this part, is not sufficient to establish desertion or
that the company has been relieved of liability to return the seaman to
the United States. (8 Comp. Gen. 194)
22 CFR 84.9 Relief at Government expense.
(a) Lodging and subsistence. The lodging should be in a healthy
locality, removed, if possible, from scenes of temptation and vice. The
subsistence should be simple but sufficient. It is usual to contract
for the board of seamen.
(b) Clothing. The clothing should be as inexpensive as is consistent
with strength and durability. The quantity of clothing furnished should
be limited to that necessary adequately to clothe the seaman until his
arrival in the United States.
(c) Medical attendance and medicine. Medical attendance and medicine
may be provided in emergency cases. These should be obtained at a
hospital, if there is one in the place, unless special instructions to
the contrary are given. If private treatment is provided, the voucher
must indicate the reasons.
22 CFR 84.10 Repatriation ports.
(a) Shipwrecked American seamen. In cases of shipwreck, American
seamen survivors are entitled to repatriation to the port of shipment,
regardless of whether it is a foreign port or a United States port.
However, shipwrecked American seamen shipped in a foreign port, may if
they prefer and the circumstances are not unfavorable, be repatriated to
a port in the continental United States. (See paragraphs (c) and (d) of
this section.)
(b) Destitute American seamen. The primary purpose of repatriation
at Government expense is to make the seamen available for service in the
American merchant marine. Therefore, destitute American seamen, other
than survivors of shipwrecks, are entitled to repatriation only to a
port in the United States. The port of repatriation may be any
convenient port in the continental United States to which the
transporting vessel is destined. For rules governing repatriation to an
insular or territorial port of the United States or to an intermediate
port, see paragraphs (c) and (d) of this section.
(c) Repatriation to United States insular or territorial ports.
Employment conditions in ports of the territorial and insular
possessions of the United States do not ordinarily warrant consular
officers in repatriating American seamen to such ports. Consular
officers should not, therefore, arrange for the transportation of
American seamen to ports of the territorial or insular possessions of
the United States, except those of the Panama Canal Zone, unless the
seamen reside in those ports or other special circumstances clearly
warrant such action.
(d) Repatriation to intermediate ports. In places where
opportunities for repatriating seamen seldom occur and employment on
board vessels of the United States cannot be obtained, the consular
officer may send destitute seamen to an intermediate port. He shall
consider the relative cost of keeping the seamen where they are and at
the port to which they can be sent, together with the expense of their
passage there and the probability that they may obtain employment at
that port or a passage home; and he shall adopt the course which may
seem best, having a due regard for the interests of the United States
and a proper concern for the seamen.
22 CFR 84.11 Necessity for prompt repatriation.
When a destitute seaman is entitled to repatriation, transportation
should be furnished at the earliest possible opportunity, either
directly to a United States port or to an intermediate port where he may
find employment on a vessel of the United States or passage to the
United States. The consular officer is the proper judge as to the
vessel on which the seaman should be placed for his return to the United
States. A seaman must, if he is able to travel, accept the first offer
of repatriation whether as a workaway or otherwise. Refusal to accept
passage deprives the seaman of his right to further assistance.
22 CFR 84.12 Repatriation of seamen without consular authorization.
(a) Authorized expenditures. Whenever distressed or destitute
American seamen are transported from foreign ports where there is no
United States consular officer, or from points on the high seas, to
ports of the United States; or from such foreign ports or points on the
high seas to a port accessible to a United States consular officer for
the further relief and repatriation of such seamen, the master or owner
of the transporting vessel shall be allowed such compensation as the
Secretary of State determines is equitable.
(b) Transportation direct to the United States. Accounts and claims
for transporting direct to a port of the United States distressed or
destitute seamen picked up at sea or at some foreign port where there is
no United States consular officer should be submitted to the Secretary
of State for consideration and transmittal to the Comptroller General.
Such claims should be accompanied by satisfactory evidence as to the
services rendered, the length of time the seamen were on board the
transporting vessel, and the arrival of the seamen in the United States.
(c) Transportation to Foreign Service office. When distressed or
destitute American seamen picked up at sea or at a foreign port where
there is no United States consular officer are transported to a port
where there is a consular officer or to a port accessible to his office,
the consular officer is authorized to pay the master of the transporting
vessel an amount not exceeding 60 cents a day for each seaman. The
master may, if he does not consider such compensation adequate, submit
his claim direct to the Secretary of State. The claim will receive the
administrative consideration of the Secretary of State, and will then be
sent to the Comptroller General for settlement.
22 CFR 84.12 PART 85 -- DECEASED SEAMEN AND THEIR EFFECTS
Sec.
85.1 Financial responsibility for burial of seamen.
85.2 Shipment of remains.
85.3 Reports of death.
85.4 Custody of effects of American seamen.
85.5 Sale of effects.
85.6 Disposition of proceeds of sale and of unsold effects.
85.7 Defrayal of expenses.
85.8 Effects of alien seamen.
85.9 Accounting for effects.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10855, Dec. 27, 1957, unless otherwise noted.
22 CFR 85.1 Financial responsibility for burial of seamen.
(a) Owners or operators of vessels of the United States. The owner
of a vessel of the United States is responsible for the payment of
burial expenses of a seaman from the vessel, if such owner would have
been liable for the seaman's care, subsistence and repatriation but for
the seaman's death. The burial expenses are properly chargeable to the
ship and may not be deducted from the seaman's wages.
(b) United States Government. Burial expenses are paid by the
Government only in cases where the circumstances would have warranted
expenditure of Government funds for the seaman's maintanance and
repatriation if he had not died. The expenses chargeable to the
Government are for preparation of the remains and ordinary expenses of
interment in foreign countries or in territories and possessions of the
United States. A United States flag may be used to drape the casket.
Although charges for flowers, religious services, and other similiar
items, which are not necessary for interment, are not allowable, the
service should be conducted with dignity. Vouchers covering burial
expenses must be fully itemized to show the cost of each item.
22 CFR 85.2 Shipment of remains.
No appropriation is available for the shipment of remains of seamen.
(Comp. Gen. A-53494, June 14, 1934.) However, if the family of a seaman
desires the return of his body at their expense, the same procedure will
be followed as in returning the bodies of other American citizens.
22 CFR 85.3 Reports of death.
(a) Reports to the Department. When knowledge of the death of any
American seaman or of any United States citizen serving on a foreign
vessel reaches a United States consular officer, he shall report such
death promptly to the Department.
(b) Reports to relatives. The consular officer will when
practicable, communicate information relative to the death of a United
States citizen seaman or an American seaman of foreign nationality to
the next of kin, or other interested persons, sending all available and
proper data.
22 CFR 85.4 Custody of effects of American seamen.
(a) Seamen dying aboard ship. When any American seaman, belonging to
or sent home on any merchant vessel whose voyage is to terminate in the
United States, dies during such voyage, the master should take charge of
all monies, clothes, and effects left on board by the seaman. If the
ship touches or remains at a foreign port before coming to any port of
the United States, the master should report the case to the consular
officer there, and give such officer any information he requires as to
the destination of the ship and the length of the voyage. Thereupon
such officer may, if he considers it expedient, require the said
effects, money and wages to be delivered and paid to him. Upon that
being done he shall give the master a receipt therefor on Form FS-85.
The consular officer shall also endorse and certify upon the agreement
with the crew the particulars of such delivery and payment. If he does
not require the delivery and payment, he shall obtain from the master a
statement of the seaman's account with the vessel, and transmit a copy
thereof to the Department. If the ship is sold in a foreign port and
the master has in his possession the effects, money, and wages of a
deceased seaman, the consular officer may require them to be delivered
to him.
(b) Seamen dying ashore. Whenever any American seaman dies at any
place outside of the United States, leaving any money or effects not on
board his vessel, the United States consular officer at or nearest the
place shall claim and take charge of such money and effects.
(R.S. 4538, 4539 as amended, 4541 as amended; 46 U.S.C. 621, 622,
624)
22 CFR 85.5 Sale of effects.
The consular officer shall, if he thinks fit, sell all or any of such
effects of any seaman as may be delivered to him under the provisions of
law.
22 CFR 85.6 Disposition of proceeds of sale and of unsold effects.
If effects are sold, the consular officer shall monthly remit to the
responsible district court all moneys belonging to or arising from the
sale of the effects or paid as the wages of any deceased seaman which
have come into his hands and shall render such accounts thereof on the
reverse side of Form FS-85 as the district court requires. The effects
of deceased American seamen not sold and all wages or moneys coming into
the possession of a consular officer under any of the foregoing
provisions shall likewise be remitted to the district court for
administration. However, certificates and identification papers issued
by Government agencies should be transmitted to the Department for
return to the issuing agency.
(R.S. 4541 as amended; 46 U.S.C. 624)
22 CFR 85.7 Defrayal of expenses.
Costs arising in connection with transmittal to the court of the
monies and effects of a deceased seaman, such as a bank draft or
transportation charges, are properly chargeable to the estate of the
seaman and should be defrayed from such funds as are contained therein.
22 CFR 85.8 Effects of alien seamen.
If a deceased seaman of foreign nationality was not an American
seaman as defined in 81.1(j) of this chapter, and the wages and effects
are delivered to the consular officer, the latter should make proper
inquiries to find the relatives of the deceased and may determine for
himself to whom the wages and effects should be given. If no relatives
are found or if the officer cannot satisfactorily determine the
relatives entitled to the wages and money arising from the sale of the
effects, they should be remitted to the district court as provided in
85.6 A consular officer may not deliver the wages and effects of such a
deceased seaman to an official of the foreign government of which the
deceased was citizen or subject unless such official holds a valid
appointment to represent the heirs. (1 Comp. Gen. 621)
22 CFR 85.9 Accounting for effects.
(a) Statement of details to district court. Consular officers are
required, in rendering the accounts provided for by law, to make a
statement of details, namely:
(1) A statement of the amount of money left by the deceased and any
of his effects unsold;
(2) A description of each article sold, and the sum received for
each;
(3) The sum due the deceased for wages, with dates, and the items of
deduction, if any to be made therefrom -- no such deduction being
allowed to the master unless verified by an entry in the official log
book.
(b) Wage account to district court. The master shall be required to
give full particulars of the wage account of the seamen, including the
date of shipment, rate of wages, and time of discharge, and any
deductions therefrom, to be verified by entry in the official log; such
account to be verified before the consular officer by the master, and a
certified copy thereof to be sent with the account to the district
court, together with information regarding the names and addresses of
the next of kin, or other interested persons, of the decedent.
(c) Receipts from Court. Consular officers shall be careful to
obtain from the court receipts in duplicate for all monies, wages, and
effects transmitted by the Foreign Service office.
22 CFR 85.9 PART 86 -- MARITIME DISASTERS, AWARDS AND SEIZURES
Sec.
86.1 Reports on disasters.
86.2 Consular authority over wrecked, lost, or stranded vessels of
the United States.
86.3 Consular authority when interested party is present.
86.4 Consular jurisdiction in salvage cases.
86.5 Consular duties when assuming jurisdiction.
86.6 Reports on rescues and heroic conduct.
86.7 Seizures of vessels.
86.8 Certification by Secretary of State of fines, fees, and other
direct charges.
86.9 Lien on vessel.
86.10 Claims arising out of seizures of vessels.
86.11 Notification.
86.12 Exemptions.
Authority: Sec. 4 of the Act of May 26, 1949, as amended, 63 Stat.
111, (22 U.S.C. 2658) unless otherwise noted and delegation of authority
No. 94-1 dated March 6, 1969 (34 FR 5512).
Source: 22 FR 10856, Dec. 27, 1957, unless otherwise noted.
22 CFR 86.1 Reports on disasters.
When a vessel of the United States is wrecked, lost, or stranded
within the jurisdiction of a United States consular officer, or when
such a vessel, its cargo, or passengers and crew, are brought into his
jurisdiction after a disaster at sea, the consular officer shall
immediately transmit a telegraphic report to the Department of State,
giving the name of the vessel, its owner and home port, the voyage on
which it was bound, the circumstances attending the disaster including a
statement of the nature of the disaster, the date of occurrence, and the
exact location, and information concerning the safety of passengers and
crew. Names of those known to be killed, injured or missing should be
listed with indication concerning others known to be safe. The report
shall, if possible, include information as to whether the vessel is an
actual or constructive total loss. The telegraphic report should be
followed by a detailed airmail report which shall state whether the
ship's papers have been saved.
22 CFR 86.2 Consular authority over wrecked, lost, or stranded vessels
of the United States.
(a) Under United States statutes. If treaty provisions, established
usage, or local laws permit, a United States consular officer shall
assume jurisdiction over a vessel of the United States which has been
wrecked or stranded on a coast within his district or which has been
brought into his district after having suffered a diaster at sea; and
over any cargo or effects belonging to United States citizens which have
been brought into the officer's district from a wrecked or lost vessel
of the United States: Provided, That the captain or owner of the
vessel, or the owner or consignee of the cargo, or the owner of the
effects, is absent or incapable of taking possession of the property
concerned: And provided, That no salvage claim has attached to the
property.
(b) Under treaties or custom. A consular officer shall familiarize
himself with the treaty or treaties in force between the United States
and the country of assignment regarding the jurisdiction of a United
States consular officer over wrecked or stranded vessels of the United
States, their cargoes, and effects; and shall exercise such authority
as has been granted to him to its fullest extent in the interest of
those concerned. In the absence of a specific treaty provision on this
subject, the consular officer shall be guided by the generally conceded
custom in the country of assignment. In the case of cargo of foreign
origin which is brought into a country from a wrecked or stranded
vessel, the rule in the United States is that such cargo is exempt from
customs duties if it is transshipped or reloaded under customs
supervision and taken out of the country. Officers shall endeavor to
have similar treatment accorded in a foreign country with reference to
cargo belonging to United States citizens, which is brought into the
country from a wrecked or stranded vessel. If rights granted by treaty
or acquired by established usage are denied or ignored, the consular
officer shall submit an immediate report in the premises to the
Department of State, the diplomatic mission of the United States in the
country of assignment, and to the supervising consulate general, if
there is one.
(c) Under local laws. In the absence of a treaty or an established
custom giving a United States consular officer jurisdiction over wrecked
or stranded vessels of the United States, their cargoes, and effects,
the consular officer shall conform to local laws and regulations on this
subject. However, if, under local laws, the magistrate or some other
official is vested with jurisdiction over the property in question, the
consular officer shall request permission to assist in proceedings
relating to its disposition. If the consular officer's reasonable
request in this connection is refused, he shall submit a statement of
the facts involved, together with any necessary supporting evidence, to
the Department of State and the diplomatic mission, by telegraph if
necessary.
(R.S. 4238; 46 U.S.C. 721)
22 CFR 86.3 Consular authority when interested party is present.
A consular officer is prohibited from assuming jurisdiction over a
wrecked or stranded vessel of the United States when a party in interest
is present. He may, however, if requested, act as official adviser of
the party in interest and should do everything within his power under
treaty provisions, established usage, or local laws, to protect this
interest.
22 CFR 86.4 Consular jurisdiction in salvage cases.
As a rule, when a lien for salvage has attached to a wrecked vessel,
its cargo, or effects the consular officer has no jurisdiction over the
vessel, cargo, or effects until the salvage claim has been adjudicated.
22 CFR 86.5 Consular duties when assuming jurisdiction.
(a) Request for instruction. In the few countries where a United
States consular officer is empowered to assume jurisdiction over a
salvaged vessel or cargo, he shall immediately telegraph the Department
of State for authority to assume jurisdiction, request that instructions
be obtained from the owners if possible relative to his course of
action, and furnish an estimate of funds needed to be deposited with the
Department for expenses necessarily incurred in carrying out
instructions.
(b) Safeguarding of vessel and cargo. Pending receipt of
instructions from the owners or from the Department, a consular officer
may, for his own protection, post a guard at the wrecked or stranded
vessel, or over the cargo and effects brought into his district from a
vessel which has been wrecked or stranded at sea, to prevent pilferage.
Any expenses necessarily expended in employing a guard for this purpose
are chargeable against the property in question.
(c) Collection and disposal of papers. The consular officer will
endeavor to collect the ship's papers and documents relating to the
vessel, its cargo, and passengers, and, if possible, deliver them to the
proper persons. In the event of the death or nonappearance of such
persons, the consular officer shall transmit the papers to the
Department.
(d) Disposition of unclaimed property. If the owners of the vessel,
cargo, or effects are unknown, the consular officer shall submit a full
report to the Department and await instructions before taking further
action. Upon receipt of necessary authorization from the Department, a
consular officer may dispose of unclaimed merchandise and effects in the
manner set forth for the disposition of effects of a citizen of the
United States dying abroad.
(R.S. 4238; 46 U.S.C. 721)
22 CFR 86.6 Reports on rescues and heroic conduct.
When a consular officer receives authentic information that the
master or crew of any vessel, American or foreign, or that any person,
has rescued seamen or citizens of the United States from drowning,
shipwreck or some other catastrophe at sea, he shall immediately
transmit to the Department a detailed report concerning the rescue and
shall make recommendations with reference to the giving of rewards to
persons who have distinguished themselves in effecting the rescue.
22 CFR 86.7 Seizures of vessels.
(a) When a private vessel documented or certificated under the laws
of the United States is seized by a foreign country on the basis of
rights or claims in territorial waters or the high seas which are not
recognized by the United States, and
(b) There is no dispute of material facts with respect to the
location or activity of such vessel at the time of the seizure, the
Secretary of State shall, as soon as practicable, take such action as he
deems appropriate to attend to the welfare of such vessel and its crew
while it is held by such country, to secure the release of such vessel
and crew, and to immediately ascertain the amount of any fine, fee, or
other direct charge which had been paid to secure the prompt release of
the vessel and the crew.
(38 FR 4252, Feb. 12, 1973)
22 CFR 86.8 Certification by Secretary of State of fines, fees, and
other direct charges.
(a) When a vessel is seized under the conditions stated in 86.7, and
a fine, license fee, registration fee, or any other direct charge has
been paid in order to secure the prompt release of the vessel and crew,
the legal adviser or deputy legal adviser, acting for the Secretary of
State, shall, as soon as possible after ascertainment, make a
certification to the Secretary of the Treasury of the amount of the
fine, license fee, registration fee, or any other direct charge actually
paid for reimbursement to the owner of such vessel from the Fishermen's
Protective Fund, as authorized by the Act of October 26, 1972 amending
the Fishermen's Protective Act of 1967.
(b) As a condition precedent to such certification, the owner of the
vessel or his agent shall furnish the Secretary of State a ''Certificate
of Ownership of Vessel'' showing that the vessel was documented or
certificated under the laws of the United States at the time of seizure.
(38 FR 4252, Feb. 12, 1973)
22 CFR 86.9 Lien on vessel.
The amount of any reimbursement from the Fishermen's Protective Fund
made by the Secretary of the Treasury to the owner of a vessel as
provided in 86.8 shall constitute a lien on the vessel which may be
recovered in proceedings by libel in rem in the district court of the
United States for any district within which the vessel may found. Such
lien shall terminate on the 90th day after the date on which the
Treasury check of reimbursement is issued to the owner unless before
such 90th day the United States terminates the lien or initiates action
to enforce the lien. The Secretary of State shall initially determine
at an appropriate time before the 90th day whether proceedings shall be
initiated by the United States to enforce such lien. The Secretary of
State shall request the Department of Justice to initiate and conduct
the lien proceedings.
(38 FR 4252, Feb. 12, 1973)
22 CFR 86.10 Claims arising out of seizures of vessels.
(a) Submission of claim. (1) Within 50 days after reimbursement of a
fine, fee or other direct charges by the Secretary of the Treasury, the
owner of the vessel shall submit a property prepared and documented
claim to the Office of the Legal Adviser, Department of State,
Washington, D.C. 20520. The claim may be filed by the owner of the
vessel or by an authorized agent. When filed by an agent, the claim
must show the title or capacity of the person presenting the claim and
must be accompanied by evidence of his appointment as a duly authorized
agent.
(2) The owner of the vessel or his agent may within 15 days after
notification in writing by the Department of State of the invalidity of
the claim or the insufficiency of evidence to support the claim, submit
supporting legal briefs, additional documents or evidence, or request a
review of the claim by the Department of State.
(b) Form of claim. The claim shall be prepared in the form of a
sworn statement, in triplicate, and shall contain in narrative form a
clear chronological statement of the following facts:
(1) Name and address of claimant.
(2) Date and manner in which claimant became a national of the United
States.
(3) Date and manner in which claimant acquired vessel or other
property involved.
(4) Name of home port of vessel at time of seizure and date of last
documentation.
(5) Date and time of seizure and foreign government making the
seizure.
(6) Detailed circumstances of the seizure, including the exact place
of seizure and how determined, activities of the vessel when seized,
actions of the seizing vessel, etc.
(7) Names of official and agency seizing the vessel and description
of seizing vessel.
(8) Hearings afforded the captain of the vessel, defenses interposed
and determination of the tribunal, including the amount of the fine
paid, and/or the license fee, registration fee and other direct charges
exacted as a condition of release.
(9) Name of agency to which amounts in item 8 paid.
(10) Date vessel released and date sailed.
(11) Nature and amount of other losses sustained as a result of the
seizure.
(c) Evidence to be submitted by claimant. There shall be attached to
the sworn statement of claim documentary evidence consisting of original
documents or certified copies thereof to support every allegation in the
sworn statement. The documents filed as evidence shall be numbered
consecutively and cited by number in the sworn statement in support of
which the documents are filed. All evidence shall be filed in
triplicate. The original evidence or certified copies thereof shall be
attached to the original copy of the claim. Uncertified copies may be
attached to the other two copies of the affidavit of claim. All
documents submitted in other than the English language shall be
accompanied by an English translation. The more important documentary
evidence filed in support of the claim shall include the following:
(1) Articles of incorporation of the owner or partnership agreement
of the owners and all amendments thereto.
(2) Proof of citizenship of officers and directors of the corporation
or of the partners, or of a sole individual owner, as the case may be.
(3) Affidavit of an officer of the corporation as to the citizenship
status of the stockholders as far as known.
(4) Receipt for payment of fine, fees, or other direct charge.
(5) Proof to substantiate all other expenses for which claim is made,
consisting of receipts, vouchers, etc.
(6) Log of the vessel seized.
(7) Records of any hearings conducted by authorities of the
government making the seizure relative to such seizure.
(8) Convincing evidence of any available nature to bring the case
within the provisions of the statute.
(9) Affidavits of officers of the seized vessel corroborating
allegations upon which the claim is based.
(38 FR 4252, Feb. 12, 1973)
22 CFR 86.11 Notification.
The Department of State will notify the Department of the Treasury
and the owner of the vessel or his agent in writing of the final
determination made regarding any pending claim.
(38 FR 4252, Feb. 12, 1973)
22 CFR 86.12 Exemptions.
The provisions of this section shall apply with respect to seizures
of vessels of the United States occurring on or after October 26, 1972;
except that reimbursements under section 3 of the Fishermen's Protective
Act of 1967 may be made from the fund provided by section 9 of the Act
as amended with respect to any seizure of a vessel occurring before such
date of enactment and after December 31, 1970, if no reimbursement had
been made before such date.
(38 FR 4252, Feb. 12, 1973)
22 CFR 86.12 Pt. 87
22 CFR 86.12 PART 87 -- TRANSFERS OF VESSELS ABROAD
Sec.
87.1 Transfers to American ownership.
87.2 Transfers of American vessels to aliens or to foreign registry.
22 CFR 87.1 Transfers to American ownership.
When a vessel has been transferred abroad from foreign to United
States ownership, a consular officer shall, when requested, perform the
following services for the purchaser or purchasers of the vessel:
(a) Take an acknowledgment of the execution of the bill of sale for
the vessel and make the bill of sale a matter of record in the Foreign
Service office; and
(b) Either issue a Provisional Certificate of Registry (Customs Form
1266-A) for the vessel, provided the purchaser or purchasers desire to
have it documented under the laws of the United States, and provided the
Commissioner of Customs, Department of the Treasury, first approves the
issuance of such a certificate; or if the purchaser or purchasers do
not desire or intend to have the vessel documented under the laws of the
United States, issue a Certificate of American Ownership for the vessel,
provided approval of the Department of State is obtained in advance. A
Certificate of American Ownership is prima facie proof that the vessel
concerned was transferred to United States ownership, that the transfer
was made in good faith, and that the owners are United States citizens.
(Sec. 302, 60 Stat. 1001; 22 U.S.C. 842)
(22 FR 10858, Dec. 27, 1957)
22 CFR 87.2 Transfers of American vessels to aliens or to foreign
registry.
A consular officer shall, upon request, inform interested parties
that formal written application for the approval of the Maritime
Administration must be filed, in duplicate, on Form MA-29. Upon
completion by the applicants of the necessary documents for the Maritime
Administration, the consular officer may transmit such documents for
them to the Maritime Administration through the Department of State. A
consular officer shall, upon receipt of a request to perform any
services connected with the actual transfer of a vessel or an interest
therein to any person not a United States citizen, ascertain whether the
transaction has been approved by the Maritime Administration. If it
has, the consular officer shall perform any notarial services connected
with the transaction, and shall submit a complete report in the premises
to the Department of State for transmittal to the Maritime
Administration, accompanied by a certified copy of the bill of sale,
mortgage, lease, charter, or such other evidence of the transfer as may
be obtainable. If the transaction has not been approved by the Maritime
Administration, the consular officer shall inform the parties in
interest of the penalties attached by reason of failure to procure the
required approval, and shall submit a complete report in the premises to
the Department of State for transmittal to the Maritime Administration.
(Sec. 302, 60 Stat. 1001; 22 U.S.C. 842)
(22 FR 10858, Dec. 27, 1957)
Cross Reference: For regulations relating to transfers of vessels of
war to foreign registry, see 123.08 of this chapter.
22 CFR 87.2 Pt. 88
22 CFR 87.2 PART 88 -- FEES FOR SERVICES
Sec.
88.1 Services for American vessels.
88.3 Services for foreign vessels.
22 CFR 88.1 Services for American vessels.
No fees are chargeable for services performed for a public vessel or
for a vessel regularly documented under the laws of the United States,
regardless of whether such vessel was built in the United States or
abroad.
(Sec. 302, 60 Stat. 1001; 22 U.S.C. 842)
(22 FR 10858, Dec. 27, 1957)
22 CFR 88.3 Services for foreign vessels.
The fees prescribed under the caption ''Services Relating to Vessels
and Seamen'' in the Tariff of Fees, Foreign Service of the United States
of America ( 22.1 of this chapter), shall be charged and collected for
services performed for foreign vessels.
(Sec. 302, 60 Stat. 1001; 22 U.S.C. 842)
(22 FR 10858, Dec. 27, 1957)
22 CFR 88.3 Pt. 89
22 CFR 88.3 PART 89 -- PROHIBITIONS ON LONGSHORE WORK BY U.S. NATIONALS
22 CFR 89.1 Prohibitions on Longshore work by U.S. nationals; listing
by country.
The Secretary of State has determined that, in the following
countries, longshore work by crewmembers aboard United States vessels is
prohibited by law, regulation, or in practice, with respect to the
particular activities noted:
(a) All longshore activities.
(a) Loading and discharge of cargo.
(a) Handling of cargo or ballast in connection with the loading or
discharge of a ship, including rigging of ship's gear, unless there is
insufficient shore labor.
(b) Exceptions: Operation of self discharging equipment and other
automatic loading/unloading mechanisms.
(a) Cargo loading and discharge.
(b) Exception: Operation of cargo-related machinery on board the
ship.
(a) Loading and unloading cargo vessels and handling of containers.
(b) Exception: Operation of shipboard cranes to load and offload
containers.
(a) Movement of cargo.
(b) Lashing or unlashing of containers.
(c) Operation of cargo related equipment, whether or not on board the
ship.
(d) Activities performed by cargo checkers, tally clerks, watchmen,
and coopers.
(a) Loading and discharge of cargo from and in any sea-going vessels
coming to any dock, wharf, quay, stage, jetty or pier.
(b) Handling of mooring lines.
(c) Exceptions: Shipboard activities including opening hatches and
rigging ship's gear; loading or discharge of cargo when the equipment
or cargoes require special handling; and loading or discharge of other
cargoes, by special agreement with port authorities.
(a) Any and all functions relating to the loading and unloading of
cargo and other tasks appropriate to a port, whether on board boats and
ships in the port or in the dock area, including the operation of
cargo-related equipment, whether or not integral to the vessel,
including hatches and rigging of ship's gear.
(b) Exceptions:
(1) Placement and removal of mooring ropes from dock bitts and
operation of the capstans aboard the vessel, when under the control of
the harbor pilot; and
(2) Doing a vessel's mess and purveying alongside the ship with the
provisions, loading and placement of the provisions in the ship's larder
or stores.
(a) All longshore activities.
(a) All activities related to the loading and discharge of cargo,
including operation of cargo-related equipment integral to the vessel.
(a) All longshore activities.
(a) Operation of loading and unloading equipment affixed to the pier.
(a) All longshore activities.
(a) Cargo loading and unloading activities not on board the ship.
(a) Port operations, including the loading and discharge of cargo,
the operation of equipment, whether on the ship or not, and the handling
of lines.
(a) All loading and unloading of ocean-going ships.
(b) Exception: Movement of personal belongings and machinery
belonging to the ship.
(a) All longshore activities on shore without a labor permit.
(a) All port operations except for the opening of hatches and
entrances to ship storage areas.
(a) All longshore activities.
(a) All longshore activities, including loading and discharge of
cargo, handling of containers, operation of cranes, hoisting machinery
and roll-on/roll-off equipment.
(b) Exception: Handling of toxic or hazardous materials, with
clearances obtained through the national port authority prior to entry
into port.
(a) All on-board activities relating to loading and discharge of
cargo and operation of cargo-related equipment, including rigging of
derricks, and opening and closing of hatches.
(b) All movement of cargo on shore.
(c) Berthing vessels and handling of mooring lines on dock when the
vessel is made fast or let go.
(a) All longshore activities, including opening of hatches, rigging
of ship's gear and line handling, as long as there are Indonesian
longshoremen available.
(b) Exceptions: Activities for which local workers lack the
requisite skills; in an emergency situation, duties ordinarily
performed by longshoremen; and loading and discharge of hazardous
chemicals at industrial ports if no Indonesian workers are available for
the job.
(a) All longshore activities, including loading and unloading of
cargo, operation of cargo-related equipment, and handling of mooring
lines.
(b) Exception: Jobs related to the maintenance of the ship itself.
(a) All longshore activities, including operation of on board
equipment and the loading and discharge of new automobiles.
(d) Exceptions:
(1) Operation of automated loading and discharge equipment on board
the vessel and associated manual activities, including loading and
discharging containers from container vessels manually or with automatic
or semi-automatic spreaders,
(2) Operation and movement of fixed or mobile mechanical equipment
owned or leased by port companies and used for operations.
(3) Ancillary activities connected with documenting goods,
(4) Restoration of packaging,
(5) All activities, including moving goods, carried out within areas
operated under a concession granted by the port authority,
(6) Activities strictly connected with the operation and security of
navigation, or otherwise within the competence of the crew,
(7) Handling of the lifts on ferries,
(8) Preparation of on board derricks, winches and cranes,
(9) Opening and closing of hatches,
(10) Loading and discharge operations related to barges from LASH
vessels,
(11) Installation of bulkheads to secure cargo,
(12) Lashing and unlashing operations, and
(13) Securing of cargo.
(a) Activities normally carried out by stevedores, linesmen, gangmen
or longshoremen, including:
(1) All on-shore activities dealing with the handling and placement
of cargo;
(2) All movement of cargo from or onto ships whether by gangplank or
crane;
(3) All stacking and slinging of pallets within the ship's cargo
holds;
(4) Mooring and unmooring of ships, including handling of mooring
lines aboard ships; and
(5) Any other activity involving the discharge of cargo into Jamaica.
(b) All activities associated with the discharge of grain and loading
of grain products, with the exception of handling of on-board machinery
to keep the ship righted.
(c) Exception: Direction of supervisors by the ship's officers only
insofar as necessary to identify which cargo is to be palletized,
shifted, or off-loaded.
(a) All longshore activities.
(a) All longshore activities.
(a) All longshore activities.
(a) All longshore activities.
(b) Exception: Supervision by the vessel's master or loadmaster.
(a) Handling of any product, crates, boxes, bales or containers
destined for unloading.
(b) Exception: Any shipboard activities not relating to loading or
discharge operations and not having any commercial character, including
opening hatches, rigging of ship's gear and line handling.
(a) All longshore activities.
(a) Port services and cargo loading and discharge.
(b) Exception: Handling of cargo only while it remains on the
vessel.
(a) Longshore work without a labor permit, including loading or
discharge of cargo, handling of containers or any other activity not
related to a crewman's job on the ship or to basic ship repair.
(b) Exceptions: Opening of hatches, rigging of the ship's gear and
handling of lines aboard ship.
(a) All longshore activities.
(b) Exceptions: Shipboard activities other than opening of hatches;
with prior approval from Ministry of Communications officials, loading
or discharge of special cargoes with on-board equipment in cases where
dockside equipment operated by longshoremen cannot safely moved the
cargoes.
(a) All longshore activities.
(a) All operations associated with loading or unloading cargo and
complementary operations within the port area, including lashing.
(b) Expections:
(1) Opening and closing of hatches;
(2) Rigging of ship's gear;
(3) Handling of lines;
(4) Military vessels or the operation of military material in areas
under military jurisdiction;
(5) The supply of bulk operating fuels and lubricating oils to a
ship;
(6) The movement of spare parts, supplies, ship's stores, fuels and
lubricants when the quantities to be moved are less than three tons per
vessels;
(7) The loading, unloading and transfer of fuels and bulk liquid
petroleum products;
(8) The loading, unloading and transfer of chemical products whose
characteristics require special handling;
(9) The loading, unloading and packing of fresh, refrigerated or
frozen fish from a fishing vessel, except when such cargo is listed on
the manifest; and
(10) The movement of goods and materials within naval construction
and repair yards or petroleum terminals.
(a) All longshore activities not on board the ship.
(a) All longshore activities.
(a) All longshore activities on shore.
(a) Cargo handling without a license issued by the port authority.
(a) Longshore operations, including any loading, offloading, stowage
and transfer of goods within port intended for maritime transport by
ship.
(b) Exceptions include:
(1) Handling of goods, material, and machinery belonging to the port
authorities;
(2) Material of the Ministry of Defense unless operations are carried
out by a stowage company;
(3) Mail loading and offloading;
(4) Private vehicles offloaded by owners or drivers and complementary
grip tasks carried out by ship's crew;
(5) Offloading, transport to storage and complementary work of fresh
fish from ships of less than 100 gross tons capacity or those above this
size under special contract when carried out by the crew;
(6) Operations carried out within the port directly related to
processing plants, industrial zones or canning factories, as long as
they are not carried out by a stowage company;
(7) Handling of personal belongings of passengers and crewmembers;
(8) Loading and offloading of maintenance goods as long as it does
not require hiring additional personnel or operations carried out by
pipelines;
(9) The use of cranes and tractor devices not assigned to port
operations as long as they are used by their regular personnel; and
(10) Driving, coupling and coupling tractor devices to load and
unload trailers as long as transport is carried out without interruption
from outside of the port area until their loading, or from the ship to
the outside of the port area.
(a) All longshore activities.
(b) Exceptions: With a waiver granted by the Minister of Ports and
Shipping upon application through the ports authority, handling of long
lines of ships awaiting unloading and other activities under exceptional
circumstances.
(a) Loading and discharge activities, including opening of hatches
and rigging of ship's gear.
(b) Handling of mooring lines on the dock for all vessels.
(c) Exceptions: Loading and discharge of cargo if the longshoremen
cannot handle the cranes of a particular ship; and operation of
automatic hatch opening equipment that longshoremen are unable to
operate.
(a) All longshore activities, including opening of hatches, riggings
ship's gear and line handling once the ship has berthed.
(b) Exception: Operation of onboard cargo machinery integral to the
ship.
(a) Handling of mooring lines on the dock.
(a) All longshore activities, including loading and discharge of
cargo; lashing and unlashing of containers; operation of cargo-related
equipment, unless the required skill is unavailable at port; and
activities normally performed by cargo checkers, tally clerks and
watchmen.
(a) All longshore or dock activities, including the operation of
on-board hoists.
(a) Work done on the pier, including mooring, cargo handling, crane
operations and ground vehicle transportation.
(b) Exceptions: activities on board vessels to assist in loading and
discharge of cargo.
(a) All longshore activities, including the opening of hatches,
rigging of ship's gear and line handling.
(b) Exception: loading and discharge of cargo where Uruguayan
workers cannot operate on board loading cranes.
(a) All longshore activities.
(8 U.S.C. 1288, Pub. L. 010-649, 104 Stat. 4878)
(56 FR 66974, Dec. 27, 1991; 57 FR 1385, Jan. 14, 1992)
22 CFR 89.1 SUBCHAPTER J -- LEGAL AND RELATED SERVICES
22 CFR 89.1 PART 91 -- IMPORT CONTROLS
Sec.
91.1 Answering inquiries regarding tariff acts and custom
regulations.
91.2 Furnishing samples to collectors of customs or appraising
officers.
91.3 Assistance to Customs and Tariff Commission representatives.
91.4 Alcoholic liquors on vessels of not over 500 tons.
Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.
Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.
22 CFR 91.1 Answering inquiries regarding tariff acts and customs
regulations.
In replying to inquiries received from exporters, travelers, or other
interested parties, concerning tariff acts or customs regulations,
consular officers shall refrain from giving, or appearing to give,
decisions pertaining to matters upon which hey are not competent to
pass.
22 CFR 91.2 Furnishing samples to collectors of customs or appraising
officers.
Upon the receipt of a request therefor from a collector of customs or
appraising officer of the Government of the United States, a consular
officer shall procure and forward samples of merchandise being imported
or offered for importation into the United States from his particular
district.
22 CFR 91.3 Assistance to Customs and Tariff Commission
representatives.
Consular officers shall render all proper assistance to Customs and
Tariff Commission representatives abroad to aid them in the performance
of their official duties.
22 CFR 91.4 Alcoholic liquors on vessels of not over 500 tons.
(a) Upon request of interested shippers or masters of vessels at
ports in the consular district other than the place where the consular
office is situated, consular officers shall designate one or more
reputable individuals residing in each such port, as authorized persons
to witness the signatures of the masters of vessels of not over 500 net
tons when affixed to declarations covering shipments of alcoholic
liquors destined to the United States, and to issue certificates
therefor as contemplated by section 7 of the Anti-Smuggling Act of 1935
(49 Stat. 520; 19 U.S.C. 1707). Any person so designated by a consular
officer to issue such certificates shall state in each of his
certificates that he has no interest in the shipment described therein.
Having delivered the original document to the master, he shall forward
the duplicate to the consular office for retention.
(b) Consular officers shall, with respect to declarations of masters
of vessels of not over 500 net tons in instances in which the port of
shipment is the same place as, or conveniently near to, the location of
the consular office, supply their certifications directly as
contemplated by the said section of the Anti-Smuggling Act. They shall
retain, over the interval prescribed in the applicable records
retirement schedule, a copy of each document so certified by them. They
shall similarly retain the copies of the certifications supplied by
authorized persons in outlying ports of the consular district, as set
forth in the preceding subsection.
(c) This section, read together with 4.13, Title 19, of the Code of
Federal Regulations, comprises the joint regulations contemplated for
issuance by the Secretary of State and the Secretary of the Treasury
under section 7 of the Anti-Smuggling Act of 1935.
(32 FR 12588, Aug. 30, 1967)
22 CFR 91.4 Pt. 92
22 CFR 91.4 PART 92 -- NOTARIAL AND RELATED SERVICES
Sec.
92.1 Definitions.
92.2 Description of notarial functions of the Foreign Service;
record of acts.
92.3 Consular districts.
92.4 Authority of officers of the Foreign Service under the Federal
law.
92.5 Acceptability of notarial acts under State or territorial law.
92.6 Authority of officers of the Foreign Service under international
practice.
92.7 Responsibility of officers of the Foreign Service.
92.8 Compliance with request for notarial services.
92.9 Refusals of requests for notarial services.
92.10 Specific waiver in notarial certificate.
92.11 Preparation of legal documents.
92.12 Necessity for certification of notarial acts.
92.13 Form of notarial certificate.
92.14 Venue on notarial certificates.
92.15 Signing notarial certificate.
92.16 Sealing the notarial certificate.
92.17 Fastening of pages.
92.18 Oaths and affirmations defined.
92.19 Administering an oath.
92.20 Administering an affirmation.
92.21 Notarial certificate to oath or affirmation.
92.22 Affidavit defined.
92.23 Taking an affidavit.
92.24 Usual form of affidavit.
92.25 Title of affidavit.
92.26 Venue on affidavit.
92.27 Affiant's allegations in affidavit.
92.28 Signature of affiant on affidavit.
92.29 Oath or affirmation to affidavit.
92.30 Acknowledgment defined.
92.31 Taking an acknowledgment.
92.32 Notarial certificate to acknowledgment.
92.33 Execution of certificate of acknowledgment.
92.34 Fastening certificate to instrument.
92.35 Errors in certificate of acknowledgment.
92.36 Authentication defined.
92.37 Authentication procedure.
92.38 Forms of certificate of authentication.
92.39 Authenticating foreign public documents (Federal procedures).
92.40 Authentication of foreign extradition papers.
92.41 Limitations to be observed in authenticating documents.
92.42 Certification of copies of foreign records relating to land
titles.
92.43 Fees for notarial services and authentications.
92.44 Fees for protesting nonpayment of bills of exchange.
92.48 No-fee services.
92.49 Deposition defined.
92.50 Use of depositions in court actions.
92.51 Methods of taking depositions in foreign countries.
92.52 ''Deposition on notice'' defined.
92.53 ''Commission to take depositions'' defined.
92.54 ''Letters rogatory'' defined.
92.55 Consular authority and responsibility for taking depositions.
92.56 Summary of procedure for taking depositions.
92.57 Oral examination of witnesses.
92.58 Examination on basis of written interrogatories.
92.59 Recording of objections.
92.60 Examination procedures.
92.61 Transcription and signing of record of examination.
92.62 Captioning and certifying depositions.
92.63 Arrangement of papers.
92.64 Filing depositions.
92.65 Depositions to prove genuineness of foreign documents.
92.66 Depositions taken before foreign officials or other persons in
a foreign country.
92.67 Taking of depositions in United States pursuant to foreign
letters rogatory.
92.68 Foreign Service fees and incidental costs in the taking of
evidence.
92.69 Charges payable to foreign officials, witnesses, foreign
counsel, and interpreters.
92.70 Special fees for depositions in connection with foreign
documents.
92.71 Fees for letters rogatory executed by officials in the United
States.
92.72 Services in connection with patents and patent applications.
92.73 Services in connection with trademark registrations.
92.74 Services in connection with United States securities or
interests therein.
92.75 Services in connection with income tax returns.
92.76 Copying documents.
92.77 Recording documents.
92.78 Translating documents.
92.79 Procuring copies of foreign public documents.
92.80 Obtaining American vital statistics records.
92.81 Performance of legal services.
92.82 Recommending attorneys or notaries.
92.84 Legal process defined.
92.85 Service of legal process usually prohibited.
92.86 Consular responsibility for serving subpoenas.
92.87 Consular responsibility for serving orders to show cause.
92.88 Consular procedure.
92.89 Fees for service of legal process.
92.90 Delivering documents pertaining to the revocation of
naturalization.
92.91 Service of documents at request of Congressional committees.
92.92 Service of legal process under provisions of State law.
92.93 Notarial services or authentications connected with service of
process by other persons.
92.94 Replying to inquiries regarding service of process or other
documents.
92.95 Transportation of witnesses to the United States.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842, unless
otherwise noted.
Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.
22 CFR 91.4 Introduction
22 CFR 92.1 Definitions.
(a) In the United States the term notary or notary public means a
public officer qualified and bonded under the laws of a particular
jurisdiction for the performance of notarial acts, usually in connection
with the execution of some document.
(b) The term notarial act means an act recognized by law or usage as
pertaining to the office of a notary public.
(c) The term notarial certificate may be defined as the signed and
sealed statement to which a ''notarial act'' is almost invariably
reduced. The ''notarial certificate'' attests to the performance of the
act by the notary, and may be an independent document or as in general
American notarial practice, may be placed on or attached to the
notarized document.
22 CFR 92.2 Description of notarial functions of the Foreign Service;
record of acts.
The notarial function of officers of the Foreign Service is similar
to the function of a notary public in the United States. See 22.5 of
this chapter concerning the giving of receipts for fees collected and
the maintenances of a register serving the same purposes as the record
which notaries are usually expected or required to keep of their
official acts.
22 CFR 92.3 Consular districts.
Where consular districts have been established, the geographic limits
of the district determine the area in which notarial acts can be
performed by the consular officer. See 92.41 (b) regarding
authentication of the seals and signatures of foreign officials outside
the consular district.
(27 FR 12616, Dec. 20, 1962)
22 CFR 92.4 Authority of officers of the Foreign Service under the
Federal law.
(a) Every secretary of embassy or legation is authorized, whenever he
is required or deems it necessary or proper so to do, at the post, port,
place, or within the limits of his embassy or legation, and every
consular officer of the United States is required whenever application
is made to him therefor within the limits of his consulate, to
administer to or take from any person any oath, affirmation, affidavit,
or deposition, and to perform any notarial act which any notary public
required or authorized by law to do within the United States (R.S. 1750;
secs. 3 and 7 of the act of April 5, 1906, 34 Stat. 99; 22 U.S.C.
1195, 1203). The language ''within the limits of his consulate'' is
construed to mean within the geographic limits of his consular district.
With respect to notarial acts performed away from his office, see
92.7. Notarial acts shall be performed only if their performance is
authorized by treaty provisions or is permitted by the laws or
authorities of the country wherein the officer is stationed.
(b) These acts may be performed for any person regardless of
nationality so long as the document in connection with which the
notarial service is required is for use within the jurisdiction of the
Federal Government of the United States or within the jurisdiction of
one of the States or Territories of the United States. (However, see
also 92.6.) Within the Federal jurisdiction of the United States, these
acts, when certified under the hand and seal of office of the notarizing
officer are valid and of like force and effect as if performed by any
duly authorized and competent person within the United States.
Documents bearing the seal and signature of the notarizing officer are
admissible in evidence within the Federal jurisdiction without proof of
any such seal or signature being genuine or of the official character of
the notarizing officer. (R.S. 1750, sec. 3, 34 Stat. 100; 22 U.S.C.
1203.)
(c) Every secretary of embassy or legation and every consular officer
may perform notarial acts for use in countries occupied by the United
States or under its administrative jurisdiction, provided the officer
has reason to believe that his notarial act will be recognized in the
country where it is intended to be used. These acts may be performed
for United States citizens and for nationals of the occupied or
administered countries, who reside outside such countries, except in
areas where another government is protecting the interests of the
occupied or administered country.
(d) Chiefs of mission, that is, ambassadors and ministers, have no
authority under Federal law to perform notarial acts except in
connection with the authentication of extradition papers (see 92.40).
(e) Consular agents have authority to perform notarial services but
acting consular agents do not.
(22 FR 10858, Dec. 27, 1957, as amended at 27 FR 12616, Dec. 20,
1962)
22 CFR 92.5 Acceptability of notarial acts under State or territorial
law.
The acceptability within the jurisdiction of a State or Territory of
the United States of a certificate of a notarial act performed by an
officer of the Foreign Service depends upon the laws of the State or
Territory. Most States and Territories recognize the notarial acts of
United States diplomatic or consular officers, whether such acts are
performed for United States citizens or for aliens. However, some of
the States and Territories have, by statute, specified the legal
requirements which notarized documents or notarial certificates must
meet. For this reason, before performing a notarial act for use in a
State or Territory, an officer of the Foreign Service should, unless he
is already certain of the provisions of the pertinent state or
territorial law, consult the appropriate law digest to determine whether
it may be expected that the certificate of his notarial act will be
acceptable in the State or Territory. If, in a particular instance, no
statutory provision on this point can be found, the applicant for the
notarial service should be informed of that fact, preferably in writing,
and a statement regarding the giving of this information should be
entered in the Record of Fees.
22 CFR 92.6 Authority of officers of the Foreign Service under
international practice.
Although such services are not mandatory, officers of the Foreign
Service may as a courtesy, perform notarial acts for use in countries
with which the United States has formal diplomatic and consular
relations. Generally the applicant for such service will be a United
States citizen or a national of the country in which the notarized
document will be used. The officer's compliance with a request for a
notarial service of this type should be based on the reasonableness of
the request and the absence of any apparent irregularity. When an
officer finds it advisable to do so, he may question the applicant to
such extent as may be necessary to assure himself.
(a) That his notarial certificate may reasonably be expected to
satisfy the legal requirements of the country in which the notarized
document will be used;
(b) That the notarial service is legally necessary and cannot be
obtained otherwise than through the United States diplomatic or consular
officer without loss or serious inconvenience to the applicant; and
(c) That the notarial certifcate will be used solely for a
well-defined purpose, as represented by the applicant for the service.
(See also 92.4(c) regarding notarial services for use in countries
occupied by the United States or under its administrative jurisdiction.)
22 CFR 92.7 Responsibility of officers of the Foreign Service.
(a) As a rule notarial acts should be performed at the consular
office. Where required by the circumstances of a particular case and
subject to the reasonableness of the request notarial acts may be
performed elsewhere within the limits of the consulate subject to the
assessment of the applicable fees under subheading ''Services Rendered
Outside of Office'' of the Tariff of Fees ( 22.1(a) of this chapter), as
well as to payment by the interested party of the officer's expenses in
going to the place where the service is performed and returning to his
office ( 22.1(b) of this chapter).
(b) As indicated in 92.4, 92.5, and 92.6, the authority of
secretaries of embassy or legation as well as consular officers to
perform notarial acts is generally recognized. However, the function is
essentially consular, and notarial powers are in practice exercised by
diplomatic officers only in the absence of a consular officer.
Performance of notarial acts by an officer assigned in dual diplomatic
and consular capacity shall be under his consular commission, except in
special circumstances. For ease of reference, the term ''consular
officer'' is used in this part in discussing the notarial function of
the Foreign Service.
(27 FR 12616, Dec. 20, 1962)
22 CFR 92.7 General Notarial Procedures
22 CFR 92.8 Compliance with request for notarial services.
A consular officer should comply with all proper requests for the
performance of notarial services within the limitations prescribed in
this part. (See particularly 92.3 to 92.7). Moreover, as a
representative of the United States Government, the consular officer,
when acting in a notarial capacity, should take great care to prevent
the use of his official seal in furthering any unlawful or clearly
improper purpose. (See 92.9 regarding refusal to perform notarial
services in certain cases.)
22 CFR 92.9 Refusals of requests for notarial services.
(a) A consular officer should refuse requests for notarial services,
the performance of which is not authorized by treaty provisions or
permitted by the laws or authorities of the country in which he is
stationed. (See 92.4(a).) Also, a consular officer should refuse to
perform notarial acts for use in transactions which may from time to
time be prohibited by law or by regulations of the United States
Government such, for example, as regulations based on the ''Trading With
the Enemy Act of 1917,'' as amended.
(b) A consular officer is also authorized to refuse to perform a
notarial act if he had reasonable grounds for believing that the
document in connection with which his notarial act is requested will be
used for a purpose patently unlawful, improper or inimical to the best
interests of the United States. Requests for notarial services should
be refused only after the most careful deliberation.
22 CFR 92.10 Specific waiver in notarial certificate.
If the consular officer has reason to believe that material
statements in a document presented for notarization are false, and if no
basis exists for refusing the notarial service in accordance with 92.9,
he may consider the advisability of informing the applicant that he will
perform the service only with a specific waiver of responsibility
included in the notarial certificate. Furthermore, a consular officer
may, in his discretion, add to the specific waiver in the notarial
certificate a statement of verifiable facts known to him, which will
reveal the falsity of material in the document. However, normally a
consular officer shall exercise great caution not to limit the general
privilege of a United States citizen while abroad to execute under oath
any statement he sees fit to make, including mistaken, unnecessary, and
even frivolous statements: Provided, That substantial and compelling
reasons do not exist which impel restraining action on the part of the
consular officer. On the other hand, experience has shown the
desirability of including, as standard practice, a specific waiver of
responsibility in all authentications ( 92.38) executed in connection
with divorce proceedings.
22 CFR 92.11 Preparation of legal documents.
(a) By attorneys. When a document has been prepared by an attorney
for signature, a consular officer should not question the form of
document unless it is obviously incorrect.
(b) By consular officers. A consular officer should not usually
prepare for private persons legal documents for signature and
notarization. (However, see the provisions in 92.24 regarding the
preparation of affidavits.) When asked to perform such a service, the
consular officer should explain that the preparation of legal forms is
normally the task of an attorney, that the forms used and the purposes
for which they are used vary widely from jurisdiction to jurisdiction
and that he could not guarantee the legal effectiveness of any document
which he might prepare. The person desiring the preparation of a legal
document should be referred to such publications as Jones Legal Forms
and The Lawyers Directory with the suggestion that he select or adapt
the form which appears best suited to his needs. The consular officer
may, in his discretion, arrange to have a member of his office staff
type the document. If the document is typed in the Foreign Service
office, the fee for copying shall be collected as prescribed under the
caption ''Copying and Recording'' of the Tariff of Fees, Foreign Service
of the United States of America ( 22.1 of this chapter).
22 CFR 92.12 Necessity for certification of notarial acts.
A consular officer must execute a written certificate attesting to
the performance of a notarial act. This certificate may be inserted on
or appended to the notarized document (see 92.17 regarding the
fastening of sheets). The certificate evidences the performance of the
notarial act. Failure to execute this certificate renders the notarial
act legally ineffective. Each notarial act should be evidenced by a
separate certificate; two or more distinct notarial acts should not be
attested to by one certificate.
22 CFR 92.13 Form of notarial certificate.
The form of a notarial certificate depends on the nature of the
notarial act it attests. (See 92.18 to 92.48 for discussions of the
various forms of notarial certificates.) Rules pertaining to venue, and
signing and sealing, are common to all notarial certificates.
22 CFR 92.14 Venue on notarial certificates.
(a) The term ''venue'' means the place where the certificate is
executed. The venue must be shown on all notarial certificates to
establish the qualifications and sphere of authority of the notarizing
officer to perform the notarial act. The items characteristic of a
typical venue, in the order of their appearance in the certificate, are
as follows:
(1) Name of the country (or dominion, Territory, colony, island, as
appropriate);
(2) Name of province or major administrative region (if none, this
may be omitted);
(3) Name of local community (city, town, or village);
(4) Name of the Foreign Service post.
(b) When a notarial act is performed, and the notarial certificate
executed, at a locality in a consular district other than the locality
in which the Foreign Service office is situated, the venue should
mention only the name of the country (or dominion, territory, colony,
island, as appropriate), and the name of the consular district.
(c) The venue used at a Foreign Service post which has not been
officially designated as an embassy, legation, consulate general,
consulate, or consular agency should bear the notation ''American
Consular Service'' in place of the post name.
22 CFR 92.15 Signing notarial certificate.
The notarizing officer should sign a notarial certificate on the
lower right-hand side. The name and full official title of the consular
officer should by typed, stamped with a rubber stamp, or printed in ink
on two separate lines immediately below his signature. When the
notarizing officer is assigned to a Foreign Service post in both a
diplomatic and consular capacity, he should use his consular title in
the notarial certificate. (See 92.7.)
22 CFR 92.16 Sealing the notarial certificate.
The notarizing officer should seal a notarial certificate with the
impression seal of the post on the lower left-hand side of the
certificate. A notarial certificate executed at a Foreign Service post
which has not been officially designated as an embassy, legation,
consulate general, consulate, or consular agency should be sealed with
an impression seal bearing the legend ''American Consular Service'' and
the name of the locality.
22 CFR 92.17 Fastening of pages.
When the instrument or document to which a notarial act relates
consists of more than one sheet, or when the notarial certificate will
be attached and not written on the document itself, the consular officer
should bring all the sheets comprising the document together under his
official seal.
22 CFR 92.17 Specific Notarial Acts
22 CFR 92.18 Oaths and affirmations defined.
(a) Oath. An oath is an outward pledge given by the person taking it
that his attestation or promise is made under an immediate sense of his
responsibility to God. In a broad sense the word ''oath'' includes all
forms of attestation by which a person signifies that he is bound in
conscience to perform an act faithfully and truly, and in this sense it
includes ''affirmation''.
(b) Affirmation. An affirmation is a solemn and formal declaration
or asseveration in the nature of an oath that a statement, or series of
statements, is true. When an oath is required or authorized by law, an
affirmation in lieu thereof may be taken by any person having
conscientious scruples against taking an oath. As a general rule, an
affirmation has the same legal force and effect as an oath.
22 CFR 92.19 Administering an oath.
The usual formula for administering an oath is as follows: The
officer administering the oath requests the person taking the oath to
raise his right hand while the officer repeats the following words:
''You do solemnly swear that the statements set forth in this paper
which you have here signed before me are true. So help you God.''
Whereupon the person taking the oath answers, ''I do.''
22 CFR 92.20 Administering an affirmation.
In administering an affirmation the procedure followed is generally
the same as in the case of an oath, but the formula is varied by the use
of the following words: ''You do solemnly, sincerely, and truly affirm
and declare that . . ., and this you do under the pains and penalties
of perjury.''
22 CFR 92.21 Notarial certificate to oath or affirmation.
The written statement attesting to the administration of an oath or
affirmation is known as a jurat. The jurat must be signed and sealed by
the notarizing officer (see 92.15 and 92.16 on signing and sealing
notarial certificates).
22 CFR 92.22 Affidavit defined.
An affidavit is a written declaration under oath made before some
person who has authority to administer oaths, without notice to any
adverse party that may exist. One test of the sufficiency of an
affidavit is whether it is so clear and certain that it will sustain an
indictment for perjury, if found to be false. An affidavit differs from
a deposition in that it is taken ex parte and without notice, while a
deposition is taken after notice has been furnished to the opposite
party, who is given an opportunity to cross-examine the witness.
22 CFR 92.23 Taking an affidavit.
The consular officer taking an affidavit should:
(a) Satisfy himself, as far as possible, that his notarial act will
be acceptable under the laws of the jurisdiction where the affidavit is
to be used (see 92.5);
(b) Require the personal appearance of the affiant at the time the
affidavit is taken;
(c) Require satisfactory identification of the affiant; and
(d) Administer the oath to the affiant before the affiant signs the
affidavit.
22 CFR 92.24 Usual form of affidavit.
Affidavits are usually drawn by competent attorneys or are set out in
established forms. The form and substantive requirements of an
affidavit depend principally upon the purpose for which it is made and
the statutes of the jurisdiction where it is intended to be used. When
a consular officer finds it necessary in the discharge of his official
duties to prepare an affidavit, or when he assists a private person in
preparing an affidavit (see 92.11(b)), he should, where possible,
consult the pertinent statutory provisions.
22 CFR 92.25 Title of affidavit.
Generally an affidavit taken for use in a pending cause must be
entitled in that cause so that it will show to what proceedings it is
intended to apply, and may support an indictment for perjury in case it
proves to be false. If there is no suit pending at the time the
affidavit is taken or if the affidavit is not to be used in any cause in
court, no title need be given.
22 CFR 92.26 Venue on affidavit.
The venue must always be given and should precede the body of the
affidavit. (See 92.14 regarding venue on notarial certificates
generally.)
22 CFR 92.27 Affiant's allegations in affidavit.
(a) Substance of allegations. Although a consular officer is
generally not responsible for the correctness of the form of an
affidavit or the manner in which the allegations therein are set forth
(see 92.11(a) regarding the preparation of legal documents by
attorneys; 92.11(b) regarding the preparation of legal documents by
consular officers; and 92.24 regarding the form of an affidavit), he
may, in appropriate instances, draw the affiant's attention to the
following generally accepted criteria as regards the substance of the
allegations:
(1) Material facts within the personal knowledge of the affiant
should be alleged directly and positively. Facts are not to be inferred
where the affiant has it in his power to state them positively and
fully.
(2) If the matters stated in the affiant's affidavit rest upon
information derived from others rather than on facts within his personal
knowledge, he should aver that such matters are true to the best of his
knowledge and belief.
(3) If the allegations made on information and belief are material,
the sources of information and grounds of belief should be set out and a
good reason given why a positive statement could not be made.
(4) If the conclusions of the affiant are drawn from the contents of
documents, such contents should be set out or exhibited, so that the
authority to whom the affidavit is presented may determine whether the
affiant's deductions are well founded.
(b) Veracity of allegations. Consular officers are not required to
examine into the truth of the affiant's allegations or to pass upon any
contentious questions involved. In many instances the matters referred
to in an affidavit will be of a technical or special nature beyond the
officer's general knowledge or experience. However, he may, in certain
circumstances, refuse to take an affidavit. (See 92.9 regarding the
types of situations in which an officer might properly refuse to perform
a notarial service; also see 92.10 regarding the waiver and other
statements which may be included in a notarial certificate where
evidence exists of falsity in the affiant's declaration.)
22 CFR 92.28 Signature of affiant on affidavit.
The signature of the affiant is indispensable. The affiant should
always sign the affidavit in the presence of the notarizing officer.
22 CFR 92.29 Oath or affirmation to affidavit.
Affidavits made before consular officers must be sworn to or affirmed
(see 92.23(d)).
22 CFR 92.30 Acknowledgment defined.
An acknowledgment is a proceeding by which a person who has executed
an instrument goes before a competent officer or court and declares it
to be his act and deed to entitle it to be recorded or to be received in
evidence without further proof of execution. An acknowledgment is
almost never made under oath and should not be confused with an oath
(see 92.18(a) for definition of oath). Moreover, an acknowledgment is
not the same as an attestation, the latter being the act of witnessing
the execution of an instrument and then signing it as a witness.
Instruments requiring acknowledgment generally are those relating to
land, such as deeds, mortgages, leases, contracts for the sale of land,
and so on.
22 CFR 92.31 Taking an acknowledgment.
(a) Officers' assurance of acceptability of notarial act. A consular
officer taking an acknowledgment should, if possible, ascertain the
requirements of the jurisdiction in which the acknowledged document is
to be used and execute the certificate in accordance with those
requirements. Not all States or Territories will accept certificates of
acknowledgment executed by consular officers other than consuls.
Therefore consuls general, vice consuls, and consular agents who are
called upon to perform this notarial act should consult the applicable
State or territorial law to ascertain whether their certificates of
acknowledgment will be acceptable. (See 92.5 regarding acceptability
of consular notarial acts under state or territorial law.) Furthermore,
public policy generally forbids that the act of taking and certifying an
acknowledgment be performed by a person financially or beneficially
interested in the transaction to which the acknowledged document
relates. Consular officers should keep this point in mind, especially
in connection with acknowledgments by members of their families.
(b) Personal appearance of grantor(s). A consular officer taking an
acknowledgment should always require the personal appearance of the
grantor(s), i.e., the person or persons who have signed the instrument
to be acknowledged. Since the officer states in his certificate that
the parties did personally appear before him, failure to observe this
requirement invalidates the notarial act and makes the officer liable to
the charge of negligence and of having executed a false certificate. A
consular officer should never take an acknowledgment by telephone.
(c) Satisfactory identification of grantor(s). The consular officer
must be certain of the identity of the parties making an acknowledgment.
If he is not personally acquainted with the parties, he should require
from each some evidence of identity, such as a passport, police identity
card, or the like. The laws of some States and Territories require that
the identity of an acknowledger be proved by the oath of one or more
''credible witnesses'', and that a statement regarding the proving of
identity in this manner be included in the certificate of
acknowledgment. (See 92.32(b) regarding forms of certificates of
acknowledgment generally.) Mere introduction of a person not known to
the notarizing officer, without further proof of identity, is not
considered adequate identification for acknowledgment purposes.
(d) Explanation of contents of instrument. The consular officer must
assure himself that the person acknowledging an instrument understands
the nature of the instrument. If the person does not understand it, the
officer is legally and morally bound to explain the instrument in such a
way as to make the person who has signed it realize the character and
effect of his act. This duty is particularly important where the signer
of a document has little or no knowledge of the language in which the
document is written.
(e) Acknowledgments of married women. Some of the States still
require that a married woman who has executed an instrument of
conveyance jointly with her husband be examined separately by the
notarizing officer at the time the acknowledgments of the couple are
taken. Consular officers should consult the applicable statutory
provisions before taking the acknowledgments of a husband and wife to a
document which they have both executed.
22 CFR 92.32 Notarial certificate to acknowledgment.
(a) Title. The notarial certificate evidencing the taking of an
acknowledgment is commonly known as a ''certificate of acknowledgment''
or sometimes simply as an ''acknowledgment.''
(b) Form. The form of a certificate of acknowledgment varies widely
depending on the laws of the jurisdiction where the acknowledged
document is intended to be used, the purpose for which the document is
intended, and the legal position of the persons who have executed it.
Instruments to be acknowledged are frequently prepared on printed forms,
the entire contract or deed being on one sheet together with the
certificate of acknowledgment. Often the document, including the
certificate of acknowledgment, is drawn up in advance by an attorney.
In these cases, the consular officer may use the certificate which is
already on the document, making whatever modifications are manifestly
required to show that the certificate was executed by a consular
officer. However, if he finds it necessary to prepare the certificate
of acknowledgment, the officer should consult the appropriate reference
work for guidance as to the proper form. When no prescribed form can be
found, the officer should use the language in Form FS-88. Certificate
of Acknowledgment of Execution of an Instrument, inserting the
certificate immediately at the close of the deed on the last page if
space permits, or, if a separate sheet is necessary, using the printed
Form FS-88 itself.
22 CFR 92.33 Execution of certificate of acknowledgment.
(a) When certificate should be executed. A consular officer should
execute a certificate of acknowledgment immediately after the parties to
the instrument have made their acknowledgment. Allowing several days or
weeks to elapse between the time the acknowledgment is made and the
certificate executed is undesirable, even though the officer may
remember the acknowledgment act.
(b) Venue. The venue must be shown as prescribed in 92.14.
(c) Date. The date in the certificate must be the date the
acknowledgment was made. This is not necessarily the same as the date
the instrument was executed. In fact, there is no reason why an
instrument may not be acknowledged a year or more after the date of its
execution, or at different times and places by various grantors.
(d) Names of parties. The name or names of the person or persons
making the acknowledgment should appear in the certificate in the same
form as they are set out in the acknowledged document, and in the same
form as their signature on the instrument.
(e) Additional statements. When executing a certificate of
acknowledgment on Form FS-88, the notarizing officer may include any
necessary additional statements in the blank space below the body of the
certificate.
(f) Signing and sealing certificate. The certificate of
acknowledgment shall be signed and sealed as prescribed in 92.15 and
92.16.
22 CFR 92.34 Fastening certificate to instrument.
The proper place for the certificate of acknowledgment is after the
signature of the parties to the instrument. If the instrument is a
printed form, the certificate will almost invariably be a part of the
form. When Form FS-88 is used or when the certificate must be prepared
on a sheet separate from the instrument, it should be fastened to the
instrument as the last sheet. The method of fastening notarial
certificates is prescribed in 92.17.
22 CFR 92.35 Errors in certificate of acknowledgment.
A consular officer having taken an acknowledgment of an instrument
and made a certificate of that fact cannot afterwards amend or change
his certificate for the purpose of correcting a mistake. This can be
done only by the parties reacknowledging the instrument. However,
typographical errors may be corrected by striking out the erroneous
characters and inserting the correct ones above. Such changes should be
initiated by the parties who executed the instrument and by the
notarizing officer.
22 CFR 92.36 Authentication defined.
An authentication is a certification of the genuineness of the
official character, i.e., signature and seal, or position of a foreign
official. It is an act done with the intention of causing a document
which has been executed or issued in one jurisdiction to be recognized
in another jurisdiction. Documents which may require authentication
include legal instruments notarized by foreign notaries or other
officials, and copies of public records, such as birth, death, and
marriage certificates, issued by foreign record keepers.
22 CFR 92.37 Authentication procedure.
(a) The consular officer must compare the foreign official's seal and
signature on the document he is asked to authenticate with a specimen of
the same official's seal and signature on file either in the Foreign
Service office or in a foreign public office to which he has access. If
no specimen is available to the consular officer, he should require that
each signature and seal be authenticated by some higher official or
officials of the foreign government until there appears on the document
a seal and signature which he can compare with a specimen available to
him. However, this procedure of having a document authenticated by a
series of foreign officials should be followed only where unusual
circumstances, or the laws or regulations of the foreign country require
it.
(b) Where the State law requires the consular officer's certificate
of authentication to show that the foreign official is empowered to
perform a particular act, such as administering an oath or taking an
acknowledgment, the consular officer must verify the fact that the
foreign official is so empowered.
(c) When the consular officer has satisfactorily identified the
foreign seal and signature (and, where required, has verified the
authority of the foreign official to perform a particular act), he may
then execute a certificate of authentication, either placing this
certificate on the document itself if space is available, or appending
it to the document on a separate sheet (see 92.17 on the fastening of
notarial certificates).
22 CFR 92.38 Forms of certificate of authentication.
The form of a certificate of authentication depends on the statutory
requirements of the jurisdiction where the authenticated document will
be used (see 92.39 regarding the provisions of Federal law). Before
authenticating a document for use in a State or Territory of the United
States, a consular officer should consult the pertinent law digest to
ascertain what specific requirements must be met, or he should be guided
by any special information he may receive from the attorney or other
person requesting the document with regard to the applicable statutory
requirements. (See 92.41(e) regarding material which should not be in
the certificate of authentication.) If no provisions relating to
authentications can be found in a particular State or Territorial law
digest, and in the absence of any special information from the attorney
or other person requesting the document, the officer should prepare the
certificate of authentication in the form which seems best suited to the
needs of the case. When in his opinion the circumstances seem to
warrant, and always in connection with certificates of marriage or
divorce decrees, a consular officer should include in the body of his
certificate of authentication a qualifying statement reading as follows:
''For the contents of the annexed document I assume no
responsibility.''
22 CFR 92.39 Authenticating foreign public documents (Federal
procedures).
(a) A copy of a foreign public document intended to be used as
evidence within the jurisdiction of the Federal Government of the United
States must be authenticated in accordance with the provisions of
section 1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat.
948, sec. 92(b), 63 Stat. 103; 28 U.S.C. 1741). This provision of
Federal law provides that a copy of any foreign document of record, or
on file in a public office of a foreign country or political subdivision
thereof, if certified, by the lawful custodian thereof, may be admitted
in evidence when authenticated by a certificate of a United States
consular officer resident in the foreign country, under the seal of his
office.
(b) The consular officer's certificate should indicate that the copy
has been certified by the lawful custodian.
(c) In the absence of a consular officer of the United States as an
officer resident in the State of the Vatican City, a copy of any
document of record or on file in a public office of said State of the
Vatican City, certified by the lawful custodian of such document may be
authenticated by a consular officer of the United States resident in
Rome, Italy (22 U.S.C. 1204).
22 CFR 92.40 Authentication of foreign extradition papers.
Foreign extradition papers are authenticated by chiefs of mission.
22 CFR 92.41 Limitations to be observed in authenticating documents.
(a) Unknown seals and signatures. A consular officer should not
authenticate a seal and signature not known to him. See 92.37(a)
regarding the necessity for making a comparison with a specimen seal and
signature.
(b) Foreign officials outside consular district. A consular officer
should not authenticate the seals and signatures of foreign officials
outside his consular district.
(c) Officials in the United States. Consular officers are not
competent to authenticate the seals and signatures of notaries public or
other officials in the United States. However, diplomatic and consular
officers stationed at a United States diplomatic mission may certify to
the seal of the Department of State (not the signature of the Secretary
of State) if this is requested or required in particular cases by the
national authorities of the foreign country.
(d) Photostat copies. Consular officers should not authenticate
facsimiles of signatures and seals on photographic reproductions of
documents. They may, however, authenticate original signatures and
seals on such photographic reproductions.
(e) Matters outside consular officer's knowledge. A consular officer
should not include in his certificate of authentication statements which
are not within his power or knowledge to make. Since consular officers
are not expected to be familiar with the provisions of foreign law,
except in a general sense, they are especially cautioned not to certify
that a document has been executed or certified in accordance with
foreign law, nor to certify that a document is a valid document in a
foreign country.
(f) United States officials in foreign countries. An authentication
by a United States consular officer is performed primarily to cause the
official characters and positions of foreign officials to be known and
recognized in the United States. Consular officers should not,
therefore, undertake to authenticate the seals and signatures of other
United States officials who may be residing in their consular districts.
(g) Officers of the Foreign Service in other countries. An officer
of the Foreign Service stationed in one country is not expected to
authenticate the signature or seal of an officer of the Foreign Service
stationed in another country. When it is necessary for the seal and
signature of an officer of the Foreign Service to be authenticated, such
authentication will be done in the Department of State. An official of
a foreign government requesting the authentication of the seal and
signature of an officer of the United States Foreign Service who is, or
was, stationed in another country should be informed that the document
to be authenticated will have to be sent to the Department for this
purpose. Any document bearing the seal and signature of an officer of
the Foreign Service which is received at a Foreign Service post from a
person in the United States with the request that it be further
authenticated should be referred to the Department of State.
22 CFR 92.42 Certification of copies of foreign records relating to
land titles.
In certifying documents of the kind described in Title 28, section
1742, of the United States Code, diplomatic and consular officers of the
United States will conform to the Federal procedures for authenticating
foreign public documents ( 92.39), unless otherwise instructed in a
specific case.
22 CFR 92.43 Fees for notarial services and authentications.
The fees for administering an oath or affirmation and making a
certificate thereof, for the taking of an acknowledgment of the
execution of a document and executing a certificate thereof, for
certifying to the correctness of a copy of or an extract from a
document, official or private, for authenticating a foreign document, or
for the noting of a bill of exchange, certifying to protest, etc., are
as prescribed under the caption Notarial Services and Authentications in
the Tariff or Fees, Foreign Service of the United States of America (
22.1 of this chapter), unless the service is performed under a ''no
fee'' item of the same Tariff. If an oath or affirmation is
administered concurrently to several persons and only one consular
certificate (jurat) is executed, only one fee is collectible. If more
than one person joins in making an acknowledgment but only one
certificate is executed, only one fee shall be charged.
22 CFR 92.44 Fees for protesting nonpayment of bills of exchange.
The fee chargeable under item 55 of the Tariff of Fees, Foreign
Service of the United States of America ( 22.1 of this chapter) is the
same for each bill of exchange protested by the consular officer,
regardless of the number of parties (drawer or maker, and endorsers) to
whom ''notice of protest'' is sent at the request of the person
requiring the service. In addition to the fixed fee, the consular
officer should charge under item 85 for time spent outside the office in
presenting the negotiable instrument for acceptance or payment.
22 CFR 92.48 No-fee services.
The services at Foreign Service posts for which no fee is chargeable
are these designated by ''no fee'' entries in the Tariff of Fees,
Foreign Service of the United States of America ( 22.1 of this chapter).
22 CFR 92.48 Depositions and Letters Rogatory
22 CFR 92.49 Deposition defined.
A deposition is the testimony of a witness taken in writing under
oath or affirmation, before some designated or appointed person or
officer, in answer to interrogatories, oral or written. (For the
distinction between a deposition and an affidavit see 92.22.)
22 CFR 92.50 Use of depositions in court actions.
Generally depositions may be taken and used in all civil actions or
suits. In criminal cases in the United States, a deposition cannot be
used, unless a statute has been enacted which permits a defendant in a
criminal case to have a deposition taken in his own behalf, or unless
the defendant consents to the taking of a deposition by the State for
use by the prosecution. (For exception in connection with the proving
of foreign documents for use in criminal actions, see 92.65.)
22 CFR 92.51 Methods of taking depositions in foreign countries.
Rule 28(b) of the Rules of Civil Procedure for the District Courts of
the United States provides that depositions may be taken in foreign
countries by any of the three following methods:
(a) On notice before a secretary of embassy or legation, consular
general, consul, vice consul, or consular agent of the United States;
(b) By commission, before such person or officer as may be appointed
by the commission;
(c) Under letters rogatory, before an appropriate foreign court.
Rule 15 of the Federal Rules of Criminal Procedure provides that
depositions may be taken in the same manner as in civil cases, but only
upon order of court. The statutes of the States define the methods
which may be employed for taking depositions in foreign countries for
use in State courts and the provisions vary from one jurisdiction to
another. However, provision is usually made for one or all of the
aforementioned methods.
22 CFR 92.52 ''Deposition on notice'' defined.
A ''deposition on notice'' is a deposition taken before a competent
official after reasonable notice has been given in writing by the party
or attorney proposing to take such deposition to the opposing party or
attorney of record. Under the Federal law, diplomatic and consular
officers are defined as competent officials for taking depositions on
notice in foreign countries (see 92.51). This method of taking a
deposition does not necessarily involve the issuance of a commission or
other court order.
22 CFR 92.53 ''Commission to take depositions'' defined.
A ''commission to take depositions'' is a written authority issued by
a court of justice, or by a quasi-judicial body, or a body acting in
such capacity, giving power to take the testimony of witnesses who
cannot appear personally to be examined in the court or before the body
issuing the commission. In Federal practice, a commission to take
depositions is issued only when necessary or convenient, on application
and notice. The commission indicates the action or hearing in which the
depositions are intended to be used, and the person or persons required
to take the depositions, usually by name or descriptive title (see
92.55 for manner of designating consular officers). Normally a
commission is accompanied by detailed instructions for its execution.
22 CFR 92.54 ''Letters rogatory'' defined.
In its broader sense in international practice, the term ''letters
rogatory'' denotes a formal request from a court in which an action is
pending, to a foreign court to perform some judicial act. Examples are
requests for the taking of evidence, the serving of a summons, subpoena,
or other legal notice, or the execution of a civil judgment. In United
States usage, letters rogatory have been commonly utilized only for the
purpose of obtaining evidence. Requests rest entirely upon the comity
of courts toward each other, and customarily embody a promise of
reciprocity. The legal sufficiency of documents executed in foreign
countries for use in judicial proceedings in the United States, and the
validity of the execution, are matters for determination by the
competent judicial authorities of the American jurisdiction where the
proceedings are held, subject to the applicable laws of that
jurisdiction. See 92.66 for procedures in the use of letters rogatory
requesting the taking of depositions in foreign jurisdictions.
22 CFR 92.55 Consular authority and responsibility for taking
depositions.
(a) Requests to take depositions or designations to execute
commissions to take depositions. Any United States consular officer may
be requested to take a deposition on notice, or designated to execute a
commission to take depositions. A commission or notice should, if
possible, identify the officer who is to take the depositions by his
official title only as in the following manner: ''Any Consul or Vice
Consul of the United States of America at (name of locality)''. The
consular officer responsible for the performance of notarial acts at a
post should act on a request to take a deposition on notice, or should
execute the commission, when the documents are drawn in this manner,
provided local law does not preclude such action. However, when the
officer (or officers) is designated by name as well as by title, only
the officer (or officers) so designated may take the depositions. In
either instance, the officer must be a disinterested party. Rule 28(c)
of the Rules of Civil Procedure for the District Courts of the United
States prohibits the taking of a deposition before a person who is a
relative, employee, attorney, or counsel of any of the parties, or who
is a relative or employee of such attorney or counsel, or who is
financially interested in the action.
(b) Authority in Federal law. For the basic provisions of law
controlling the taking of all depositions for use in either State or
Federal courts, for a statement of the necessity to charge the
appropriate fee, and for a statement of the penalty for the giving of
false evidence, see Title 22, sections 1195 and 1203, of the United
States Code. For the more detailed provisions which control
particularly the taking of depositions for courts of the United States
(i.e., for the Federal courts) see the Rules of Civil Procedure for the
District courts of the United States, which appear in Title 28 of the
United States Code, following section 2072 thereof. See also Rules of
the Court of Claims of the United States, following section 2071 of
Title 28. For the provisions of law which govern particularly the
taking of depositions to prove the genuineness of foreign documents
which it is desired to introduce in evidence in any criminal action or
proceeding in a United States (i.e., Federal) court see Title 18,
sections 3491 through 3496, of the United States Code.
(c) Procedure where laws of the foreign country do not permit the
taking of depositions. In countries where the right to take depositions
is not secured by treaty, consular officers may take depositions only if
the laws or authorities of the national government will permit them to
do so. Consular officers in countries where the taking of depositions
is not permitted who receive notices or commissions for taking
depositions should return the documents to the parties from whom they
are received explaining why they are returning them, and indicating what
other method or methods may be available for obtaining the depositions,
whether by letters rogatory or otherwise.
22 CFR 92.56 Summary of procedure for taking depositions.
In taking a deposition on notice or executing a commission to take
depositions, a consular officer should conform to any statutory
enactments on the subject in the jurisdiction in which the depositions
will be used. He should also comply with any special instructions which
accompany the request for a deposition on notice or a commission.
Unless otherwise directed by statutory enactments or special
instructions, the officer should proceed as follows in taking
depositions:
(a) Request the witnesses, whose testimony is needed, to appear
before him; or, at the request of any party to the action or
proceeding, request designated persons to supply him or the requesting
party with needed records or documents in their possession, or copies
thereof;
(b) When necessary, act as interpreter or translater, or see that
arrangements are made for some qualified person to act in this capacity;
(c) Before the testimony is taken, administer oaths (or affirmations
in lieu thereof) to the interpreter or translator (if there is one), to
the stenographer taking down the testimony, and to each witness;
(d) Have the witnesses examined in accordance with the procedure
described in 92.57 to 92.60;
(e) Either record, or have recorded in his presence and under his
direction, the testimony of the witnesses;
(f) Take the testimony, or have it taken, stenographically in
question-and-answer form and transcribed (see 92.58) unless the parties
to the action agree otherwise (rules 30(c) and 31(b), Rules of Civil
Procedure for the District Courts of the United States);
(g) Be actually present throughout the examination of the witnesses,
but recess the examination for reasonable periods of time and for
sufficient reasons;
(h) Mark or cause to be marked, by identifying exhibit numbers or
letters, all documents identified by a witness or counsel and submitted
for the record.
22 CFR 92.57 Oral examination of witnesses.
When a witness is examined on the basis of oral interrogatories, the
counsel for the party requesting the deposition has the right to conduct
a direct examination of the witness without interruption except in the
form of objection by opposing counsel. The opposing counsel has the
same right on cross-examination. Cross-examination may be followed by
redirect and recross-examinations until the interrogation is complete.
The consular officer taking the deposition should endeavor to restrain
counsel from indulging in lengthy colloquies, digressions, or asides,
and from attempts to intimidate or mislead the witness. The consular
officer has no authority to sustain or overrule objections but should
have them recorded as provided in 92.59. Instead of taking part in the
oral examination of a witness, the parties notified of the taking of a
deposition may transmit written interrogatories to the consular officer.
The consular officer should then question the witness on the basis of
the written interrogatories and should record the answers verbatim.
(Rules 30 (c) and 31 (b), Rules of Civil Procedure for the District
Courts of the United States.)
22 CFR 92.58 Examination on basis of written interrogatories.
Written interrogatories are usually divided into three parts:
(a) The direct interrogatories or interrogatories in chief;
(b) The cross-interrogatories; and
(c) The redirect interrogatories.
Recross-interrogatories sometimes follow redirect interrogatories.
The consular officer should not furnish the witness with a copy of the
interrogatories in advance of the questioning, nor should he allow the
witness to examine the interrogatories in advance of the questioning.
Although it may be necessary for the officer, when communicating with
the witness for the purpose of asking him to appear to testify, to
indicate in general terms the nature of the evidence which is being
sought, this information should not be given in such detail as to permit
the witness to formulate his answers to the interrogatories prior to his
appearance before the consular officer. The officer taking the
deposition should put the interrogatories to the witness separately and
in order. The written interrogatories should not be repeated in the
record (unless special instructions to that effect are given), but an
appropriate reference should be made thereto. These references should,
of course, be followed by the witness' answers. All of the written
interrogatories must be put to the witness, even though at some point
during the examination the witness disclaims further knowledge of the
subject. When counsel for all of the parties attend an examination
conducted on written interrogatories, the consular officer may, all
counsel having consented thereto, permit oral examination of the witness
following the close of the examination upon written interrogatories.
The oral examination should be conducted in the same manner and order as
if not preceded by an examination upon written interrogatories.
22 CFR 92.59 Recording of objections.
All objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the manner of
taking it, or to the evidence presented, or to the conduct of any party,
and any other objection to the proceedings must be noted in the
deposition. Evidence objected to will be taken subject to the
objections. (Rules 30 (c) and 31 (b), Rules of Civil Procedure for the
District Courts of the United States.)
22 CFR 92.60 Examination procedures.
(a) Explaining interrogatory to witness. If the witness does not
understand what an interrogatory means, the consular officer should
explain it to him, if possible, but only so as to get an answer strictly
responsive to the interrogatory.
(b) Refreshing memory by reference to written records. A witness may
be permitted to refresh his memory by referring to notes, papers or
other documents. The consular officer should have such occurrence noted
in the record of the testimony together with a statement of his opinion
as to whether the witness was using the notes, papers or other documents
to refresh his memory or for the sake of testifying to matters not then
of his personal knowledge.
(c) Conferring with counsel. When the witness confers with counsel
before answering any interrogatory, the consular officer should have
that fact noted in the record of the testimony.
(d) Examining witness as to personal knowledge. The consular officer
may at any time during the examination of a witness propound such
inquiries as may be necessary to satisfy himself whether the witness is
testifying from his personal knowledge of the subject matter of the
examination.
(e) Witness not to leave officer's presence. The consular officer
should request the witness not to leave his presence during the
examination, except during the recesses for meals, rest, etc.,
authorized in 92.56 (g). Failure of the witness to comply with this
request must be noted in the record.
22 CFR 92.61 Transcription and signing of record of examination.
After the examination of a witness is completed, the stenographic
record of the examination must be fully transcribed and the
transcription attached securely to any document or documents to which
the testimony in the record pertains. (See 92.63 regarding the
arrangement of papers.) The transcribed deposition must then be
submitted to the witness for examination and read to or by him, unless
such examination and reading are waived by the witness and by the
parties to the action. Any changes in form or substance desired by the
witness should be entered upon the deposition by the consular officer
with a statement of the reasons given by the witness for making the
changes. The witness should then sign the transcript of his deposition
and should initial in the margin each correction made at his request.
However, the signature and initials of the witness may be omitted if the
parties to the action by stipulation waive the signing or if the witness
is ill, refuses to sign, or cannot be found. If the deposition is not
signed by the witness, the consular officer should sign it and should
state on the record the reason for his action, i.e., the waiver of the
parties, the illness or absence of the witness, or the refusal of the
witness to sign, giving the reasons for such refusal. The deposition
may then be used as though signed by the witness except when, on the
motion to suppress, the court holds that the reasons given for the
refusal to sign require the rejection of the deposition in whole or in
part. (Rules 30 (e) and 31 (b), Rules of Civil Procedure for the
District Courts of the United States.)
22 CFR 92.62 Captioning and certifying depositions.
The consular officer should prepare a caption for every deposition;
should certify on the deposition that the witness was duly sworn by him
and that the deposition is a true record of the testimony given by the
witness; and should sign and seal the certification in the manner
prescribed in 92.15 and 92.16. (Rules 30 (f) (1) and 31 (b), Rules of
Civil Procedures for the District Courts of the United States.)
22 CFR 92.63 Arrangement of papers.
Unless special instructions to the contrary are received, the various
papers comprising the completed record of the depositions should usually
be arranged in the following order from bottom to top:
(a) Commission to take depositions (or notice of taking depositions),
with interrogatories, exhibits, and other supporting documents fastened
thereto.
(b) Statement of fees charged, if one is prepared on a separate
sheet.
(c) Record of the responses of the various witnesses, including any
exhibits the witnesses may submit.
(d) Closing certificate.
All of these papers should be fastened together with ribbon, the ends
of which should be secured beneath the consular officer's seal affixed
to the closing certificate.
22 CFR 92.64 Filing depositions.
(a) Preparation and transmission of envelope. The notice or
commission, the interrogatories, the record of the witnesses' answers,
the exhibits, and all other documents and papers pertaining to the
depositions should be fastened together (see 92.63 regarding the
arrangement of papers) and should be enclosed in an envelope sealed with
the wax engraving seal of the post. The envelope should be endorsed
with the title of the action and should be marked and addressed. The
sealed envelope should then be transmitted to the court in which the
action is pending.
(b) Furnishing copies. The original completed depositions should not
be sent to any of the parties to the action or to their counsel.
However, the consular officer may furnish a copy of a deposition to the
deponent or to any party to the action upon the payment of the copying
fee and if certification is desired under official seal that the copy is
a true copy, the certification fee prescribed in the Tariff of Fees,
Foreign Service of the United States of America ( 22.1 of this chapter).
22 CFR 92.65 Depositions to prove genuineness of foreign documents.
(a) Authority to execute commission. Under the provisions of section
1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat. 834, sec.
53, 63 Stat. 96; 18 U.S.C. 3492), a diplomatic or consular officer may
be commissioned by an United States court to take the testimony of a
witness in a foreign country either on oral or written interrogatories,
or partly on oral and partly on written interrogatories, for the purpose
of determining the genuineness of any foreign document (any book, paper,
statement, record, account, writing, or other document, or any portion
thereof, of whatever character and in whatever form, as well as any copy
thereof equally with the original, which is not in the United States)
which it is desired to introduce in evidence in any criminal action or
proceeding in any United States court under the provisions of section 1
of the act of June 25, 1948 (sec. 1, 62 Stat. 945; 28 U.S.C. 1732).
Such testimony may also be taken to determine whether the foreign
document was made in the regular course of business and whether it was
the regular course of business to make such document. The term
''business'' includes business, profession, occupation, and calling of
every kind. (Sec. 1, 62 Stat. 945, 28 U.S.C. 1732.)
(b) Disqualification to execute commission. Any diplomatic or
consular officer to whom a commission is addressed to take testimony,
who is interested in the outcome of the criminal action or proceeding in
which the foreign documents in question are intended to be used or who
has participated in the prosecution of such action or proceeding,
whether by investigations, preparation of evidence, or otherwise, may be
disqualified on his own motion or on that of the United States or any
other party to such criminal action or proceeding made to the court from
which the commission issued at any time prior to the execution thereof.
If, after notice and hearing, the court grants the motion, it will
instruct the diplomatic or consular officer thus disqualified to send
the commission to any other diplomatic or consular officer of the United
States named by the court, and such other officer should execute the
commission according to its terms and will for all purposes be deemed
the officer to whom the commission is addressed. (Section 1, 62 Stat.
834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492.)
(c) Execution and return of commission. (1) Commissions issued in
criminal cases under the authority of the act of June 25, 1948, as
amended, to take testimony in connection with foreign documents should
be executed and returned by officers of the Foreign Service in
accordance with section 1 of that act, as amended (sec. l, 62 Stat.
835; 18 U.S.C. 3493, 3494), and in accordance with any special
instructions which may accompany the commission. For details not
covered by such section or by special instructions, officers of the
Foreign Service should be guided by such instructions as may be issued
by the Department of State in connection with the taking of depositions
generally. (See 92.55 to 92.64.)
(2) Section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 835; 18
U.S.C. 3493) provides that every person whose testimony is taken should
be cautioned and sworn to testify the whole truth and should be
carefully examined. The testimony should be reduced to writing or
typewriting by the consular officer, or by some person under his
personal supervision, or by the witness himself in the presence of the
consular officer, and by no other person. After it has been reduced to
writing or typewriting, the testimony must be signed by the witness.
Every foreign document with respect to which testimony is taken must be
annexed to such testimony and must be signed by each witness who appears
for the purpose of establishing the genuineness of such document.
(3) When counsel for all of the parties attend the examination of any
witness whose testimony will be taken on written interrogatories, they
may consent that oral interrogatories, in addition to those accompanying
the commission, be put to the witness. The consular officer taking the
testimony should require an interpreter to be present when his services
are needed or are requested by any party or his attorney. (Section 1,
62 Stat. 835, 18 U.S.C. 3493.)
(4) Section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 835; 18
U.S.C. 3494) provides that the consular officer, who executes any
commission authorized under the same section, as amended (sec. 1, 62
Stat. 834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492) and who is satisfied,
upon all the testimony taken, that a foreign document is genuine, should
certify such document to be genuine under the seal of his office. This
certification must include a statement that the officer is not subject
to disqualification under the provisions of section 1 of the act of June
25, 1948, as amended (sec. 1, 62 Stat. 834, sec. 53, 63 Stat. 96; 18
U.S.C. 3492). For purposes of assessment of fees, the issuance of this
certificate shall be regarded as a part of the consular service of
executing the commission, and no separate fee shall be charged for the
certificate.
(5) The consular officer should then forward such foreign documents,
together with the record of all testimony taken and the commission which
has been executed, to the Department of State for transmission to the
clerk of the court from which the commission issued. (Section 1, 62
Stat. 835; 18 U.S.C. 3494.) (See 92.64 regarding the filing of
depositions generally.)
(Sec. 303, 60 Stat. 1002, 62 Stat. 836; 22 U.S.C. 843, 18 U.S.C.
3496, E.O. 10307; 16 FR 11907, 3 CFR 1949-1953 Comp., page 387)
22 CFR 92.66 Depositions taken before foreign officials or other
persons in a foreign country.
(a) Customary practice. Under Federal law (Rule 28(b), Rules of
Civil Procedure for the District Courts of the United States) and under
the laws of some of the States, a commission to take depositions can be
issued to a foreign official or to a private person in a foreign
country. However, this method is rarely used; commissions are
generally issued to U.S. consular officers. In those countries where
American consular officers are not permitted to take testimony (see
92.55(c)) and where depositions must be taken before a foreign
authority, letters rogatory are usually issued to a foreign court. The
Department of State has been authorized (62 Stat. 949; 28 U.S.C. 1781)
directly or through suitable channels to receive a letter rogatory
issued, or request made, by a tribunal in the United States, to transmit
it to the foreign or international tribunal, officer, or agency to whom
it is addressed, and to receive and return it after execution. In
Federal practice letters rogatory to request the taking of evidence are
issued only when necessary or convenient, on application and notice, and
on such terms and with such directions as are just and appropriate (Rule
28(b), Rules of Civil Procedure for the District Courts of the United
States). When the name of the foreign court is not known, letters
rogatory are usually addressed ''To the appropriate Judicial Authority
in (here name the country).''
(b) Transmission of letters rogatory to foreign officials. Letters
rogatory may often be sent direct from court to court. However, some
foreign governments require that these requests for judicial aid be
submitted through the diplomatic channel (i.e., that they be submitted
to the Ministry for Foreign Affairs by the American diplomatic
representative). A usual requirement is that the letters rogatory as
well as the interrogatories and other papers included with them be
accompanied by a complete translation into the language (or into one of
the languages) of the country of execution. Another requirement is that
provision be made for the payment of fees and expenses. Inquiries from
interested parties or their attorneys, or from American courts, as to
customary procedural requirements in given countries, may be addressed
direct to the respective American embassies and legations in foreign
capitals, or to the Department of State, Washington, D.C. 20520.
(c) Return of letters rogatory executed by foreign officials. (1)
Letters rogatory executed by foreign officials are returned through the
same channel by which they were initially transmitted. When such
documents are returned to a United States diplomatic mission, the
responsible officer should endorse thereon a certificate stating the
date and place of their receipt. This certificate should be appended to
the documents as a separate sheet. The officer should then enclose the
documents in an envelope sealed with the wax engraving seal of the post
and bearing an endorsement indicating the title of the action to which
the letters rogatory pertain. The name and address of the American
judicial body from which the letters rogatory issued should also be
placed on the envelope.
(2) If the executed letters rogatory are returned to the diplomatic
mission from the Foreign Office in an envelope bearing the seals of the
foreign judicial authority who took the testimony, that sealed envelope
should not be opened at the mission. The responsible officer should
place a certificate on the envelope showing the date it was received at
his office and indicating that it is being forwarded in the same
condition as received from the foreign authorities. He should then
place that sealed envelope in a second envelope, sealed with the wax
engraving seal of the post, and bearing the title of the action and the
name and address of the American judicial body from which the letters
rogatory issued.
(3) Charges should be made for executing either of the certificates
mentioned in paragraphs (c) (1) and (2) of this section, as prescribed
by item 67 of the Tariff of Fees, Foreign Service of the United States
of America ( 22.1 of this chapter), unless the service is classifiable
in a no-fee category under the exemption for Federal agencies and
corporations (item 83 of the same Tariff).
(4) The sealed letters rogatory should be transmitted by appropriate
means to the court in which the action is pending. See Title 28,
section 1781, of the United States Code concerning the manner of making
return to a court of the United States (Federal court).
(d) Transmission of commissions to foreign officials or other
persons. A commission to take depositions which is addressed to an
official or person in a foreign country other than a United States
diplomatic or consular officer may be sent directly to the person
designated. However, if such a commission is sent to the United States
diplomatic mission in the country where the depositions are intended to
be taken, it should be forwarded to the Foreign Office for transmission
to the person appointed in the commission. If sent to a United States
consular office, the commission may be forwarded by that office direct
to the person designated, or, if the consular officer deems it more
advisable to do so, he may send the commission to the United States
diplomatic mission for transmission through the medium of the Foreign
Office.
(22 FR 10858, Dec. 27, 1957, as amended at 32 FR 11775, Aug. 16,
1967)
22 CFR 92.67 Taking of depositions in United States pursuant to foreign
letters rogatory.
(a) Authority and procedure. The taking of depositions by authority
of State courts for use in the courts of foreign countries is governed
by the laws of the individual States. As respects Federal practice, the
district court of the district in which a person resides or is found may
order him to give his testimony or statement or to produce a document or
other thing for use in a proceeding in a foreign or international
tribunal. The order may be made pursuant to a letter rogatory issued,
or request made, by a foreign or international tribunal or upon the
application of any interested person and may direct that the testimony
or statement be given, or the document or other thing be produced,
before a person appointed by the court. By virtue of his appointment,
the person appointed has power to administer any necessary oath and take
the testimony or statement. The order may prescribe the practice and
procedure, which may be in whole or part the practice and procedure of
the foreign country or the interntational tribunal, for taking the
testimony or statement or producing the document or other thing. To the
extent that the order does not prescribe otherwise, the testimony or
statement shall be taken, and the document or other thing produced, in
accordance with the Federal Rules of Civil Procedure. A person may not
be compelled to give his testimony or statement or to produce a document
or other thing in violation of any legally applicable privilege. This
does not preclude a person within the United States from voluntarily
giving his testimony or statement, or producing a document or other
thing, for use in a proceeding in a foreign or international tribunal
before any person or in any manner acceptable to him (28 U.S.C. 1782).
(b) Formulation of letters rogatory. A letter rogatory customarily
states the nature of the judicial assistance sought by the originating
court, prays that this assistance be extended, incorporates an
undertaking of future reciprocity in like circumstances, and makes some
provision for payment of fees and costs entailed in its execution. As
respects Federal practice, it is not required that a letter rogatory
emanating from a foreign court be authenticated by a diplomatic or
consular officer of the United States or that it be submitted through
the diplomatic channel; the seal of the originating court suffices.
When testimony is desired, the letter rogatory should state whether it
is intended to be taken upon oral or written interrogatories. If the
party on whose behalf the testimony is intended to be taken will not be
represented by counsel, written interrogatories should be attached.
Except where manifestly unneeded (e.g. a Spanish-language letter
rogatory intended for execution in Puerto Rico) or dispensed with by
arrangement with the court, letters rogatory and interrogatories in a
foreign language should be accompanied by English translations.
(c) Addressing letters rogatory. To avert uncertainties and minimize
possibilities for refusal of courts to comply with requests contained in
letters rogatory in the form in which they are presented, it is
advisable that counsel for the parties in whose behalf testimony is
sought ascertain in advance if possible, with the assistance of
correspondent counsel in the United States or that of a consular
representative or agent of his nation in the United States, the exact
title of the court, Federal or State as the case may be, which will be
prepared to entertain the letter rogatory. In Federal practice the
following form of address is acceptable:
The U.S. District Court for the ------ ---------------- (e.g.
Northern, Southern) District of -------------------- (State)
-------------------- (City) ------------------ , (State)
In instances where it is not feasible to ascertain the correct form
of address at the time of preparation of the letter rogatory, and it
will be left for counsel in the United States, or a consul or agent in
the United States of the nation of origin of the letter rogatory to
effect its transmission to an appropriate court, the following form may
be used: ''To the Appropriate Judicial Authority at (name of
locality).''
(d) Submitting letters rogatory to courts in the United States. A
letter rogatory may be submitted to the clerk of the court of which
assistance is sought, either in person or by mail. This may be direct
by international mail from the originating foreign court.
Alternatively, submission to the clerk of court may be effected in
person or by mail by any party to the action at law or his attorney or
agent, or by a consular officer or agent in the United States of the
foreign national concerned. Finally, the Department of State has been
authorized (62 Stat. 949; 28 U.S.C. 1781) to receive a letter rogatory
issued, or request made, by a foreign or international tribunal, to
transmit it to the tribunal, officer, or agency in the United States to
whom it is addressed, and to receive and return it after execution.
This authorization does not preclude --
(1) The transmittal of a letter rogatory or request directly from a
foreign or international tribunal to the tribunal, officer, or agency in
the United States to whom it is addressed and its return in the same
manner; or
(2) The transmittal of a letter rogatory or request directly from a
tribunal in the United States to the foreign or international tribunal,
officer, or agency to whom it is addressed and its return in the same
manner.
(32 FR 11775, Aug. 16, 1967)
22 CFR 92.68 Foreign Service fees and incidental costs in the taking of
evidence.
The fees for the taking of evidence by officers of the Foreign
Service are as prescribed by the Tariff or Fees, Foreign Service of the
United States of America ( 22.1 of this chapter), under the caption
''Services Relating to the Taking of Evidence,'' unless the service is
performed for official use, which comes under the caption ''Exemption
for Federal Agencies and Corporations'' of the same Tariff. See 22.6
of this chapter concerning the requirement for advance deposit of
estimated fees. When the party on whose behalf the evidence is sought
or his local representative is not present to effect direct payment of
such incidental costs as postage or travel of witnesses, the advance
deposit required by the officer shall be in an amount estimated as
sufficient to cover these in addition to the fees proper. The same rule
shall apply to charges for interpreting or for the taking and
transcribing of a stenographic record when performed commercially rather
than by staff members at Tariff of Fee rates.
22 CFR 92.69 Charges payable to foreign officials, witnesses, foreign
counsel, and interpreters.
(a) Execution of letters rogatory by foreign officials. Procedures
for payment of foreign costs will be by arrangement with the foreign
authorities.
(b) Execution of commissions by foreign officials or other persons
abroad. Procedure for the payment of foreign costs will be as arranged,
by the tribunal requiring the evidence, with its commissioner.
(c) Witness fees and allowances when depositions are taken pursuant
to commission from a Federal court. A witness attending in any court of
the United States, or before a United States commissioner, or before any
person authorized to take his deposition pursuant to any rule or order
of a cut of the United States, shall receive $4 for each day's
attendance and for the time necessarily occupied in going to and
returning from the same, and 8 cents per mile for going from and
returning to his place of residence. Witnesses who are not salaried
employees of the Government and who are not in custody and who attend at
points so far removed from their respective residence as to prohibit
return thereto from day to day shall be entitled to an additional
allowance of $8 per day for expenses of subsistence, including the time
necessarily occupied in going to and returning from the place of
attendance (28 U.S.C. 1821, Supp. IV). Witnesses giving depositions
before consular officers pursuant to a commission issued by the Federal
Court are entitled to these fees and allowances, and the officer shall
make payment thereof in the same manner as payment is made of other
expenses involved in the execution of the commission, charging the
advance deposit provided by the party at whose request the depositions
are taken (see 92.68). In any case to which the Government of the
United States, or an officer or agency thereof, is a party, the United
States marshal for the district will pay all fees of witnesses on the
certificate of the United States Attorney or Assistant United States
Attorney, and in the proceedings before a United States Commissioner, on
the certificate of such commissioner (28 U.S.C. 1825).
22 CFR 92.70 Special fees for depositions in connection with foreign
documents.
(a) Fees payable to witnesses. Each witness whose testimony is
obtained under a commission to take testimony in connection wtih foreign
documents for use in criminal cases shall be entitled to receive
compensation at the rate of $15 a day for each day of attendance, plus 8
cents a mile for going from his place of residence or business to the
place of examination, and returning, by the shortest feasible route (18
U.S.C. 3495 and 3496, and E.O. 10307, 3 CFR, 1949-1953 Comp.). When,
however it is necessary to procure the attendance of a witness on behalf
of the United States or an indigent party, an officer or agent of the
United States may negotiate with the witness to pay compensation at such
higher rate as may be approved by the Attorney General, plus the mileage
allowance stated above (5 U.S.C. 341). The expense of the compensation
and mileage of each witness will be borne by the party, or parties,
applying for the commission unless the commission is accompanied by an
order of court (18 U.S.C. 3495(b) that all fees, compensations, and
other expenses authorized by these regulations are chargeable to the
United States (18 U.S.C. 3495).
(b) Fee payable to counsel. Each counsel who represents a party to
the action or proceeding in the examination before the commissioner will
receive compensation for each day of attendance at a rate of not less
than $15 a day and not more than $50 a day, as agreed between him and
the party whom he represents, plus such actual and necessary expenses as
may be allowed by the commissioner upon verified statements filed with
him. If the commission is issued on application of the United States,
the compensation and expenses of counsel representing each party are
chargeable to the United States under section 3495(b) of Title 18 of the
United States Code (18 U.S.C. 3495 and 3496, and E.O. 10307, 3 CFR,
1949-1953 Comp.).
(c) Fees payable to interpreters and translators. Each interpreter
and translator employed by the commissioner under these regulations
shall receive an allowance of $10 a day, plus 8 cents a mile for going
from his place of residence or business to the place of examination and
returning, by the shortest feasible route. The compensation and mileage
of interpreters and translators shall be chargeable to the United
States.
(d) Time for paying fees. Witnesses, counsel, interpreters, and
translators will be paid, in accordance with the foregoing regulations,
by the commissioner at the conclusion of their services. Other expenses
authorized by these regulations will be paid by the commissioner as they
are incurred.
(e) Payment of fees by the United States. When it appears that the
commission was issued on application of the United States or when the
commission is accompanied by an order of court that all fees,
compensation, and other expenses authorized by these regulations are
chargeable to the United States under section 3495(b) of Title 18 of the
United States Code, the commissioner shall execute the commission
without charge for his service as commissioner in connection therewith.
The Commissioner shall pay witnesses, counsel, interpreter, or
translator, and other expenses authorized by these regulations through
the disbursing officer in his area in accordance with instructions which
will be issued in each case.
(f) Payment of fees by other parties. When fees, compensation, and
other expenses authorized by this section are chargeable to any party
other than the United States, the commissioner shall undertake the
execution of the commission only if such party deposits with the
Department of State or with the appropriate Foreign Service post, in
advance, an amount to be set by the court as apparently adequate to
defray all fees, compensation, and other expenses authorized by this
part. If the amount of the deposit is later found to be insufficient,
the depositor shall be so notified, and the commissioner shall retain
the commission and other papers until a sufficient supplemental amount
has been deposited. If the amount of the deposit exceeds the aggregate
amount of fees, compensation, and other expenses authorized by this
part, the excess shall be returned to the party, or parties, entitled
thereto. The commissioner shall pay witnesses, counsel, interpreter, or
translator, and other expenses authorized by this section, from the
proceeds of a check which the disbursing officer for his area will be
authorized to draw on the Treasurer of the United States.
22 CFR 92.71 Fees for letters rogatory executed by officials in the
United States.
Arrangements for the payment of fees should be made directly with the
court in the United States by the party in the foreign country at whose
request the depositions are taken, either through his legal
representative in the United States or through the appropriate
diplomatic or consular officer of his country in the United States.
(See 92.67 regarding the execution of letters rogatory in the United
States.)
22 CFR 92.71 Miscellaneous Notarial Services
22 CFR 92.72 Services in connection with patents and patent
applications.
(a) Affidavit of applicant. The form of the affidavit of an
applicant for a United States patent depends on who is making the
application, the type of invention, and the circumstances of the case.
Officers of the Foreign Service are not responsible for the correctness
of form of such affidavits, and should not endeavor to advise in their
preparation. Persons who inquire at a Foreign Service post regarding
the filing of patent applications may be referred to the pamphlet
entitled ''General Information Concerning Patents,'' if copies thereof
are available at the post.
(b) Oath or affirmation of applicant -- (1) Authority to administer
oath or affirmation. When an applicant for a patent resides in a
foreign country, his oath or affirmation may be made before any
diplomatic or consular officer of the United States authorized to
administer oaths, or before any officer having an official seal and
authorized to administer oaths in the foreign country in which the
applicant may be, whose authority shall be proved by certificate of a
diplomatic or consular officer of the United States (35 U.S.C. 115). See
paragraph (c) of this section regarding authentication of the authority
of a foreign official. A notary or other official in a foreign country
who is not authorized to administer oaths is not qualified to notarize
an application for a United States patent.
(2) Form of oath or affirmation. See 92.19 and 92.20 for usual
forms of oaths and affirmations.
(3) Execution of jurat. In executing the jurat, the officer should
carefully observe the following direction with regard to ribboning and
sealing: When the oath is taken before an officer in a country foreign
to the United States, all the application papers, except the drawings,
must be attached together and a ribbon passed one or more times through
all the sheets of the application, except the drawings, and the ends of
said ribbon brought together under the seal before the latter is affixed
and impressed, or each sheet must be impressed with the official seal of
the officer before whom the oath is taken. If the papers as filed are
not properly ribboned or each sheet impressed with the seal, the case
will be accepted for examination but before it is allowed, duplicate
papers, prepared in compliance with the foregoing sentence, must be
filed. (Rule 66, Rules of Practice of the United States Patent Office.)
(c) Authentication of authority of foreign official -- (1) Necessity
for authentication. When the affidavit required in connection with a
patent application been sworn to or affirmed before an official in a
foreign country other than a diplomatic or consular officer of the
United States, an officer of the Foreign Service authenticate the
authority of the official administering the oath or affirmation (35
U.S.C. 115). If the officer of the Foreign Service cannot authenticate
the oath or affirmation, the document should be authenticated by a
superior foreign official, or by a series of superior foreign officials
if necessary. The seal and signature of the foreign official who
affixes the last foreign authentication to the document should then be
authenticated by the officer of the Foreign Service.
(2) Use of permanent ink. All papers which will become a part of a
patent application filed in the United States Patent Office must be
legibly written or printed in permanent ink. (Rule 52, Rules of
Practice of the United States Patent Office.) Consular certificates of
authentication executed in connection with patent applications should
preferably be prepared on a typewriter; they should not be prepared on
a hectograph machine.
(d) Authority of a foreign executor or administrator acting for
deceased inventor. Legal representatives of deceased inventors and of
those under legal incapacity may make application for patent upon
compliance with the requirements and on the same terms and conditions
applicable to the inventor (35 U.S.C. 117). The rules of the Patent
Office require proof of the power or authority of the legal
representative. See paragraph (c) of this section for procedure for
authenticating the authority of a foreign official.
(e) Assignments of patents and applications for patents. An
application for a patent, or a patent, or any interest therein, may be
assigned in law by an instrument in writing. The applicant, or the
patentee, or his assigns or legal representatives, may grant and convey
an exclusive right under the application for patent, or under the
patent, to the whole or any specified part of the United States. Any
such assignment, grant, or conveyance of any application for patent, or
of any patent, may be acknowledged, in a foreign country, before ''a
diplomatic or consular officer of the United States or an officer
authorized to administer oaths whose authority is proved by a
certificate of a diplomatic or consular officer of the United States''
(35 U.S.C. 261). See 92.37 regarding authentication of the authority of
a foreign official.
(f) Fees. The fee for administering an oath, taking an
acknowledgment, or supplying an authentication, in connection with
patent applications is as prescribed in item 49 of the Tariff of Fees,
Foreign Service of the United States of America ( 22.1 of this chapter).
22 CFR 92.73 Services in connection with trademark registrations.
(a) Authority and responsibility. Acknowledgments and oaths required
in connection with applications for registration of trademarks may be
made, in a foreign country, before any diplomatic or consular officer of
the United States or before any official authorized to administer oaths
in the foreign country whose authority must be proved by a certificate
of a diplomatic or consular officer of the United States (15 U.S.C.
1061). The responsibility of officers of the Foreign Service in this
connection is the same as that where notarial services in connection
with patent applications are involved (see 92.72(a)). (See 92.72(c)
regarding the authentication of the authority of a foreign official who
performs a notarial service in connection with a patent application.)
(b) Fees. The fee for administering an oath, taking an
acknowledgment, or supplying an authentication, in connection with an
application for registration of a trademark, or with the assignment or
transfer of rights thereunder, is as prescribed in item 49 of the Tariff
of Fees, Foreign Service of the United States of America ( 22.1 of this
chapter).
22 CFR 92.74 Services in connection with United States securities or
interests therein.
(a) Authority and responsibility. Assignments or requests for
payment of United States securities, or securities for which the
Treasury Department acts as transfer agent, or powers of attorney in
connection therewith where authorized by the Treasury Department,
should, in a foreign country, be executed before a United States
consular or diplomatic officer. However, if they are executed before a
foreign official having power to administer oaths, the Treasury
Department requires that the official character and jurisdiction on the
foreign official be certified by a United States diplomatic or consular
officer. (See 92.36 to 92.41 on authentications.)
(b) Fees. Officers of the Foreign Service should charge no fees for
notarial services they perform in connection with the execution of
documents, including the certification or authentication of documents
where necessary, which affect United States securities or securities for
which the Treasury Department acts as transfer agent, or which may be
required in the collection of interest thereon. Item 58(b) of the
Tariff of Fees, Foreign Service of the United States of America ( 22.1
of this chapter) applies in cases of this nature.
22 CFR 92.75 Services in connection with income tax returns.
(a) Responsibility. Officers of the Foreign Service are authorized
to perform any and all notarial services which may be required in
connection with the execution of Federal, state, territorial, municipal,
or insular income tax returns. Officers should not give advice on the
preparation of tax returns.
(b) Fees. No charge under the caption ''Notarial Services and
Authentications'' should be made for services performed in connection
with the execution of tax returns for filing with the Federal or State
Governments or political subdivisions thereof. When requested, see item
58(d) of the Tariff of Fees, Foreign Service of the United States of
America ( 22.1 of this chapter).
22 CFR 92.75 Copying, Recording, Translating and Procuring Documents
22 CFR 92.76 Copying documents.
(a) Consular authority. The consular officer is authorized to have
documents, or abstracts therefrom, copied at a Foreign Service post, if
he deems it advisable and it is practicable to do so. This service
frequently is necessary in connection with the performance of certain
notarial acts, such as the certification of copies of documents.
(b) Fees. The charges for making copies of documents are as
prescribed by the Tariff of Fees, Foreign Service of the United States
of America ( 22.1 of this chapter), under the caption ''Copying and
Recording,'' unless the service is Performed for official use, which
comes under the caption Exemption for Federal Agencies and Corporations
of the same Tariff.
22 CFR 92.77 Recording documents.
(a) Consular authority. Consular officers may, at their discretion,
accept for recording in the Miscellaneous Record Book of the office
concerned unofficial documents such as deeds, leases, agreements, wills,
and so on. The object of this service is primarily to afford United
States citizens and interests the means of preserving, in official
custody, records of their business and other transactions where other
suitable facilities are not available locally for making such records.
The recording of unofficial documents is not a notarial service,
strictly speaking; however, the certifying of copies of documents thus
recorded is a notarial service.
(b) Recording procedure. Generally, before accepting a document for
recording the consular officer should require satisfactory proof of its
genuineness. The document should be copied, word for word, in the
Miscellaneous Record Book. At the close of the record a statement that
it is a true copy of the original should be entered and signed by the
consular officer who copies or compares the record. In the margin of
the first page where the document is recorded, the consular officer
should note the following data:
(1) By whom the document is presented for recording;
(2) On whose behalf the service is requested;
(3) Date and hour of presentation for recording;
(4) How the authenticity of the document was proved (where
appropriate); and
(5) The name of the person by whom recorded (in his proper signature)
and the name of the consular officer with whom compared (in his proper
signature).
(c) Certificate of recording. Ordinarily, a certificate of recording
need not be issued. The original document may simply be endorsed:
''Recorded at (name and location of consular office) this ---------- day
of ------------------ , 19 ---- , in (here insert appropriate reference
to volume of Miscellaneous Record Book)''. Below the endorsement should
appear the notation regarding the service number, the Tariff item
number, and the amount of the fee collected. When a certificate of
recording is requested, the consular officer may issue it, if he sees
fit to do so. The certificate may be either entered on the document, if
space permits, or appended to the document as a separate sheet in the
manner prescribed in 92.17.
(d) Fees. The fee for recording unofficial documents at a Foreign
Service post is as prescribed under the caption ''Copying and
Recording'' of the Tariff of Fees, Foreign Service of the United States
of America ( 22.1 of this chapter). For purposes of assessment of fees,
the issuance of certificates of recording, when requested, shall be
regarded as part of the consular service of recording unofficial
documents, and no separate fee shall be charged for the certificate.
22 CFR 92.78 Translating documents.
Officers of the Foreign Service are not authorized to translate
documents or to certify to the correctness of translations. (However,
see 92.56 with regard to interpreting and translating services which
may be performed in connection with depositions.) They are authorized to
administer to a translator an oath as to the correctness of a
translation; to take an acknowledgment of the preparation of a
translation; and to authenticate the seal and signature of a local
official affixed to a translation. Separate fees should be charged for
each of these services, as indicated under the caption ''Notarial
Services and Authentications'' of the Tariff of Fees, Foreign Service of
the United States of America ( 22.1 of this chapter).
22 CFR 92.79 Procuring copies of foreign public documents.
(a) Nature of services. When requested to do so by United States
citizens or by persons acting in behalf of United States citizens, a
consular officer should endeavor to obtain from foreign officials copies
of birth, death, and marriage certificates, or copies of other public
records such as divorce decrees, probated wills, and so on. The
interest of the party requesting the document should be clearly
indicated, and there should be good reason for asking for the consular
officer's assistance. Persons requesting documents for use in the
preparation of family trees or in the compilation of genealogical
studies should be referred to a local attorney or to a genealogical
research bureau if one is available.
(b) Payment of expenses involved -- (1) Official funds not to be
used. The use of official funds to pay for copies of or extracts from
foreign public records obtained at the request of private persons is
prohibited.
(2) Payment of costs by Federal Government. In instances of requests
emanating from departments or agencies of the Federal Government for
copies of or extracts from foreign public records, the Department will
issue to Foreign Service posts concerned appropriate instructions with
respect to the payment of whatever local costs may be entailed if the
documents cannot be obtained gratis from the local authorities.
(3) Payment of costs by State or municipal governments. Should
State, county, municipal or other authorities in the United States
besides the Federal Government request the consular officer to obtain
foreign documents, and express willingness to supply documents gratis in
analogous circumstances, the consular officer may endeavor on that basis
to obtain the desired foreign documents gratis. Otherwise, such
authorities should be informed that they must pay the charges of the
foreign officials, as well as any fees which it may be necessary for the
consular officer to collect under the provisions of the Tariff of Fees,
Foreign Service of the United States of America ( 22.1 of this chapter).
(4) Payment of costs by private persons. Before a consular officer
endeavors to obtain a copy of a foreign public document in behalf of a
private person, the person requesting the document should be required to
make a deposit of funds in an amount sufficient to defray any charges
which may be made by the foreign authorities, as well as the Foreign
Service fee for authenticating the document, should authentication be
desired.
22 CFR 92.80 Obtaining American vital statistics records.
Individuals who inquire as to means of obtaining copies of or
extracts from American birth, death, marriage, or divorce records may be
advised generally to direct their inquires to the Vital Statistics
Office at the place where the record is kept, which is usually in the
capital city of the State or Territory. Legal directories and other
published works of references at the post may be of assistance in
providing exact addresses, information about fees, etc. An inquirer who
is not an American citizen may write directly to the diplomatic or
appropriate consular representative of his own country for any needed
assistance in obtaining a desired document.
22 CFR 92.80 Quasi-Legal Services
22 CFR 92.81 Performance of legal services.
(a) Legal services defined. The term ''legal services'' means
services of the kind usually performed by attorneys for private persons
and includes such acts as the drawing up of wills, powers of attorney,
or other legal instruments.
(b) Performance usually prohibited -- (1) General prohibition;
exceptions. Officers of the Foreign Service should not perform legal
services except when instructed to do so by the Secretary of State, or
in cases of sudden emergency when the interests of the United States
Government, might be involved, or in cases in which no lawyer is
available and refusal to perform the service would result in the
imposition of extreme hardship upon a United States citizen. There is
no objection, however, to permitting persons to use the legal references
in the Foreign Service office giving specimen forms of wills, powers of
attorney, etc.
(2) Specific prohibitions and restrictions. See 72.41 of this
chapter for prohibition of performance of legal services by consular
officers in connection with decedents' estates. See 92.11 restricting
the preparation for private parties of legal documents for signature and
notarization.
(3) Acceptance of will for deposit prohibited. Wills shall not be
accepted for safekeeping in the office safe. If a person desires to
have his last will and testament made a matter of record in a Foreign
Service establishment, the officer to whom application is made shall
have the will copied in the Miscellaneous Record Book ( 92.77) and
charge the prescribed fee therefor.
(c) Refusal of requests. In refusing requests for the performance of
legal services, an officer of the Foreign Service should cite these
regulations and should state clearly his reasons for refusing to act.
In appropriate cases, the officer may furnish the inquirer with a copy
of the annual list of attorneys (see 92.82) practicing in the consular
district or he may refer the inquirer to the Department for a list of
attorneys.
(d) Waiver of responsibility. When an officer of the Foreign Service
accedes to a request for the performance of a legal service, he should
inform the applicant that the service is performed at the latter's risk
and without any responsibility on the part of the United States
Government or the officer performing the service.
(e) Fees. No fee should be charged for any legal services which may
be performed under these regulations, beyond the fees or charges for
specific services enumerated in the Tariff of Fees, Foreign Service of
the United States of America ( 22.1 of this chapter).
22 CFR 92.82 Recommending attorneys or notaries.
(a) Assistance in selecting American lawyers. When any person in the
district of a Foreign Service post desires to have the name of an
attorney in the United States, the officer at the post may refer him to
American law directories or other published references at his disposal,
but he shall refrain from recommending any particular attorney.
(b) Assistance in selecting foreign attorneys or notaries. Persons
applying to a Foreign Service post for services of a legal or fiduciary
character or for assistance in selecting an attorney or notary capable
of rendering the services in view, may be furnished the names of several
attorneys or notaries in the district, or referred to the lists to be
found in American or foreign law directories or other published
references. Alternatively, they may be referred to bar associations or,
where applicable, to the organization charged by local law with the
responsibility for providing legal assistance.
(c) Agreements for referral of legal business prohibited. Officers
of the Foreign Service shall not recommend particular attorneys or
notaries to persons who apply to a Foreign Service post for legal
assistance, nor shall they make agreements with attorneys or notaries
for the referral to them of inquiries for legal assistance.
22 CFR 92.84 Legal process defined.
Legal process means a writ, warrant, mandate, or other process
issuing from a court of justice. The term includes subpoenas,
citations, and complaints.
22 CFR 92.85 Service of legal process usually prohibited.
The service of process and legal papers is not normally a Foreign
Service function. Except when directed by the Department of State,
officers of the Foreign Service are prohibited from serving process or
legal papers or appointing other persons to do.
(32 FR 11776, Aug. 16, 1967)
22 CFR 92.86 Consular responsibility for serving subpoenas.
When directed by the Department of State, officers of the Foreign
Service will serve a subpoena issued by a court of the United States on
a national or resident of the United States who is in a foreign country
unless such action is prohibited by the law of the foreign country.
(32 FR 11776, Aug. 16, 1967)
22 CFR 92.87 Consular responsibility for serving orders to show cause.
Officers of the Foreign Service are required to serve orders to show
cause issued in contempt proceedings on a person who has failed or
neglected to appear in answer to a subpoena served in accordance with
the provisions of 92.86. (Section 1, 62 Stat. 949; 28 U.S.C. 1784.)
22 CFR 92.88 Consular procedure.
With regard to the serving of subpoenas and orders to show cause
referred to in 92.86 and 92.87, section 1 of the act of June 25, 1948
(sec. 1, 62 Stat. 819, 28 U.S.C. 1783), provides that the subpoena shall
designate the time and place for appearance before the court of the
United States, and shall issue to any consular officer of the United
States in the foreign country. The consular officer is required to make
personal service of the subpoena and any order to show cause, rule,
judgment or decree on the request of the Federal court or its marshal,
and to make return thereof to such court after tendering to the witness
his necessary travel and attendance expenses, which will be determined
by the court and sent with the subpoena. When the subpoena or order is
forwarded to the officer, it is usually accompanied by instructions
directing exactly how service should be made and how the return of
service should be executed. These instructions should be followed
carefully.
22 CFR 92.89 Fees for service of legal process.
No charge should be made for serving a subpoena or order to show
cause issuing out of Federal court under the procedures set forth in
92.86 and 92.87. The taking of the affidavit of the officer effecting
the service, or the performance of any other notarial act which may be
involved in making the return, should be without charge, under the
caption ''Exemption for Federal Agencies and Corporations'' of the
Tariff of Fees, Foreign Service of the United States of America ( 22.1
of this chapter).
22 CFR 92.90 Delivering documents pertaining to the revocation of
naturalization.
Officers of the Foreign Service shall deliver, or assist in
delivering, to designated persons, documents relating to proceedings in
the cancellation of certificates of naturalization when such documents
are forwarded by duly authorized officials of the Federal courts. The
responsibility for furnishing detailed instructions on the procedure to
be followed in delivering such documents rests with the court or with
the United States attorney concerned, and officers should follow such
instructions carefully.
22 CFR 92.91 Service of documents at request of Congressional
committees.
Officers of the Foreign Service have no authority to serve upon
persons in their consular districts legal process such as subpoenas or
citations in connection with Congressional investigations. All requests
for such service should be referred to the Department of State.
22 CFR 92.92 Service of legal process under provisions of State law.
It may be found that a State statue purporting to regulate the
service of process in foreign countries is so drawn as to mention
service by an American consular officer or a person appointed by him,
without mention of or provision for alternate methods of service. State
laws of this description do not operate in derogation of the laws of the
foreign jurisdiction wherein it may be sought to effect service of legal
process, and such State laws do not serve to impose upon American
consular officers duties or obligations which they are unauthorized to
accept under Federal law, or require them to perform acts contrary to
Federal regulations (see 92.85).
22 CFR 92.93 Notarial services or authentications connected with
service of process by other persons.
An officer of the Foreign Service may administer an oath to a person
making an affidavit to the effect that legal process has ben served.
When an affidavit stating that legal process has been served is executed
before a foreign notary or other official, an officer of the Foreign
Service may authenticate the official character of the person
administering the oath. The fee for administering an oath to a person
making an affidavit or for an authentication, as the case may be, is as
prescribed under the caption ''Notarial Services and Authentications''
in the Tariff of Fees, Foreign Service of the United States of America (
22.1 of this chapter), unless the case is of such nature as to fall
under the caption, ''Exemption for Federal Agencies and Corporations''
of the same Tariff.
22 CFR 92.94 Replying to inquiries regarding service of process or
other documents.
Officers should make prompt and courteous replies to all inquiries
regarding the service of legal process or documents of like nature, and
should render such assistance as they properly can to the court and to
interested parties. Such assistance could include furnishing
information as to the standard procedure of the locality for service of
legal papers, with the name and address of the local office having a
bailiff authorized to effect and make return of service; it could
include furnishing a list of local attorneys capable of making necessary
arrangements; or it could, where appropriate, include a suggestion that
the request of the American court might be presented to the foreign
judicial authorities in the form of letters rogatory (see definition,
92.54, and procedures, 92.66 (b)). If the person upon whom the process
is intended to be served is known to be willing to accept service, or if
it is clear that it would be in his interest at least to be informed of
the matter, the consular officer may suggest to the interested parties
in the United States the drawings up of papers for voluntary execution
by such person, such as a waiver of service or a document which would be
acceptable to the American court to signify the person's entering an
appearance in the action pending therein.
22 CFR 92.95 Transportation of witnesses to the United States.
Officers of the Foreign Service may at times be called upon to assist
in arranging for the transportation to the United States of persons in
foreign countries whose testimony is desired by the Attorney General in
a case pending in a Federal court. Requests that the travel of such
persons be facilitated originate in the Department of Justice, and
special instructions in each case are transmitted to the appropriate
Foreign Service post by the Department of State.
22 CFR 92.95 PART 93 -- SERVICE ON FOREIGN STATE
Sec.
93.1 Service through the diplomatic channel.
93.2 Notice of suit (or of default judgment).
22 CFR 93.1 Service through the diplomatic channel.
(a) The Director of the Office of Special Consular Services in the
Bureau of Security and Consular Affairs, Department of State (''The
Director of Special Consular Services''), shall perform the duties of
the Secretary of State under section 1608(a)(4) of Title 28, United
States Code.
(b) When the clerk of the court concerned sends documents under
section 1608(a)(4), of Title 28, United States Code, the Director of
Special Consular Services shall promptly ascertain if the documents
include the required copies of the notice of suit and of the summons and
complaint (or default judgment), and any required translations. If not,
he shall promptly advise the clerk of the missing items.
(c) Upon receiving the required copies of documents and any required
translations, the Director of Special Consular Services shall promptly
cause one copy of each such document and translation (''the documents'')
to be delivered --
(1) To the Embassy of the United States in the foreign state
concerned, and the Embassy shall promptly deliver them to the foreign
ministry or other appropriate authority of the foreign state, or
(2) If the foreign state so requests or if otherwise appropriate, to
the embassy of the foreign state in the District of Columbia, or
(3) If paragraphs (c)(1) and (2) of this section are unavailable,
through an existing diplomatic channel, such as to the embassy of
another country authorized to represent the interests of the foreign
state concerned in the United States.
(d) The documents, when delivered under paragraph (c) of this
section, shall be accompanied by a diplomatic note of transmittal,
requesting that the documents be forwarded to the appropriate authority
of the foreign state or political subdivision upon which service is
being made. The note shall state that, under United States law,
questions of jurisdiction and of state immunity must be addressed to the
court and not to the Department of State, and that it is advisable to
consult with an attorney in the United States.
(e) If the documents are delivered under paragraph (c)(1) of this
section, the Embassy of the United States shall promptly transmit by
diplomatic pouch, to the Director of Special Consular Services, a
certified copy of the diplomatic note of transmittal. If the documents
are delivered under paragraph (c) (2) or (3) of this section, the
Director of Special Consular Services shall prepare a certified copy of
the diplomatic note of transmittal. In each case, the certification
shall state the date and place the documents were delivered. The
Director of Special Consular Services shall then promptly send the
certified copy to the clerk of the court concerned.
(Sec. 1608(a), Foreign Sovereign Immunities Act of 1976, Pub. L.
94-583 (28 U.S.C. 1608(a)); sec. 4, 63 Stat. 111, as amended (22 U.S.C.
2658))
(42 FR 6367, Feb. 2, 1977)
22 CFR 93.2 Notice of suit (or of default judgment).
(a) A Notice of Suit prescribed in section 1608(a) of Title 28,
United States Code, shall be prepared in the form that appears in the
Annex to this section.
(b) In preparing a Notice of Suit, a party shall in every instance
supply the information specified in items 1 through 5 of the form
appearing in the Annex to this section. A party shall also supply
information specified in item 6, if notice of a default judgment is
being served.
(c) In supplying the information specified in item 5, a party shall
in simplified language summarize the nature and purpose of the
proceeding (including principal allegations and claimed bases of
liability), the reasons why the foreign state or political subdivision
has been named as a party in the proceeding, and the nature and amount
of relief sought. The purpose of item 5 is to enable foreign officials
unfamiliar with American legal documents to ascertain the above
information.
(d) A party may attach additional pages to the Notice of Suit to
complete information under any item.
(e) A party shall attach, as part of the Notice of Suit, a copy of
the Foreign State Immunities Act of 1976 (Pub. L. 94-583; 90 Stat.
2891).
1. Title of legal proceeding; full name of court; case or docket
number.
2. Name of foreign state (or political subdivision) concerned:
3. Identity of the other Parties:
4. Nature of documents served (e.g., Summons and Complaint; Default
Judgment):
5. Nature and purpose of the proceedings; why the foreign state (or
political subdivision) has been named; relief requested:
6. Date of default judgment (if any):
7. A response to a ''Summons'' and ''Complaint'' is required to be
submitted to the court, not later than 60 days after these documents are
received. The response may present jurisdictional defenses (including
defenses relating to state immunity).
8. The failure to submit a timely response with the court can result
in a Default Judgment and a request for execution to satisfy the
judgment. If a default judgment has been entered, a procedure may be
available to vacate or open that judgment.
9. Questions relating to state immunities and to the jurisdiction of
United States courts over foreign states are governed by the Foreign
Sovereign Immunities Act of 1976, which appears in sections 1330,
1391(f), 1441(d), and 1602 through 1611, of Title 28, United States Code
(Pub. L. 94-583; 90 Stat. 2891).
(Sec. 1608(a), Foreign Sovereign Immunities Act of 1976, Pub. L.
94-583 (28 U.S.C. 1608(a)); sec. 4, 63 Stat. 111, as amended (22 U.S.C.
2658))
(42 FR 6367, Feb. 2, 1977)
1Relevant only if items 4 and 6 indicate that a default judgment has
occurred.
22 CFR 93.2 PART 94 -- INTERNATIONAL CHILD ABDUCTION
Sec.
94.1 Definitions.
94.2 Designation of Central Authority.
94.3 Functions of the Central Authority.
94.4 Prohibitions.
94.5 Application.
94.6 Procedures for children abducted to the United States.
94.7 Procedures for children abducted from the United States.
94.8 Interagency Coordinating Group.
Authority: Hague Convention on the Civil Aspects of International
Child Abduction; the federal ''International Child Abduction Remedies
Act,'' Pub. L. 100-300.
Source: 53 FR 23608, June 23, 1988, unless otherwise noted.
22 CFR 94.1 Definitions.
For purposes of this part --
(a) Convention means the Hague Convention on the Civil Aspects of
International Child Abduction, Appendix B to Department of State notice,
51 FR 10498, March 26, 1986.
(b) Contracting State means any country which is a party to the
Convention.
(c) Child and children mean persons under the age of sixteen.
22 CFR 94.2 Designation of Central Authority.
The Office of Citizens Consular Services in the Bureau of Consular
Affairs is designated as the U.S. Central Authority to discharge the
duties which are imposed by the Convention and the International Child
Abduction Remedies Act upon such authorities.
22 CFR 94.3 Functions of the Central Authority.
The U.S. Central Authority shall cooperate with the Central
Authorities of other countries party to the Convention and promote
cooperation by appropriate U.S. state authorities to secure the prompt
location and return of children wrongfully removed to or retained in any
Contracting State, to ensure that rights of custody and access under the
laws of one Contracting State are effectively respected in the other
Contracting States, and to achieve the other objects of the Convention.
In performing its functions, the U.S. Central Authority may receive
from, or transmit to, any department, agency, or instrumentality of the
federal government, or of any state or foreign government, information
necessary to locate a child or for the purpose of otherwise implementing
the Convention with respect to a child.
22 CFR 94.4 Prohibitions.
(a) The U.S. Central Authority is prohibited from acting as an agent
or attorney or in any fiduciary capacity in legal proceedings arising
under the Convention. The U.S. Central Authority is not responsible for
the costs of any legal representation or legal proceedings nor for any
transportation expenses of the child or applicant. However, the U.S.
Central Authority may not impose any fee in relation to the
administrative processing of applications submitted under the
Convention.
(b) The U.S. Central Authority shall not be a repository of foreign
or U.S. laws.
22 CFR 94.5 Application.
Any person, institution, or other body may apply to the U.S. Central
Authority for assistance in locating a child, securing access to a
child, or obtaining the return of a child that has been removed or
retained in breach of custody rights. The application shall be made in
the form prescribed by the U.S. Central Authority and shall contain such
information as the U.S. Central Authority deems necessary for the
purposes of locating the child and otherwise implementing the
Convention. The application and any accompanying documents should be
submitted in duplicate in English or with English translations. If
intended for use in a foreign country, two additional copies should be
provided in the language of the foreign country.
22 CFR 94.6 Procedures for children abducted to the United States.
Upon receipt of an application requesting access to a child or return
of a child abducted from a country party to the Convention and taken to
the United States, the U.S. Central Authority shall --
(a) Confirm the child's location or, where necessary, seek to
ascertain its location;
(b) Seek to ascertain the child's welfare through inquiry to the
appropriate state social service agencies and, when necessary, consult
with those agencies about the possible need for provisional arrangements
to protect the child or to prevent the child's removal from the
jurisdiction of the state;
(c) Seek through appropriate authorities (such as state social
service agencies or state attorneys general or prosecuting attorneys),
where appropriate, to achieve a voluntary agreement for suitable
visitation rights by the applicant or for return of the child;
(d) Assist applicants in securing information useful for choosing or
obtaining legal representation, for example, by providing a directory of
lawyer referral services, or pro bono listing published by legal
professional organizations, or the name and address of the state
attorney general or prosecuting attorney who has expressed a willingness
to represent parents in this type of case and who is employed under
state law to intervene on the applicant's behalf;
(e) Upon request, seek from foreign Central Authorities information
relating to the social background of the child;
(f) Upon request, seek from foreign Central Authorities information
regarding the laws of the country of the child's habitual residence;
(g) Upon request, seek from foreign Central Authorities a statement
as to the wrongfulness of the taking of the child under the laws of the
country of the child's habitual residence;
(h) Upon request, seek a report on the status of court action when no
decision has been reached by the end of six weeks;
(i) Consult with appropriate agencies (such as state social service
departments, the U.S. Department of Health and Human Services, state
attorneys general) about possible arrangements for temporary foster care
and/or return travel for the child from the United States;
(j) Monitor all cases in which assistance has been sought and
maintain records on the procedures followed in each case and its
disposition;
(k) Inform other Central Authorities as appropriate on the operation
of the Convention; and
(l) Perform such additional functions as the Assistant Secretary of
State for Consular Affairs may from time to time direct.
22 CFR 94.7 Procedures for children abducted from the United States.
Upon receipt of an application requesting access to a child or return
of a child abducted from the United States and taken to another country
party to the Convention, the U.S. Central Authority shall --
(a) Review and forward the application to the Central Authority of
the country where the child is believed located or provide the applicant
with the necessary form, instructions, and the name and address of the
appropriate Central Authority for transmittal of the application
directly by the applicant;
(b) Upon request, transmit to the foreign Central Authority requests
for a report on the status of any court action when no decision has been
reached by the end of six weeks;
(c) Upon request, facilitate efforts to obtain from appropriate U.S.
state authorities and transmit to the foreign Central Authority
information regarding the laws of the child's state of habitual
residence;
(d) Upon request, facilitate efforts to obtain from appropriate U.S.
state authorities and transmit to the foreign Central Authority a
statement as to the wrongfulness of the taking of the child under the
laws of the child's state of habitual residence;
(e) Upon request, facilitate efforts to obtain from appropriate U.S.
state authorities and transmit to the foreign Central Authority
information relating to the social background of the child;
(f) Upon request, be available to facilitate possible arrangements
for temporary foster care and/or travel for the child from the foreign
country to the United States;
(g) Monitor all cases in which assistance has been sought; and
(h) Perform such additional functions as the Assistant Secretary of
State for Consular Affairs may from time to time direct.
22 CFR 94.8 Interagency Coordinating Group.
The U.S. Central Authority shall nominate federal employees and may,
from time to time, nominate private citizens to serve on an interagency
coordinating group to monitor the operation of the Convention and to
provide advice on its implementation. This group shall meet from time
to time at the request of the U.S. Central Authority.
22 CFR 94.8 SUBCHAPTER K -- ECONOMIC, COMMERCIAL AND CIVIL AVIATION FUNCTIONS
22 CFR 94.8 PART 101 -- ECONOMIC AND COMMERCIAL FUNCTIONS
Sec.
101.1 Protection of American interests.
101.2 Promotion of American interests.
101.3 Services for American businessmen and organizations.
101.4 Economic and commercial reporting.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10871, Dec. 27, 1957, unless otherwise noted.
22 CFR 101.1 Protection of American interests.
Officers of the Foreign Service shall protect the rights and
interests of the United States in its international agricultural,
commercial, and financial relations. In pursuance of this duty, they
shall:
(a) Guard against the infringement of rights of American citizens in
matters relating to commerce and navigation which are based on custom,
international law, or treaty.
(b) Observe, report on, and, whenever possible, endeavor to remove
discriminations against American agricultural, commercial, and
industrial interests in other countries.
(c) Protect the national commercial reputation of the United States.
22 CFR 101.2 Promotion of American interests.
Officers of the Foreign Service shall further the agricultural and
commercial interests of the United States:
(a) By carefully studying and reporting on the potentialities of
their districts as a market for American products or as a competitor of
American products in international trade.
(b) By investigating and submitting World Trade Directory Reports on
the general standing and distributing capacity of foreign firms within
their districts.
(c) By preparing and submitting upon request trade lists of
commercial firms within their districts.
(d) By keeping constantly on the alert for and submitting immediate
reports on concrete trade opportunities.
(e) By endeavoring to create, within the scope of the duties to which
they are assigned, a demand for American products within their
districts.
(f) By facilitating and reporting on proposed visits of alien
businessmen to the United States.
(g) By taking appropriate steps to facilitate the promotion of such
import trade into the United States as the economic interests of the
United States may require.
22 CFR 101.3 Services for American businessmen and organizations.
Officers of the Foreign Service shall perform the
following-enumerated services for American citizens and business
organizations in connection with the conduct of foreign trade subject to
such rules and limitations thereon as may be prescribed by the Secretary
of State:
(a) Answering trade inquiries.
(b) Lending direct assistance to American citizens and business
firms.
(c) Encouraging the establishment of, and supporting, American
chambers of commerce.
(d) Preparing themselves for and, upon instructions, performing trade
conference work when in the United States on leave, or otherwise.
22 CFR 101.4 Economic and commercial reporting.
Officers of the Foreign Service shall prepare and submit reports in
connection with their duties of protecting and promoting American
agricultural commercial interests and for the purpose of providing
general information on economic developments within their respective
districts for the Departments of State, Agriculture, and Commerce, and
for other governmental departments and agencies, in accordance with such
rules and regulations as the Secretary of State may prescribe.
22 CFR 101.4 PART 102 -- CIVIL AVIATION
22 CFR 101.4 Subpart A -- United States Aircraft Accidents Abroad
Sec.
102.8 Reporting accidents.
102.9 Arranging for entry and travel of investigating and airline
representatives.
102.10 Rendering assistance at the scene of the accident.
102.11 Arranging for the payment of expenses attendant upon an
accident.
102.12 Protective services for survivors.
102.13 Protective services with respect to deceased victims of
accidents.
102.14 Salvage of mail and other property.
102.15 Protection and preservation of wreckage.
102.16 Records and reports in connection with investigation.
102.17 Reports on accident.
102.18 Protection of United States citizens involved.
102.19 Protection of United States property.
22 CFR 101.4 Subpart B -- Recommendations to the President Under
Section 801 of the Federal Aviation Act of 1958
102.21 Purpose.
102.22 (Reserved)
102.23 Applicability.
102.24 (Reserved)
102.25 Submission of comments.
102.26 (Reserved)
102.27 Docket.
22 CFR 101.4 Subpart A -- United States Aircraft Accidents Abroad
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10871, Dec. 27, 1957, unless otherwise noted.
22 CFR 102.8 Reporting accidents.
(a) To airline and Civil Aeronautics Administration representatives.
If a scheduled United States air carrier is involved the airline
representatives concerned will probably be the first to be informed of
the accident, in which event he will be expected to report the accident
to the Foreign Service post, to the nearest Civil Aeronautics
Administration office, and to his home office in the United States. If
this is not the case, the Foreign Service post should report promptly to
the nearest office of the airline concerned and to the nearest office of
the Civil Aeronautics Administration, any accident occurring to a
scheduled civil air carrier of United States registry within its
consular district. To be properly prepared, each post should obtain and
have on file for ready reference, the address and telephone number of
representatives of any United States airline engaged in scheduled
operations within or over the post district.
(b) To Department and supervisory Foreign Service offices. A Foreign
Service post should report promptly to the Department accidents to any
United States civil aircraft occurring in the post district. The report
should summarize all available information and, in the case of a
scheduled United States air carrier, should state whether the airline
has taken over the responsibility of notifying the nearest Civil
Aeronautics Administration field office. This report should be
submitted by the most expeditious means possible (priority telephone or
telegraph message) at Government expense. If the accident involves a
private plane or non-scheduled air carrier, these circumstances should
be reported, also whether the nearest office of the Civil Aeronautics
Administration has been informed. In the latter case, the Department
will ascertain from the Civil Aeronautics Board whether it desires to
investigate the case, and inform the Foreign Service post accordingly.
Consular posts should submit a similar report to their supervisory
missions or to their supervisory consular offices in territories where
there are no United States missions. Supplementary reports should be
supplied the Department and the supervisory Foreign Service office
whenever considered appropriate. A final report, after the urgency has
diminished, and when the post's role is negligible should cover the
post's activities in connection with the accident (see 102.16(b)).
22 CFR 102.9 Arranging for entry and travel of investigating and
airline representatives.
Representatives of the Civil Aeronautics Board, the Civil Aeronautics
Administration and the United States airline involved may not have the
documents necessary for entry into the country where the accident
occurred. The local Foreign Service post should lend all assistance
possible in obtaining the entry of such representatives into the country
where the accident occurred and in expediting their travel to the scene
of the accident.
22 CFR 102.10 Rendering assistance at the scene of the accident.
Always in the case of a scheduled United States air carrier and
whenever necessary in the case of a non-scheduled carrier or private
plane, a local Foreign Service post should dispatch a member of its
staff to the scene of the accident in order to insure that proper
protection is afforded United States citizens and property involved in
the accident and that any evidence as to the cause of the accident is
preserved until the arrival of United States Government investigating
personnel. (For steps to be taken when the aircraft was carrying a
courier or diplomatic pouches, see 102.14(b).) In the absence of an
airline representative, the Foreign Service representative should lend
the competent local authorities all possible assistance compatible with
the provisions of 102.11 in caring for the survivors, identifying and
disposing of the remains of victims, salvaging and protecting property
and preserving wreckage pending an investigation. If an airline
representative is already at the scene of the accident or if one arrives
shortly thereafter, the Foreign Service representative should assist him
in the discharge of his recognized responsibilities in connection with
passengers and cargo. However, the Foreign Service representative is
also obligated to assist investigating personnel of the United States
Government by preserving evidence as to the cause of the accident. Any
attempt on the part of the airline representative to exceed his
recognized sphere of activity should be called to the attention of the
airline involved and the competent local authorities.
22 CFR 102.11 Arranging for the payment of expenses attendant upon an
accident.
(a) The Department of State has no funds from which expenses
attendant upon an accident to United States aircraft can be paid. In
emergencies involving scheduled carriers and in the absence of airline
representatives, or other authority, the Foreign Service post should
request a deposit from the airline (through the Department if desired)
with specific authorization to incur whatever financial obligations the
airline is willing to assume for the hiring of guards (in case local
police protection is considered inadequate), the provision of
accommodations, medical care, and onward transportation for survivors
and for other expenses resulting from the accident. In accidents
involving a private plane or non-scheduled carrier, the Foreign Service
post is not in a position to expend any funds without prior
authorization from the Department. In such cases, and in extreme cases
involving scheduled carriers, when airline and investigation personnel
may be delayed in reaching the scene, the Foreign Service
representative, as the representative of all segments of the United
States Government in the area, should endeavor to protect and promote
the interests of the Government, the airline, and the individual citizen
by any means available to him that are consistent with these
regulations, and should request funds and instructions as required from
the Department.
(b) The local Foreign Service post is not authorized to expend any
funds for guarding the wreckage to preserve evidence as to the cause of
the accident unless the Civil Aeronautics Board or the Civil Aeronautics
Administration authorizes in advance the expenditure of such funds on a
reimbursable basis. In the absence of such advance authorization, the
Foreign Service post can arrange only for such protection as local
authorities are willing to furnish gratuitously.
(c) Voluntary services and personal services in excess of those
authorized by law may be accepted and utilized in the case of an
aircraft accident since the law which normally prohibits such acceptance
(31 U.S.C. 665) does not apply ''in case of sudden emergency involving
the loss of human life or the destruction of property''.
22 CFR 102.12 Protective services for survivors.
(a) Medical care and hospitalization. The Foreign Service
representative should lend any assistance possible (see 102.10 and
102.11) in arranging for the best medical and hospital attention
available for injured survivors of the accident. If a scheduled United
States carrier is involved in an accident, the primary responsibility
for providing medical care for passengers and crew rests with the
airline, and in such situations the Foreign Service representative
should assist the airline in every way that is feasible (see 102.10
and 102.11).
(b) Accommodation and onward transportation. If a scheduled United
States carrier is involved in an accident, primary responsibility for
providing accommodation and onward transportation for passengers and
crew rests with the airline, and in such situations the Foreign Service
representative should assist the airline in every way that is feasible
(see 102.10 and 102.11). If the accident involves a private plane or
non-scheduled carrier, he should assist passengers and members of the
crew who do not require hospitalization in any way compatible with
102.10 and 102.11 in obtaining appropriate comfortable accommodations
accessible from the scene of the accident. If practicable, surviving
passengers should remain in the vicinity of the accident until the
United States Government investigating personnel can obtain from them
all information pertaining to the accident. Surviving passengers
leaving the vicinity should furnish addresses at which they can be
reached later. The Foreign Service representative should assist the
passengers, insofar as he can under the provision of 102.10 and
102.11, in obtaining necessary clearances from local authorities and in
getting onward transportation by the most expeditious means of common
carrier transportation available. The surviving aircraft crew will be
expected to remain in the vicinity of the accident until otherwise
instructed by the investigating personnel.
22 CFR 102.13 Protective services with respect to deceased victims of
accidents.
(a) Interim disposition of remains. Generally, local authorities
will assume custody of the remains of deceased victims of the accident
and consign them to a mortuary until final disposition can be made.
(b) Identification of remains. When necessary, the local Foreign
Service post should assist in identifying the remains of United States
citizens who are victims of the accident by requesting the Department to
procure dental charts, passport application data and photographs,
fingerprints, or other United States records.
(c) Reports on deaths of United States citizens. The local Foreign
Service post shall report the deaths of United States citizens occurring
in an aircraft accident in accordance with the procedure prescribed in
72.1 to 72.8 of this chapter.
(d) Disposition of remains. When a scheduled United States air
carrier meets with an accident, the United States airline concerned will
usually transport the identifiable remains of victims of the accident to
the place of final interment designated by the next of kin. If the
Foreign Service post is requested, or finds it necessary, to dispose of
identifiable remains, it shall follow the procedure prescribed in 72.9
to 72.14 of this chapter. Where remains are unidentifiable, the local
authorities may be expected to make final disposition of these remains
locally in accordance with the health requirements of the country
concerned, usually by common burial or by cremation, and without regard
to the disposition desired by possible next of kin.
22 CFR 102.14 Salvage of mail and other property.
(a) Mail. Article 3, sections 6 and 7, of the Air Mail Provisions
annexed to the Universal Postal Union Convention, Paris, 1947, provide
that the personnel who survive the aircraft accident shall, when
possible, deliver the mail to the post office nearest the place of the
accident or to the one best-qualified to reforward the mail. If the
aircraft personnel are unable to do this, the local post office
concerned shall make every effort, without delay, to take delivery of
the mail and to forward it to the offices of designation by the most
rapid means, after determining the condition of the correspondence and
reconditioning it if damaged. Most post offices are familiar with these
provisions, but if in any case the mail is not being properly cared for,
the local Foreign Service post should bring the proper procedure to the
attention of the nearest post office.
(b) Diplomatic pouches. Immediately upon arriving at the scene of
the accident, the Foreign Service representative should ascertain
whether the aircraft was carrying a courier or diplomatic pouches. If a
courier is found to be aboard, the same personal arrangements should be
made for him as are made for other passengers (see 102.10 to 102.13).
An immediate search should also be made for whatever diplomatic pouches
the courier may have been carrying and for any pouches that may have
been carried as regular cargo. Usually, the cargo manifest will list
diplomatic pouches carried as air freight or cargo. The passenger
manifest normally will list the total number of pieces of luggage or
pouches checked by a courier (if one is aboard), but since he usually
carries his pouches with him into the cabin of the plane, the pouch
invoices on his person or in his briefcase will offer positive proof of
the number of pouches he had in his custody. If any are found, they
should be cleared through appropriate government officials of the
country and taken to the nearest United States Foreign Service office to
await disposition instructions. If it is learned that the postal
authorities have already recovered United States diplomatic pouches that
may have been involved, these pouches should be obtained from the postal
authorities and taken to the nearest United States Foreign Service
office to await diposition instructions. A telegraphic message should
be dispatched to the Department and to the regional courier office
having jurisdiction over that area, giving a description of the pouches
recovered. This description should include the office of addressor and
addressee and the classification indicator (C, A, or S). The Department
and the regional courier office will coordinate instructions to the
office for the disposition of these pouches.
(c) Baggage, personal effects and cargo. The Foreign Service
representative should request the local authorities to arrange for the
security storage and protection of such baggage, personal effects and
cargo as is recoverable from the aircraft until the property can be
released to its owners by local customs and accident investigating
authorities, or by the courts. When released, the personal effects of
United States citizens, who died in the accident, should be taken into
possession and disposed of by the local Foreign Service post in
accordance with the procedure prescribed in 72.15 to 72.55 of this
chapter.
22 CFR 102.15 Protection and preservation of wreckage.
In so far as local law permits, the Foreign Service representative
should see that arrangements are made (by the airline representative
with the local authorities, if a scheduled carrier is involved) for the
protection of the wrecked aircraft and its property contents against
further damage, pilferage, and access by unauthorized persons, until the
arrival of the accident investigation personnel. The prior removal of
any of the wreckage or the contents of the aircraft should be prevented
unless such action is necessitated by very compelling reasons, such as
the need for treating the injured or for removing bodies, or when the
wreckage constitutes a public hazard. When under the latter conditions
the wreckage and contents of the aircraft must be moved or disturbed in
any way, if possible, a record should be made or photographs taken
showing the position and condition of the wreckage prior to disturbance.
In the case of a private aircraft or non-scheduled carrier, protection
should be arranged for the wrecked aircraft and its contents pending the
receipt of information from the Department as to whether the Civil
Aeronautics Board will investigate the case, and until final disposition
is made of the property. If the owner of a private aircraft is killed
in the wreck and is a United States citizen, the aircraft constitutes
part of his personal estate and should be disposed of in accordance with
the provisions of 72.15 to 72.55 of this chapter. For rules governing
the payment of expenses in connection with the protection and
preservation of wrecked United States aircraft, see 102.11.
22 CFR 102.16 Records and reports in connection with investigation.
(a) Records. The Foreign Service representative should maintain a
record of the various transactions taking place prior to the arrival of
airline, Civil Aeronautics Board and Civil Aeronautics Administration
representatives. This record should include all pertinent details with
respect to the disposition of persons and property, obligations assumed,
arrangements made, et cetera, and should also include any statements
made by witnesses.
(b) Reports. Reports should be submitted to the Department for its
information and the information of aviation authorities and other
interested parties in the United States regarding the progress of any
investigation which is held and its final outcome when known.
22 CFR 102.16 Foreign Aircraft Accidents Involving United States Persons or Property
22 CFR 102.17 Reports on accident.
When an accident occurs to a foreign aircraft in the district of a
Foreign Service post and United States citizens or property are
involved, the local Foreign Service post shall report the disaster fully
to the Department and to the supervisory mission (or the supervisory
consular office where there is no mission).
22 CFR 102.18 Protection of United States citizens involved.
The local Foreign Service post shall follow substantially the
procedures prescribed in 102.11 to 102.13 in protecting United States
citizens (whether alive or dead) involved in a foreign aircraft
accident.
22 CFR 102.19 Protection of United States property.
The local Foreign Service office shall follow substantially the
procedures set forth in 102.11 and 102.14 in protecting United States
mail and baggage, personal effects and cargo belonging to United States
citizens.
22 CFR 102.19 Subpart B -- Recommendations to the President Under
Section 801 of the Federal Aviation Act of 1958
Authority: Sec. 4, Act of May 26, 1949, as amended (63 Stat. 111;
22 U.S.C. 2658); E.O. 11920 (June 11, 1976, 41 FR 23665).
Source: 41 FR 31548, July 29, 1976, unless otherwise noted.
22 CFR 102.21 Purpose.
The purpose of this subpart is to set forth procedures for the
receipt by the Department of State of comments from private parties on
possible recommendations by the Department to the President on decisions
of the Civil Aeronautics Board submitted for the President's approval
under section 801 of the Federal Aviation Act of 1958, which relates to
overseas and international air transportation.
102.22 (Reserved)
22 CFR 102.23 Applicability.
(a) This subpart applies to all communications between private
parties and officials or employees of the Department of State, including
those stationed abroad, on matters set forth in 102.21 of this subpart.
(b) This subpart applies, with respect to any particular proceeding
before the Civil Aeronautics Board, from the time that the Board's
decision has been submitted to the President for consideration until the
President has issued a final decision with respect to that proceeding.
102.24 (Reserved)
22 CFR 102.25 Submission of comments.
(a) All communications by private parties with Departmental officials
or employees concerning a Presidential decision under section 801 of the
Federal Aviation Act shall, whenever possible, be made in writing. Any
such communication which is not made in writing shall be summarized by
the official or employee of the Department who receives the
communication.
(b) All such summaries and written communications, except those
relating to matters that are specifically authorized under criteria
established by Executive Order to be kept confidential in the interest
of national defense or foreign policy, are to be placed in a public
docket and available for public inspection and copying and for
responsive comment.
102.26 (Reserved)
22 CFR 102.27 Docket.
(a) All comments submitted under this subpart shall reference the
number of the Civil Aeronautics Board docket relating to the proceeding
which is the subject of the comment.
(b) The original and four copies of such comments may be mailed to
the Director, Office of Aviation, Department of State, Washington, D.C.
20520, or delivered to the Director, Office of Aviation, Room 5830,
Department of State, Washington, D.C. 20520, 8:45 a.m. to 5:30 p.m.
local time, Monday through Friday except Federal holidays. Written
comments submitted to Department officials other than the Director of
the Office of Aviation and summaries of oral communications prepared in
accordance with 102.25(a) of this subpart shall be forwarded to the
Director of the Office of Aviation.
(c) All comments submitted under this subpart and placed in the
docket, are available for public inspection and copying and for
responsive comment at the address and times specified in paragraph (b)
of this section.
22 CFR 102.27 SUBCHAPTER L -- ENEMIES AND REPARATIONS
22 CFR 102.27 PART 111 -- REMOVAL OF ALIEN ENEMIES BROUGHT TO THE
UNITED STATES FROM OTHER AMERICAN REPUBLICS
Sec.
111.1 Removal from the United States of alien enemies from other
American republics.
111.2 Order of the Secretary of State.
111.3 Service of removal order on alien enemy.
111.4 Thirty-day period for voluntary departure.
111.5 Involuntary removal from the United States.
Authority: R.S. 4067, as amended; 50 U.S.C. 21.
Source: 22 FR 10873, Dec. 27, 1957, unless otherwise noted.
22 CFR 111.1 Removal from the United States of alien enemies from other
American republics.
The proclamation of the President of the United States, No. 2685,
dated April 10, 1946, 3 CFR, 1943-1948 Comp., provides in part:
1. All alien enemies within the continental limits of the United
States brought here from other American republics after December 7,
1941, who are within the territory of the United States without
admission under the immigration laws, shall, if their continued
residence in the Western Hemisphere is deemed by the Secretary of State
to be prejudicial to the future security or welfare of the Americas, be
subject upon the order of the Secretary of State to removal from the
United States and may be required to depart therefrom in accordance with
such regulations as the Secretary of State may prescribe.
2. In all cases in which the Secretary of State shall have ordered
the removal of an alien enemy under the authority of this Proclamation
or in which the Attorney General shall have ordered the removal of an
alien enemy under the authority of Proclamation No. 2655 of July 14,
1945, thirty days shall be considered, and is hereby declared to be, a
reasonable time for such alien enemy to effect the recovery, disposal
and removal of his goods and effects, and for his departure.
22 CFR 111.2 Order of the Secretary of State.
When a determination has been made by the Secretary of State that the
continued resident in the Western Hemisphere of an alien enemy, brought
to the United States from another American republic after December 7,
1941, who is within the territory of the United States without admission
under the immigration laws, would be prejudicial to the future security
or welfare of the Americas, an order will be signed by the Secretary of
State directing that the said alien enemy depart from the United States
within thirty days after notification of the order and that, if he fails
or neglects so to depart, the Commissioner of Immigration and
Naturalization is to provide for the alien enemy's removal to the
territory of the country of which he is a native, citizen, denizen, or
subject.
22 CFR 111.3 Service of removal order on alien enemy.
A copy of the Secretary of State's order of removal will be delivered
to an alien enemy at the place where he is interned.
22 CFR 111.4 Thirty-day period for voluntary departure.
An alien enemy who is the subject of a removal order shall have
thirty (30) days after receiving notification of the removal order to
depart from the United States. Unless the public safety otherwise
requires, the Commissioner of Immigration and Naturalization is
authorized to release such alien enemy from internment under appropriate
parole safeguards in order that the alien enemy may settle his personal
and business affairs, provide for the recovery, disposal and removal of
his goods and effects, and make arrangements to depart from the United
States.
22 CFR 111.5 Involuntary removal from the United States.
In the event that an alien enemy, who is the subject of a removal
order, fails or neglects to depart from the United States within the
above-mentioned thirty-day period, the Commissioner of Immigration and
Naturalization will take the alien enemy into custody and will provide
for his removal to the territory of the country of which he is a native,
citizen, denizen, or subject, as soon as transportation is available.
22 CFR 111.5 PART 112 -- REPARATIONS: WORLD WAR II
Sec.
112.1 Authority to accept reparations payment.
112.2 Redelegation of authority to accept reparations payment.
22 CFR 112.1 Authority to accept reparations payment.
The Director of the Office of European Regional Affairs under the
general direction of the Assistant Secretary for European Affairs, and
in accordance with current general policies of the Department, shall be
responsible for accepting on behalf of the United States Government
funds allocated to the United States as reparations payments. Funds
received will be deposited in a special account in the United States
Treasury.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
(22 FR 10874, Dec. 27, 1957)
22 CFR 112.2 Redelegation of authority to accept reparations payment.
The authority granted to the Director of the Office of European
Regional Affairs under 112.1 may be redelegated to appropriate
officials of the United States Government.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
(22 FR 10874, Dec. 27, 1957)
22 CFR 112.2 SUBCHAPTER M -- INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
22 CFR 112.2 PART 120 -- PURPOSE, BACKGROUND AND DEFINITIONS
Sec.
120.1 General.
120.2 Designation of defense articles and defense services.
120.3 Policy on designating defense articles and services.
120.4 Relation to Department of Commerce regulations.
120.5 Commodity jurisdiction procedure.
120.6 General.
120.7 Defense articles.
120.8 Defense services.
120.9 District director of customs.
120.10 Export.
120.11 Foreign person.
120.12 Intransit shipment.
120.13 License.
120.14 Manufacturing license agreement.
120.15 Office of Munitions Control.
120.16 Person.
120.17 Presiding official.
120.18 Public domain.
120.19 Significant military equipment.
120.20 Technical assistance agreement.
120.21 Technical data.
120.22 United States.
120.23 U.S. person.
120.24 U.S. criminal statutes.
120.25 Listing of forms referred to in this subchapter.
Authority: Sec. 38, Arms Export Control Act, 90 Stat. 744 (22
U.S.C. 2778); E.O. 11958, 42 FR 4311; 22 U.S.C. 2658.
Source: 49 FR 47684, Dec. 6, 1984, unless otherwise noted.
22 CFR 120.1 General.
(a) Purpose. Section 38 of the Arms Export Control Act (22 U.S.C.
2778) authorizes the President to control the export and import of
defense articles and defense services. It is the purpose of this
subchapter to implement this authority. The statutory authority of the
President to promulgate regulations with respect to exports of defense
articles and defense services was delegated to the Secretary of State by
Executive Order 11958, as amended (42 FR 4311). By virtue of
delegations of authority by the Secretary of State, these regulations
are primarily administered by the Director of the Office of Munitions
Control, Bureau of Politico-Military Affairs, Department of State (35 FR
5422).
(b) Eligibility. Licenses or other approvals (other than approvals
obtained pursuant to 123.9 of this subchapter) may be granted only to
U.S. persons (as defined in 120.23) and foreign governmental entities
in the United States. Foreign persons (as defined in 120.11) other
than governments are not eligible. U.S. persons who have been
convicted of violating the U.S. criminal statutes enumerated in 120.24,
or who have been debarred pursuant to part 127 of this subchapter, are
also generally ineligible (see 127.6(c) of this subchapter).
Applications for licenses or requests for other approvals will generally
be considered only if the applicant has registered with the Office of
Munitions Control pursuant to part 122 of this subchapter. All
applications and requests for approval must be signed by a responsible
official who is a U.S. person and who has been empowered by the
registrant to sign such documents.
(49 FR 47684, Dec. 6, 1984; 50 FR 12787, Apr. 1, 1985, as amended at
53 FR 11496, Apr. 7, 1988; 54 FR 42497, Oct. 17, 1989)
22 CFR 120.2 Designation of defense articles and defense services.
The Arms Export Control Act also provides (22 U.S.C. 2778(a) and
2794(7)) that the President shall designate which articles shall be
deemed to be defense articles and defense services for purposes of this
subchapter. The items so designated constitute the United States
Munitions List, and are specified in part 121 of this subchapter. Such
designations are made by the Department of State with the concurrence of
the Department of Defense.
22 CFR 120.3 Policy on designating defense articles and services.
Designations of defense articles and defense services are based
primarily on whether an article or service is deemed to be inherently
military in character. Whether it has a predominantly military
application is taken into account. The fact that an article or service
may be used for both military and civilian purposes does not in and of
itself determine whether it is subject to the export controls of this
subchapter. (Narrow exceptions to this general policy exist with
respect to exports of certain spare parts and components in Categories
V(d); VIII (e) and (g); XI(e); XII(c); and XVI(b).) The intended use
of the article or service after its export (i.e., for a military or
civilian purpose) is also not relevant in determining whether the export
is subject to the controls of this subchapter.
22 CFR 120.4 Relation to Department of Commerce regulations.
If an article or service is placed on the United States Munitions
List, its export is regulated exclusively by the Department of State.
Exports which are not subject to the controls of this subchapter are
generally under the regulatory jurisdiction of the Department of
Commerce pursuant to the Export Administration Act of 1979, as amended
(50 U.S.C. App. 2401 through 2420) and the implementing Export
Administration Regulations (15 CFR parts 368 through 399).
22 CFR 120.5 Commodity jurisdiction procedure.
The Office of Munitions Control will provide, upon written request, a
determination on whether a particular article is included on the United
States Munitions List. Such requests should be accompained by five
copies of the letter requesting a determination and any brochures or
other documentation or specifications relating to the article. A
''commodity jurisdiction'' procedure is used if a doubt exists within
the U.S. Government on whether an article is on the Munitions List. The
procedure entails consultations among the Departments of State, Commerce
and Defense.
22 CFR 120.5 Definitions
22 CFR 120.6 General.
The definitions contained in this part (listed alphabetically) apply
to the use of the defined terms throughout this subchapter unless a
different meaning is specified. See also 130.2 through 130.8 for
definitions applicable to Part 130.
22 CFR 120.7 Defense articles.
Defense article means any item designated in 121.1. This term
includes models, mockups, and other such items which reveal technical
data directly relating to items designated in 121.1.
22 CFR 120.8 Defense services.
Defense service means:
(a) The furnishing of assistance, including training, to foreign
persons in the design, engineering, development, production, processing,
manufacture, use, operation, overhaul, repair, maintenance,
modification, or reconstruction of defense articles, whether in the
United States or abroad; or
(b) The furnishing to foreign persons of any technical data, whether
in the United States or abroad.
22 CFR 120.9 District director of customs.
District director of customs means the district directors of customs
at customs headquarters ports (other than the port of New York City, New
York); the regional commissioners of customs, the deputy and assistant
regional commissioners of customs for customs region II at the port of
New York, New York; and port directors at customs ports not designated
as headquarters ports.
22 CFR 120.10 Export.
Export means, for purposes of this subchapter:
(a) Sending or taking defense articles out of the United States in
any manner; or
(b) Transferring registration or control to a foreign person of any
aircraft, vessel, or satellite on the United States Munitions List,
whether in the United States or abroad; or
(c) Sending or taking technical data outside of the United States in
any manner except by mere travel outside of the United States by a
person whose personal knowledge includes technical data; or
(d) Disclosing or transferring technical data to a foreign person,
whether in the United States or abroad; or
(e) The performance of a defense service on behalf of, or for the
benefit of, a foreign person, whether in the United States or abroad.
A launch vehicle or payload shall not, by reason of the launching of
such vehicle, be considered an export for purposes of this subchapter.
Most of the requirements of this subchapter relate only to exports, as
defined above. However, for certain limited purposes, the controls of
this subchapter apply to sales and other transfers of defense articles
and defense services (see, e.g., 126.1) of this subchapter.
(49 FR 47684, Dec. 6, 1984; 49 FR 48536, Dec. 13, 1984, as amended
at 53 FR 11496, Apr. 7, 1988)
22 CFR 120.11 Foreign person.
Foreign person means any person ( 120.16) who is not a citizen or
national of the United States unless that person has been lawfully
admitted for permanent residence in the United States under the
Immigration and Naturalization Act (8 U.S.C. 1101, section 101(a)20, 60
Stat. 163) (i.e., individuals referred to as ''immigrant aliens'' under
previous laws and regulations). It includes foreign corporations (i.e.,
corporations that are not incorporated in the United States),
international organizations, foreign governments, and any agency or
subdivision of foreign governments (e.g., diplomatic missions).
22 CFR 120.12 Intransit shipment.
Intransit shipment means a temporary import into the United States of
a defense article.
(49 FR 47684, Dec. 6, 1984; 49 FR 48536, Dec. 13, 1984)
22 CFR 120.13 License.
License means a document bearing the word ''license'' which when
issued by the Director, Office of Munitions Control, or his authorized
designee, permits the export or intransit shipment of a specific defense
article, defense service, or technical data.
22 CFR 120.14 Manufacturing license agreement.
An agreement (e.g., contract) whereby a U.S. person grants a foreign
person an authorization or a license to manufacture defense articles
abroad and which involves or contemplates (a) the export of technical
data (as defined in 120.21) or defense articles or the performance of
defense services, or (b) the use by the foreign person of technical data
or defense articles previously exported by the U.S. person.
22 CFR 120.15 Office of Munitions Control.
Office of Munitions Control means the Office of Munitions Control,
Bureau of Politico-Military Affairs, Department of State, Washington,
D.C. 20520.
22 CFR 120.16 Person.
Person means a natural person as well as a corporation, business
association, partnership, society, trust, or any other entity,
organization or group, including governmental entities. If a provision
in this subchapter does not refer exclusively to a foreign person (
120.11) or U.S. person ( 120.23), then it refers to both.
22 CFR 120.17 Presiding official.
Presiding official means a person authorized to conduct hearings in
administrative proceedings.
22 CFR 120.18 Public domain.
Public domain means information which is published and which is
generally accessible or available to the public:
(a) Through sales at newsstands and bookstores;
(b) Through subscriptions which are available without restriction to
any individual who desires to obtain or purchase the published
information;
(c) Through second class mailing privileges granted by the U.S.
Government; or,
(d) At libraries open to the public.
22 CFR 120.19 Significant military equipment.
(a) Significant military equipment means articles, as identified in
paragraph (b) of this section, for which special export controls are
warranted because of their capacity for substantial military utility or
capability.
(b) Articles designated as significant military equipment under the
criterion specified in paragraph (a) of this section include all
classified articles and the articles enumerated in 121.1 in Categories
I (a) and (c) (in quantity); II (a) and (b); III(a) (excluding
ammunition for firearms in Category (I)) and (d); IV (a), (b), (d),
(e), (f) and (g); V (a) (in quantity) and (b); VI (a), (b) (inclusive
only of turrets and gun mounts, missile systems, and special weapons
systems) and (e); VII (a), (b), (c), (e), (f) and (g); VIII (a),
(b)(1), (c), (d), (g), (h), and (i). GEMS as defined in (i), and
inertial systems as defined in (j); XI (a)(1), (b)(1), (c); XII (a)
and (b); XIV (a), (b), (c) and (d); XVI; XVII; and XX (a) and (b).
(c) Items in 121.1 which are preceded by an asterisk are
''significant military equipment.''
(d) Section 47(6) of the Arms Export Control Act (22 U.S.C. 2794(6)
note) provides a definition of ''major defense equipment'' and refers to
certain significant combat equipment on the U.S. Munitions List. The
terms ''significant military equipment'' and ''significant combat
equipment'' are considered to be equivalent for purposes of that section
of the Arms Export Control Act and this subchapter.
(49 FR 47684, Dec. 6, 1984, as amended at 53 FR 11496, Apr. 7, 1988)
22 CFR 120.20 Technical assistance agreement.
An agreement (e.g., contract) for the performance of defense services
or the disclosure of technical data, as opposed to an agreement granting
a right or license to manufacture defense articles.
22 CFR 120.21 Technical data.
Technical data means, for purposes of this subchapter:
(a) Classified information relating to defense articles and defense
services;
(b) Information covered by an invention secrecy order;
(c) Information, in any form, which is directly related to the
design, engineering, development, production, processing, manufacture,
use, operation, overhaul, repair, maintenance, modification, or
reconstruction of defense articles. This includes, for example,
information in the form of blueprints, drawings, photographs, plans,
instructions, computer software and documentation. This also includes
information which advances the state of the art of articles on the U.S.
Munitions List. This definition does not include information concerning
general scientific, mathematical or engineering principles commonly
taught in academia. It also does not include basic marketing
information on function or purpose or general system descriptions of
defense articles.
(49 FR 47684, Dec. 6, 1984, as amended at 56 FR 55458, Oct. 28, 1991)
22 CFR 120.22 United States.
United States, when used in the geographical sense, includes the
several States, the Commonwealth of Puerto Rico, the insular possessions
of the United States, the District of Columbia, and any territory over
which the United States exercises any powers of administration,
legislation, and jurisdiction.
22 CFR 120.23 U.S. Person.
U.S. Person means a natural person (as defined in 120.16 of this
part) who is a citizen or national of the United States, or has been
lawfully admitted to the United States for permanent residence (and
maintains such a residence) under the Immigration and Nationality Act (8
U.S.C. 1101(a), 101(a), 60 Stat. 163). It also means any corporation,
business association, partnership, society, trust, or any other entity,
organization or group that is incorporated or organized to do business
in the United States. It also includes any governmental (federal, state
or local) entity. It does not include any foreign person as defined in
120.11 of this part.
(53 FR 11496, Apr. 7, 1988)
22 CFR 120.24 U.S. criminal statutes.
For purposes of this subchapter, the phrase U.S. criminal statutes
means:
(a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778);
(b) Section 11 of the Export Administration Act of 1979 (50 U.S.C.
App. 2410);
(c) Sections 793, 794, or 798 of Title 18, United States Code
(relating to espionage involving defense or classified information);
(d) Section 16 of the Trading with the Enemy Act (50 U.S.C. App.
16);
(e) Section 206 of the International Emergency Economic Powers Act
(relating to foreign assets controls; 50 U.S.C. 1705);
(f) Section 30A of the Securities Exchange Act of 1934 (15 U.S.C.
78dd-1) or section 104 of the Foreign Corrupt Practices Act (15 U.S.C.
78dd-2);
(g) Chapter 105 of Title 18, United States Code (relating to
sabotage);
(h) Section 4(b) of the Internal Security Act of 1950 (relating to
communication of classified information; 50 U.S.C. 783(b));
(i) Sections 57, 92, 101, 104, 222, 224, 225, or 226 of the Atomic
Energy Act of 1954 (42 U.S.C. 2077, 2122, 2131, 2134, 2272, 2274, 2275,
and 2276);
(j) Section 601 of the National Security Act of 1947 (relating to
intelligence identities protection; 50 U.S.C. 421);
(k) Section 603(b) or (c) of the Comprehensive Anti-Apartheid Act of
1986 (22 U.S.C. 5113(b) and (c)); and
(l) Section 371 of Title 18, United States Code (when it involves
conspiracy to violate any of the above statutes).
(53 FR 11496, Apr. 7, 1988, as amended at 54 FR 42497, Oct. 17, 1989)
22 CFR 120.24 Forms
22 CFR 120.25 Listing of forms referred to in this subchapter.
The forms referred to in this subchapter are available from the
following government agencies:
(a) Department of State:
(1) Application/License for permanent export of unclassified defense
articles and related technical data (Form
DSP-5).
(2) Application for registration (Form DSP-9).
(3) Application/License for temporary import of unclassified defense
articles (Form DSP-61).
(4) Application/License for temporary export of unclassified defense
articles (Form DSP-73).
(5) Nontransfer and use certificate (Form DSP-83).
(6) Application/License for permanent/temporary export or temporary
import of classified defense articles and related classified technical
data (Form DSP-85).
(7) Authority to Export Defense Articles and Defense Services sold
under the Foreign Military Sales program (Form DSP-94).
(b) Department of Commerce:
(1) International Import Certificate (Form ITA-645P/ATF-4522/DSP-53).
(2) Shipper's export declaration (Form No. 7525-V).
(c) Department of Defense:
Offer and acceptance (DD Form 1513).
(49 FR 47684, Dec. 6, 1984; 50 FR 12787, Apr. 1, 1985. Redesignated
at 53 FR 11496, Apr. 7, 1988)
22 CFR 120.25 Pt. 121
22 CFR 120.25 PART 121 -- THE UNITED STATES MUNITIONS LIST
Sec.
121.1 General. The United States Munitions List.
121.2 Interpretations of the United States Munitions List.
121.3 Aircraft and related articles.
121.4 Amphibious vehicles.
121.5 Apparatus and devices under Category IV(c).
121.6 Cartridge and shell casings.
121.7 Chemical agents.
121.8 End-items, components, accessories, attachments, parts,
firmware, software and systems.
121.9 Firearms.
121.10 Forgings, castings and machined bodies.
121.11 Military demolition blocks and blasting caps.
121.12 Military explosives.
121.13 Military fuel thickeners.
121.14 Propellants.
121.15 Vessels of war and special naval equipment.
Authority: Sec. 38, Arms Export Control Act, 90 Stat. 744 (22
U.S.C. 2778); E.O. 11958, 42 FR 4311; 22 U.S.C. 2658.
Source: 49 FR 47686, Dec. 6, 1984, unless otherwise noted.
22 CFR 120.25 Enumeration of Articles
22 CFR 121.1 General. The United States Munitions List.
(a) The following articles, services and related technical data are
designated as defense articles and defense services pursuant to sections
38 and 47(7) of the Arms Export Control Act (22 U.S.C. 2778 and
2794(7)). Changes in designations will be published in the Federal
Register. Information and clarifications on whether specific items are
defense articles and services under this subchapter may appear
periodically in the Munitions Control Newsletter published by the Office
of Munitions Control.
(b) Significant Military Equipment. An asterisk precedes certain
defense articles in the following list. The asterisk means that the
article is deemed to be ''significant military equipment'' to the extent
specified in 120.19. The asterisk is placed as a convenience to help
identify such articles.
*(a) Nonautomatic, semi-automatic and fully automatic firearms to
caliber .50 inclusive, and all components and parts for such firearms.
(See 121.9 and 123.16-123.19.)
(b) Riflescopes manufactured to military specifications, and
specifically designed or modified components therefor; firearm
silencers and suppressors, including flash suppressors.
*(c) Insurgency-counterinsurgency type firearms or other weapons
having a special military application (e.g. close assault weapons
systems) regardless of caliber and all components and parts therefor.
*(a) Guns over caliber .50, howitzers, mortars, and recoilless
rifles.
*(b) Military flamethrowers and projectors.
(c) Components, parts, accessories and attachments for the articles
in paragraphs (a) and (b) of this category, including but not limited to
mounts and carriages for these articles.
*(a) Ammunition for the arms in Categories I and II of this section.
(See 121.6.)
(b) Components, parts, accessories, and attachments for articles in
paragraph (a) of this category, including but not limited to cartridge
cases, powder bags, bullets, jackets, cores, shells (excluding shotgun
shells), projectiles, boosters, fuzes and components therefor, primers,
and other detonating devices for such ammunition. (See 121.6.)
(c) Ammunition belting and linking machines.
*(d) Ammunition manufacturing machines and ammunition loading
machines (except handloading ones).
*(a) Rockets (including but not limited to meteorological and other
sounding rockets), bombs, grenades, torpedoes, depth charges, land and
naval mines, as well as launchers for such defense articles, and
demolition blocks and blasting caps. (See 121.11.)
*(b) Launch vehicles and missile and anti-missile systems including
but not limited to guided, tactical and strategic missiles, launchers,
and systems.
(c) Apparatus, devices, and materials for the handling, control,
activation, monitoring detection, protection, discharge, or detonation
of the articles in paragraphs (a) and (b) of this category. (See
121.5.)
*(d) Missile and space vehicle powerplants.
*(e) Military explosive excavating devices.
*(f) Ablative materials fabricated or semi-fabricated from advanced
composites (e.g., silica, graphite, carbon, carbon/carbon, and boron
filaments) for the articles in this category that are derived directly
from or specifically developed or modified for defense articles.
*(g) Non/nuclear warheads for rockets and guided missiles.
(h) All specifically designed or modified components, parts,
accessories, attachments, and associated equipment for the articles in
this category.
*(a) Military explosives. (See 121.12.)
*(b) Military fuel thickeners. (See 121.13.)
(c) Propellants for the articles in Categories III and IV of this
section. (See 121.14.)
(d) Military pyrotechnics, except pyrotechnic materials having dual
military and commercial use.
(e) All compounds specifically formulated for the articles in this
category.
*(a) Warships, amphibious warfare vessels, landing craft, mine
warfare vessels, patrol vessels, auxiliary vessels and service craft,
experimental types of naval ships and any vessels specifically designed
or modified for military purposes. (See 121.15.)
*(b) Turrets and gun mounts, arresting gear, special weapons systems,
protective systems, submarine storage batteries, catapults and other
components, parts, attachments, and accessories specifically designed or
modified for combatant vessels.
(c)Mine sweeping equipment, components, parts, attachments and
accessories specifically designed or modified therefor.
(d) Harbor entrance detection devices, (magnetic, pressure, and
acoustic ones) and controls and components therefor.
*(e) Naval nuclear propulsion plants, their land prototypes, and
special facilities for their construction support, and maintenance.
This includes any machinery, device, component, or equipment
specifically developed, designed or modified for use in such plants or
facilities. (See 123.21.)
*(a) Military type armed or armored vehicles, military railway
trains, and vehicles specifically designed or modified to accommodate
mountings for arms or other specialized military equipment or fitted
with such items.
*(b) Military tanks, combat engineer vehicles, bridge launching
vehicles, half-tracks and gun carriers.
*(c) Self-propelled guns and howitzers.
(d) Military trucks, trailers, hoists, and skids specifically
designed, modified, or equipped to mount or carry weapons of Categories,
I, II and IV or for carrying and handling the articles in paragraph (a)
of Categories III and IV.
*(e) Military recovery vehicles.
*(f) Amphibious vehicles. (See 121.4.)
*(g) Engines specifically designed or modified for the vehicles in
paragraphs (a), (b), (c), and (f) of this category.
(h) All specifically designed or modified components and parts,
accessories, attachments, and associated equipment for the articles in
this category, including but not limited to military bridging and deep
water fording kits.
*(a) Aircraft, including but not limited to helicopters,
non-expansive balloons, drones, and lighter-than-air aircraft, which are
specifically designed, modified, or equipped for military purposes.
This includes but is not limited to the following military purposes:
gunnery, bombing, rocket or missile launching, electronic and other
surveillance, reconnaissance, refueling, aerial mapping, military
liaison, cargo carrying or dropping, personnel dropping, airborne
warning and control, and military training. (See 121.3.)
(b)*(1) Spacecraft, including manned and unmanned, active and passive
satellites (except those listed in Category VIII(b)(2).
(2) Non-military communication satellites (excluding ground stations
and associated equipment not enumerated elsewhere in 121.1).
*(c) Military aircraft engines, except reciprocating engines, and
spacecraft engines specifically designed or modified for the aircraft
and spacecraft in paragraphs (a) and (b) of this category.
*(d) Cartridge-actuated devices utilized in emergency escape of
personnel and airborne equipment (including but not limited to airborne
refueling equipment) specifically designed or modified for use with the
aircraft, spacecraft, and engines of the types in paragraphs (a), (b),
and (c) of this category.
(e) Launching and recovery equipment for the articles in paragraphs
(a) and (b) of this category, if the equipment is specifically designed
or modified for military use or for use with spacecraft. Fixed
land-based arresting gear is not included in this category.
(f) Power supplies and energy sources specifically designed or
modified for spacecraft.
*(g) Inertial navigation systems and all specifically designed
components, parts and accessories, except those systems or components
that are standard equipment in civil aircraft, including spare parts and
spare units to be used exclusively for the maintenance of inertial
navigation equipment incorporated in civil aircraft, and that are
certified by the Federal Aviation Administration (FAA) as being an
integral part of such aircraft. All exports of technical data related
to the design, development, production or manufacture of inertial
navigation equipment (regardless of accuracies) or its related parts,
components or subsystems are subject to the requirements of the
regulations contained in this subchapter. The export of technical data
related to the repair of parts, components, or subsystems of inertial
navigation systems (including accelerometers and gyroscopes) that are
not certified by the FAA as being an integral part of civil aircraft are
subject to the requirements of this subchapter. The provisions of XI(e)
and XII(c) are not applicable to such exports of technical data.
*(h) Developmental aircraft and components thereof which have a
significant military applicability, excluding such aircraft and
components that have been certified by the Federal Aviation
Administration and determined through the commodity jurisdiction
procedure specified in 120.5 of this subchapter. To be subject to the
export control jurisdiction of Department of Commerce for purposes of
section 17(c) of the Export Administration Act, as amended.
*(i) Ground effect machines (GEMS) specifically designed or modified
for military use, including but not limited to surface effect machines
and other air cushion vehicles, and all components, parts, and
accessories, attachments, and associated equipment specifically designed
or modified for use with such machines.
(j) Components, parts, accessories, attachments, and associated
equipment (including ground support equipment) specifically designed or
modified for the articles in paragraphs (a) through (i) of this
category, excluding aircraft tires and propellors used with
reciprocating engines.
(a) Military training equipment including but not limited to attack
trainers, radar target trainers, radar target generators, gunnery
training devices, antisubmarine warfare trainers, target equipment,
armament training units, operational flight trainers, air combat
training systems, radar trainers, navigation trainers, and simulation
devices related to defense articles.
(b) Components, parts, accessories, attachments, and associated
equipment specifically designed or modified for the articles in
paragraph (a) of this category.
(a) Body armor specifically designed, modified or equipped for
military use; articles, including but not limited to clothing,
designed, modified or equipped to protect against or reduce detection by
radar, infrared (IR) or other sensors; military helmets equipped with
communications hardware, optical sights, slewing devices or mechanisms
to protect against thermal flash or lasers, excluding standard military
helmets.
(b) Partial pressure suits and liquid oxygen converters used in
aircraft in Category VIII(a).
(c) Protective apparel and equipment specifically designed or
modified for use with the articles in paragraphs (a) through (d) in
Category XIV.
(d) Components, parts, accessories, attachments, and associated
equipment specifically designed or modified for use with the articles in
paragraphs (a), (b), and (c) of this category.
(a) Electronic equipment not included in Category XII of the
Munitions List which is assigned a military designation or is
specifically designed, modified or configured for military application.
This includes but is not limited to the following:
*(1) Underwater sound equipment, including but not limited to towed
arrays, electronic beam forming sonar, target classification equipment,
and spectrographic displays; search, acquisition, tracking, moving
target indication and imaging radar systems; active and passive
countermeasures and counter-countermeasures equipment; electronic
fuses; identification systems; command, control and communications
systems; and, regardless of designation, any experimental or
developmental electronic equipment specifically designed or modified for
military application, or for use with a military system and
(2) Sonic depth finders; underwater telephones; electro-mechanical
beam forming sonars and elementary sonobuoys; radios (including
transceivers); weather, navigation, and air traffic control radar
systems; navigation, guidance, object-locating equipment; displays;
and telemetering equipment.
(3) Armored coaxial cable capable of RF, optical, or high voltage
power transmission.
(b) Space electronics:
*(1) Electronic equipment specifically designed or modified for
spacecraft and spaceflight, and
(2) Electronic equipment specifically designed or modified for use
with non-military communications satellites.
*(c) Electronic systems or equipment specifically designed, modified,
configured, used or intended for use in search, reconnaissance,
collection, monitoring, direction-finding, display , analysis and
production of information from the electromagnetic spectrum for
intelligence or security purposes and electronic systems or equipment
designed or modified to counteract such surveillance and monitoring.
(d) Very High Speed Integrated Circuit (VHSIC) semiconductor devices
that are specifically designed for military applications and which have
a high-speed signal and image processing capability with an operational
parameter (gate-time-clock-frequency) or greater than 10 /11/ gates X
hertz for an individual semiconductor device.
(e) Components, parts, accessories, attachments, and associated
equipment specifically designed or modified for use or currently used
with the equipment in paragraphs (a) through (c) of this category,
except for such items as are in normal commercial use.
*(a) Fire control systems; gun and missile tracking and guidance
systems: military infrared, image intensifier and other night sighting
and night viewing equipment; military masers and military lasers; gun
laying equipment; range, position and height finders and spotting
instruments; aiming devices (electronic, gyroscopic, optic, and
acoustic); bomb sights, bombing computers, military television sighting
and viewing units, inertial platforms, and periscopes for the articles
of this section.
*(b) Inertial and other weapons or space vehicle guidance and control
systems; spacecraft guidance, control and stabilization systems; astro
compasses; and star trackers.
(c) Components, parts, accessories, attachments, and associated
equipment specifically designed or modified for the articles in
paragraphs (a) and (b) of this category, except for such items as are in
normal commercial use.
(a) Aerial cameras, space cameras, special purpose military cameras,
and specialized processing equipment therefor; military
photointerpretation, stereoscopic plotting, and photogrammetry
equipment, and components specifically designed or modified therefor.
(b) Speech scramblers, privacy devices, cryptographic devices and
software (encoding and decoding), and components specifically designed
or modified therefore, ancillary equipment, and protective appraratus
specifically designed or modified for such devices, components, and
equipment.
(c) Self-contained diving and underwater breathing apparatus
specifically designed or modified for a military purpose and components
specifically designed or modified therefore.
(d) Armor plate and structural materials (including but not limited
to plate, rolled and extruded shapes, bars and forgings, castings,
welding consumables, carbon/carbon and metal matrix composites)
specifically designed or modified for defense articles.
(e) Concealment and deception equipment, including but not limited to
special paints, decoys, and simulators and components, parts and
accessories specifically designed or modified therefor.
(f) Energy conversion devices for producing electrical energy from
nuclear, thermal, or solar energy, or from chemical reaction which are
specifically designed or modified for military application.
(g) Chemiluminescent compounds and solid state devices specifically
designed or modified for military application.
(h) Devices embodying particle beam and electromagnetic pulse
technology.
(i) Metal embrittling agents.
*(a) Chemical agents, including but not limited to lung irritants,
vesicants, lachrymators, tear gases (except tear gas formulations
containing 1% or less CN or CS), sternutators and irritant smoke, and
nerve gases and incapacitating agents. (See 121.7.)
*(b) Biological agents.
*(c) Equipment for dissemination, detection, and identification of,
and defense against, the articles in paragraphs (a) and (b) of this
category.
*(d) Nuclear radiation detection and measuring devices, manufactured
to military specification.
(e) Components, parts, accessories, attachments, and associated
equipment specifically designed or modified for the articles in
paragraphs (c) and (d) of this category.
*(a) Any article, material, equipment, or device which is
specifically designed or modified for use in the design, development, or
fabrication of nuclear weapons or nuclear explosive devices. (See
123.21 and Department of Commerce Export Regulations, 15 CFR part 378).
*(b) Any article, material, equipment, or device which is
specifically designed or modified for use in the devising, carrying out,
or evaluating of nuclear weapons tests or any other nuclear explosions,
except such items as are in normal commercial use for other purposes.
*All articles and technical data (as defined in 120.21) relating
thereto which are classified in the interests of national security and
which are not otherwise enumerated in the U.S. Munitions List.
Technical data (as defined in 120.21) relating to the defense
articles listed in the other categories of the United States Munitions
List. (See 125.4 for exemptions; see also 123.21.)
Defense services (as defined in 120.8) related to the defense
articles listed in the other categories of the United States Munitions
List.
*(a) Submersible vessels, manned and unmanned, designed or modified
for military purposes or having independent capability to maneuver
vertically or horizontally at depths below 1,000 feet or powered by
nuclear propulsion plants.
*(b) Submersible vessels, manned or unmanned, designed or modified in
whole or in part from technology developed by or for the U.S. Armed
Forces.
(c) Any of the articles in Categories VI, IX, XI, XIII, and elsewhere
in this subchapter specifically designed or modified for use with
submersible vessels, and oceanographic or associated equipment assigned
a military designation.
(d) Equipment, components, parts, accessories, and attachments
specifically designed or modified for any of the articles in paragraphs
(a) and (b) of this category.
Any article not specifically enumerated in the other categories of
the U.S. Munitions List which has substantial military applicability and
which has been specifically designed or modified for military purposes.
The decision on whether any article may be included in this category
shall be made by the Director of the Office of Munitions Control.
(49 FR 47686, Dec. 6, 1984; 49 FR 48536, Dec. 13, 1984; 50 FR
12787, Apr. 1, 1985, as amended at 51 FR 47014, Dec. 30, 1986; 53 FR
11496, Apr. 7, 1988; 56 FR 23020, May 20, 1991)
22 CFR 121.2 Interpretations of the United States Munitions List.
The following interpretations (listed alphabetically) explain and
amplify the terms used in 121.1. These interpretations have the same
force as if they were a part of the United States Munitions List
category to which they refer.
22 CFR 121.3 Aircraft and related articles.
In Category VIII, ''aircraft'' means aircraft designed, modified, or
equipped for a military purpose, including aircraft described as
''demilitarized.'' All aircraft bearing an original military designation
are included in Category VIII. However, the following aircraft are not
included so long as they have not been specifically equipped,
re-equipped, or modified for military operations:
(a) Cargo aircraft bearing ''C'' designations and numbered C-45
through C-118 inclusive, C-121 through C-125 inclusive, and C-131, using
reciprocating engines only.
(b) Trainer aircraft bearing ''T'' designations and using
reciprocating engines or turboprop engines with less than 600 horsepower
(s.h.p.).
(c) Utility aircraft bearing ''U'' designations and using
reciprocating engines only.
(d) All liaison aircraft bearing an ''L'' designation.
(e) All observation aircraft bearing ''O'' designations and using
reciprocating engines.
22 CFR 121.4 Amphibious vehicles.
An ''amphibious vehicle'' in Category VII(f) is an automotive vehicle
or chassis which embodies all-wheel drive, is equipped to meet special
military requirements, and which has sealed electrical systems or
adaptation features for deep water fording.
22 CFR 121.5 Apparatus and devices under Category IV(c).
Category IV includes but is not limited to the following: Fuzes and
components for the items listed in that category, bomb racks and
shackles, bomb shackle release units, bomb ejectors, torpedo tubes,
torpedo and guided missile boosters, guidance system equipment and
parts, launching racks and projectors, pistols (exploders), igniters,
fuze arming devices, intervalometers, guided missile launchers and
specialized handling equipment, and hardened missile launching
facilities.
22 CFR 121.6 Cartridge and shell casings.
Cartridge and shell casings are included in Category III unless,
prior to export, they have been rendered useless beyond the possibility
of restoration for use as a cartridge or shell casing by means of
heating, flame treatment, mangling, crushing, cutting, or popping.
22 CFR 121.7 Chemical agents.
A chemical agent in Category XIV(a) is a substance having military
application which by its ordinary and direct chemical action produces a
powerful physiological effect. The term ''chemical agent'' includes,
but is not limited to, the following chemical compounds:
(a) Lung irritants:
(1) Diphenylcyanoarsine (DC).
(2) Fluorine (but not fluorene).
(3) Trichloronitro methane (chloropicrin PS).
(b) Vesicants:
(1) B-Chlorovinyldichloroarsine (Lewisite, L).
(2) Bis(dichloroethyl)sulphide (Mustard Gas, HD or H).
(3) Ethyldichloroarsine (ED).
(4) Methyldichloroarsine (MD).
(c) Lachrymators and tear gases:
(1) A-Bromobenzyl cyanide (BBC).
(2) Chloroacetophenone (CN).
(3) Dibromodimethyl ether.
(4) Dichlorodimethyl ether (ClCi).
(5) Ethyldibromoarsine.
(6) Phenylcarbylamine chloride.
(7) Tear gas solutions (CNB and CNS).
(8) Tear gas orthochlorobenzalmalononitrile (CS).
(d) Sternutators and irritant smokes:
(1) Diphenylamine chloroarsine (Adamsite, DM).
(2) Diphenylchloroarsine (BA).
(3) Liquid pepper.
(e) Nerve agents, gases and aerosols. These are toxic compounds
which affect the nervous system, such as:
(1) Dimethylaminoethoxycyanophosphine oxide (GA).
(2) Methylisopropoxyfluorophosphine oxide (GB).
(3) Methylpinacolyloxyfluoriphosphine oxide (GD).
(f) Antiplant chemicals, such as: Butyl
2-chloro-4-fluorophenoxyacetate (LNF).
22 CFR 121.8 End-items, components, accessories, attachments, parts,
firmware, software and systems.
(a) An ''end-item'' is an assembled article ready for its intended
use. Only ammunition, fuel or another energy source is required to
place it in an operating state.
(b) A ''component'' is an item which is useful only when used in
conjunction with an end-item. A major component includes any assembled
element which forms a portion of an end-item without which the end-item
is inoperable. (Example: airframes, tail sections, transmissions, tank
treads, hulls, etc.) A minor component includes any assembled element of
a major component.
(c) ''Accessories'' and ''attachments'' are associated equipment for
any component, end-item or system, and which are not necessary for their
operation, but which enhance their usefulness or effectiveness.
(Examples: riflescopes, special paints, etc.)
(d) A ''part'' is any single unassembled element of a major or a
minor component, accessory, or attachment which is not normally subject
to disassembly without the destruction or the impairment of design use.
(Examples: rivets, wire, bolts, etc.)
(e) Firmware and any related unique support tools (such as computers,
linkers, editors, test case generators, diagnostic checkers, library of
functions and system test diagnostics) specifically designed for
equipment or systems covered under any category of the United States
Munitions List are considered as part of the end-item or component.
''Firmware'' includes but is not limited to circuits into which software
has been programmed.
(f) ''Software'' includes but is not limited to the system functional
design, logic flow, algorithms, application programs, operating systems
and support software for design, implementation, test, operation,
diagnosis and repair. A person who intends to export software only
should, unless it is specifically enumerated in 121.1, apply for a
technical data license pursuant to part 125 of this subchapter.
(g) A ''system'' is a combination of end-items, components, parts,
accessories, attachments, firmware or software, specifically designed,
modified or adapted to operate together to perform a specialized
military function.
22 CFR 121.9 Firearms.
(a) Category I includes revolvers, pistols, rifles, carbines, fully
automatic rifles, submachine guns, machine pistols and machine guns to
caliber .50, inclusive. It includes combat shotguns. It excludes other
shotguns with barrels 18'' or longer, BB, pellet, and muzzle loading
(black powder) firearms.
(b) A ''firearm'' is a weapon not over .50 caliber which is designed
to expel a projectile by the action of an explosive or which may be
readily converted to do so.
(c) A ''rifle'' is a shoulder firearm which can discharge a bullet
through a rifled barrel 16 inches or longer.
(d) A ''carbine'' is a lightweight shoulder firearm with a barrel
under 16 inches in length.
(e) A ''pistol'' is a hand-operated firearm having a chamber integral
with or permanently aligned with the bore.
(f) A ''revolver'' is a hand-operated firearm with a revolving
cylinder containing chambers for individual cartridges.
(g) A ''submachine gun'', ''machine pistol'' or ''machine gun'' is a
firearm originally designed to fire, or capable of being fired, fully
automatically by a single pull of the trigger.
22 CFR 121.10 Forgings, castings and machined bodies.
Articles on the United States Munitions List include articles in a
partially completed state (such as forgings, castings, extrusions and
machined bodies) which have reached a stage in manufacture where they
are clearly identifiable as defense articles. If the end-item is an
article on the United States Munitions List (including components,
accessories, attachments and parts as defined in 121.8), then the
particular forging, casting, extrusion, machined body, etc., is
considered a defense article subject to the controls of this subchapter,
except for such items as are in normal commercial use.
22 CFR 121.11 Military demolition blocks and blasting caps.
Military demolition blocks and blasting caps referred to in Category
IV(a) do not include the following articles:
(a) Electric squibs.
(b) No. 6 and No. 8 blasting caps, including electric ones.
(c) Delay electric blasting caps (including No. 6 and No. 8
millisecond ones).
(d) Seismograph electric blasting caps (including SSS, Static-Master,
Vibrocap SR, and SEISMO SR).
(e) Oil well perforating devices.
22 CFR 121.12 Military explosives.
Military explosives in Category V include, but are not limited to,
the following:
(a) Ammonium picrate.
(b) Black powder made with potassium nitrate or sodium nitrate.
(c) Cyclotetramethylenetetranitramine (HMX).
(d) Cyclotrimethylenetrinitramine (RDX, Cyclonite, Hexogen or T4).
(e) Dinitronaphthalene.
(f) Ethylenedinitramine.
(g) Hexanitrodiphenylamine.
(h) Nitroglycerin.
(i) Nitrostarch.
(j) Pentaerythritol tetranitrate (penthrite, pentrite or PETN).
(k) Tetranitronaphthalene.
(l) Trinitroanisol.
(m) Trinitronaphthalene.
(n) Trinitrophenol (picric acid).
(o) Trinitrophenylmethylnitramine (Tetryl).
(p) Trinitrotoluene (TNT).
(q) Trinitroxylene.
(r) Ammonium perchlorate nitrocellulose (military grade).
(s) Aluminum powder (spherical) with an average particle size of 100
micrometer diameter or less and a purity of 97% or greater.
(t) Any combinations of the above.
22 CFR 121.13 Military fuel thickeners.
Military fuel thickeners in Category V include compounds (e.g.,
octal) or mixtures of such compounds (e.g., napalm) specifically
formulated for the purpose of producing materials which, when added to
petroleum products, provide a gel-type incendiary material for use in
bombs, projectiles, flame throwers, or other defense articles.
22 CFR 121.14 Propellants.
Propellants in Category V include, but are not limited to, the
following:
(a) Propellant powders, including smokeless shotgun powder.
(b) Hydrazine (including Monomethyl hydrazine and symmetrical
dimethyl hydrazine, but excluding hydrazine hydrate).
(c) Unsymmetrical dimethyl hydrazine.
(d) Hydrogen peroxide of over 85 percent concentration.
(e) Nitroguanidine or picrite.
(f) Nitrocellulose with nitrogen content of over 12.20 percent.
(g) Nitrogen tetroxide (nitrogen dioxide, dinitrogen tetroxide).
(h) Other solid propellant compositions, including but not limited
to, the following:
(1) Single base (nitrocellulose).
(2) Double base (nitrocellulose, nitroglycerin).
(3) Triple base (nitrocellulose, nitroglycerin, nitroguanidine).
(4) Composite of nitroglycerin, ammonium perchlorate, potassium
perchlorate, nitronium perchlorate, guanidine (guanidinium) perchlorate,
nitrogen tetroxide, ammonium nitrite or nitrocellulose with plastics,
metal fuels, or rubbers added; and compounds composed only of fluorine
and halogens, oxygen, or nitrogen.
(5) Special purpose high energy solid military fuels with a chemical
base.
(i) Other liquid propellant compositions, including but not limited
to, the following:
(1) Monopropellants (hydrazine, hydrazine nitrate, and water).
(2) Bipropellants (hydrazine, fuming nitric acid HNO3).
(3) Special purpose chemical base high energy liquid military fuels
and oxidizers.
22 CFR 121.15 Vessels of war and special naval equipment.
Vessels of war in Category VI include, but are not limited, to, the
following:
(a) Combatant vessels:
(1) Warships (including nuclear-powered versions):
(i) Aircraft carriers (CV, CVN)
(ii) Battleships (BB)
(iii) Cruisers (CA, CG, CGN)
(iv) Destroyers (DD, DDG)
(v) Frigates (FF, FFG)
(vi) Submarines (SS, SSN, SSBN, SSG, SSAG)
(2) Other Combatant Classifications:
(i) Patrol Combatants (PG, PHM)
(ii) Amphibious Helicopter/Landing Craft Carriers (LHA, LPD, LPH)
(iii) Amphibious Landing Craft Carriers (LKA, LPA, LSD, LST)
(iv) Amphibious Command Ships (LCC)
(v) Mine Warfare Ships (MSO)
(b) Auxiliaries:
(1) Mobile Logistics Support:
(i) Under way Replenishment (AD, AF, AFS, AO, AOE, AOR)
(ii) Material Support (AD, AR, AS)
(2) Support Ships:
(i) Fleet Support Ships (ARS, ASR, ATA, ATF, ATS)
(ii) Other Auxiliaries (AG, AGDS, AGF, AGM, AGOR, AGOS, AGS, AH, AK,
AKR, AOG, AOT, AP, APB, ARC, ARL, AVM, AVT)
(c) Combatant Craft:
(1) Patrol Craft:
(i) Coastal Patrol Combatants (PB, PCF, PCH, PTF)
(ii) River, Roadstead Craft (ATC, PBR)
(2) Amphibious Warfare Craft:
(i) Landing Craft (AALC, LCAC, LCM, LCPL, LCPR, LCU, LWT, SLWT)
(ii) Special Warfare Craft (LSSC, MSSC, SDV, SWCL, SWCM)
(3) Mine Warfare Craft:
(i) Mine Countermeasures Craft (MSB, MSD, MSI, MSM, MSR)
(d) Support and Service Craft:
(1) Tugs (YTB, YTL, YTM)
(2) Tankers (YO, YOG, YW)
(3) Lighters (YC, YCF, YCV, YF, YFN, YFNB, YFNX, YFR, YFRN, YFU, YG,
YGN, YOGN, YON, YOS, YSR, YWN)
(4) Floating Dry Docks (AFDB, AFDL, AFDM, ARD, ARDM, YFD)
(5) Miscellaneous (APL, DSRV, DSV, IX, NR, YAG, YD, YDT, YFB, YFND,
YEP, YFRT, YHLC, YM, YNG, YP, YPD, YR, YRB, YRBN, YRDH, YRDM, YRR, YRST,
YSD)
(e) Coast Guard Patrol and Service Vessels and Craft:
(1) Coast Guard Cutters (CGC, WHEC, WMEC)
(2) Patrol Craft (WPB)
(3) Icebreakers (WAGB)
(4) Oceanography Vessels (WAGO)
(5) Special Vessels (WIX)
(6) Buoy Tenders (WLB, WLM, WLI, WLR, WLIC)
(7) Tugs (WYTM, WYTL)
(8) Light Ships (WLV)
(49 FR 47684, Dec. 6, 1984; 49 FR 48536, Dec. 13, 1984)
22 CFR 121.15 Pt. 122
22 CFR 121.15 PART 122 -- REGISTRATION OF MANUFACTURERS AND EXPORTERS
Sec.
122.1 Registration requirements.
122.2 Submission of registration statement.
122.3 Registration fees.
122.4 Notification of changes in information furnished by
registrants.
122.5 Maintenance of records by registrants.
Authority: Sec. 38, Arms Export Control Act, 90 Stat. 744 (22
U.S.C. 2778); E.O. 11958, 42 FR 4311; 22 U.S.C. 2658, unless otherwise
noted.
Source: 49 FR 47690, Dec. 6, 1984, unless otherwise noted.
22 CFR 122.1 Registration requirements.
(a) General. Any person who engages in the United States in the
business of either manufacturing or exporting defense articles or
furnishing defense services is required to register with the Office of
Munitions Control. Manufacturers who do not engage in exporting must
nevertheless register.
(b) Exemptions. Registration is not required for:
(1) Officers and employees of the United States Government acting in
an official capacity.
(2) Persons whose pertinent business activity is confined to the
production of unclassified technical data only.
(3) Persons all of whose manufacturing and export activities are
licensed under the Atomic Energy Act of 1954, as amended.
(4) Persons who engage only in the fabrication of articles for
experimental or scientific purposes, including research and development.
(c) Purpose. Registration is primarily a means to provide the U.S.
Government with necessary information on who is involved in certain
manufacturing and exporting activities. Registration does not confer
any export rights or privileges. It is generally a precondition to the
issuance of any license or other approval under this subchapter.
(49 FR 47690, Dec. 6, 1984, as amended at 53 FR 11496, Apr. 7, 1988)
22 CFR 122.2 Submission of registration statement.
(a) General. The Department of State Form DSP-9 (Registration
Statement) and the transmittal letter required by paragraph (b) of this
subsection must be submitted by an intended registrant with a payment by
check or money order payable to the Department of State of one of the
fees prescribed in 122.3(a) of this subchapter. The Registration
Statement and transmittal letter must be signed by a senior officer who
has been empowered by the intended registrant to sign such documents.
The intended registrant shall also submit documentation that
demonstrates that it is incorporated or otherwise authorized to do
business in the United States. The Office of Munitions Control will
return to sender any Registration Statement that is incomplete, or that
is not accompanied by the required letter or payment of the proper
registration fee.
(b) Transmittal letter. A letter of transmittal, signed by an
authorized senior officer of the intended registrant, shall accompany
each Registration Statement.
(1) The letter shall state whether the chief executive officer,
president, vice-presidents, other senior officers or officials (e.g.,
comptroller, treasurer, general counsel) or any member of the board of
directors:
(i) Has ever been indicted for or convicted of violating any of the
U.S. criminal statutes enumerated in 120.24 of this subchapter; or
(ii) Is ineligible to contract with, or to receive a license or other
approval to import defense articles or defense services from, or to
receive an export license or other approval from, any agency of the U.S.
Government.
(2) The letter shall also declare whether the intended registrant is
owned or controlled by foreign persons (as defined in 120.11 of this
subchapter). If the intended registrant is owned or controlled by
foreign persons, the letter shall also state whether the intended
registrant is incorporated or otherwise authorized to engage in business
in the United States.
(c) Definition. For purposes of this section, ''ownership'' means
that more than 50 percent of the outstanding voting securities of the
firm are owned by one or more foreign persons. ''Control'' means that
one or more foreign persons have the authority or ability to establish
or direct the general policies or day-to-day operations of the firm.
Control is presumed to exist where foreign persons own 25 percent or
more of the outstanding voting securities if no U.S. persons control an
equal or larger percentage. The standards for control specified in 22
CFR 60.2(c) also provide guidance in determining whether control in fact
exists.
(53 FR 11496, Apr. 7, 1988, as amended at 54 FR 42497, Oct. 17, 1989)
22 CFR 122.3 Registration fees.
(a) Fees. A person who is required to register may do so for a
period of 1 to 5 years upon submission of a completed form DSP-9,
transmittal letter, and payment of a fee as follows:
1 year $250
2 years 500
3 years 700
4 years 850
5 years 1,000
(b) Lapses in registration. A registrant who fails to renew a
registration after its lapse and, after an intervening period, seeks to
register again must pay registration fees for any part of such
intervening period during which the registrant engaged in the business
of manufacturing or exporting defense articles or defense services.
(c) Refund of fee. Fees paid in advance for future years of a
multiple year registration will be refunded upon request if the
registrant ceases to engage in the manufacture or export or defense
articles and defense services. A request for a refund must be submitted
to the Office of Munitions Control prior to the beginning of any year
for which a refund is claimed.
(53 FR 11497, Apr. 7, 1988)
22 CFR 122.4 Notification of changes in information furnished by
registrants.
(a) A registrant must, within five days of the event, notify the
Office of Munitions Control by registered mail if:
(1) Any of the persons referred to in 122.2(b) are indicted for or
convicted of violating any of the U.S. criminal statutes enumerated in
120.24 of this subchapter, or become ineligible to contract with, or to
receive a license or other approval to import defense articles or
defense services from, or to receive an export license or other approval
from any agency of the U.S. government; or
(2) There is a material change in the information contained in the
Registration Statement, including a change in the senior officers; the
establishment, acquisition or divestment of a subsidiary or foreign
affiliate; a merger; a change of location; or the dealing in an
additional category of defense articles or defense services.
(b) A registrant must notify the Office of Munitions Control by
registered mail at least sixty days in advance of any intended planned
sale or transfer to a foreign person of ownership or control of the
registrant or any entity thereof. Such notice does not relieve the
registrant from obtaining the approval required under this subchapter
for the export of defense articles or defense services to a foreign
person, including the approval required prior to disclosing technical
data. Such notice provides the Office of Munitions Control with the
information necessary to determine whether the authority of section
38(g)(6) of the Arms Export Control Act regarding licenses or other
approvals for certain sales or transfers (as opposed to exports) of
articles or data should be invoked (see 126.1(f) of this subchapter).
(53 FR 11497, Apr. 7, 1988, as amended at 54 FR 42497, Oct. 17, 1989)
22 CFR 122.5 Maintenance of records by registrants.
(a) A person who is required to register must maintain records
concerning the manufacture, acquisition and disposition of defense
articles and the provision of defense services by the registrant. All
such records must be maintained for a period of 6 years. The Director,
Office of Munitions Control, may prescribe a longer or shorter period in
individual cases.
(b) Records maintained under this section shall be available at all
times for inspection and copying by the Director, Office of Munitions
Control or a person designated by the Director (the Director of the
Diplomatic Security Service or a person designated by the Director of
the Diplomatic Security Service or another designee), or the
Commissioner of the U.S. Customs Service or a person designated by the
Commissioner.
(49 FR 47690, Dec. 6, 1984, as amended at 54 FR 42497, Oct. 17, 1989)
22 CFR 122.5 Pt. 123
22 CFR 122.5 PART 123 -- LICENSES FOR THE EXPORT OF DEFENSE ARTICLES
Sec.
123.1 Requirement for export licenses.
123.2 Imports.
123.3 Temporary import (intransit) licenses.
123.4 Temporary export licenses.
123.5 (Reserved)
123.6 Foreign trade zones and U.S. Customs bonded warehouses.
123.7 Exports to warehouses or distribution points outside the United
States.
123.8 Special controls on vessels of war, military aircraft and
satellites.
123.9 Country of ultimate destination.
123.10 Non-transfer and use assurances and Congressional
notification.
123.11 Movements of aircraft and vessels of war outside the United
States.
123.12 Shipments between U.S. possessions.
123.13 Domestic aircraft shipments via a foreign country.
123.14 Import certificate/delivery verification procedure.
123.15 (Reserved)
123.16 Obsolete firearms and models.
123.17 Exports of firearms and ammunition for personal use.
123.18 Firearms for personal use of members of the U.S. Armed Forces
and civilian employees of the U.S. Government.
123.19 Minor components.
123.20 Canadian and Mexican border shipments.
123.21 Nuclear materials.
123.22 Applications for licenses.
123.23 Renewal and disposition of licenses.
123.24 Port of exit or entry.
123.25 Filing of export and intransit licenses and shipper's export
declarations with district directors of customs.
123.26 Shipments by mail.
123.27 Temporary exports.
Authority: Sec. 38, Arms Export Control Act, 90 Stat. 744 (22
U.S.C. 2778); E.O. 11958, 42 FR 4311; 22 U.S.C. 2658.
Source: 49 FR 47691, Dec. 6, 1984, unless otherwise noted.
22 CFR 123.1 Requirement for export licenses.
(a) Any person who intends to export a defense article must obtain a
license from the Office of Munitions Control prior to the export unless
the export qualifies for an exemption under the provisions of this
subchapter.
(b) As a condition to the issuance of a license or other approval,
the Office of Munitions Control may require all pertinent documentary
information regarding the proposed transaction.
(c) An application for a license under this part for the permanent
export of defense articles sold commercially must be accompanied by a
copy of a purchaser order, letter of intent or other appropriate
documentation. In cases involving the U.S. Foreign Military Sales
program, three copies of the relevant Department of Defense Form 1513
are required, unless the procedures of 126.4(c) or 126.6 are followed.
(d) Provisions for the export of classified defense articles and
defense services are contained in part 125 of this subchapter.
(49 FR 47691, Dec. 6, 1984, as amended at 53 FR 11497, Apr. 7, 1988)
22 CFR 123.2 Imports.
No defense article may be imported into the United States unless (a)
it was previously exported temporarily under a license issued by the
Office of Munitions Control; or (b) it constitutes a temporary
import/intransit shipment licensed under 123.3; or (c) its import is
authorized by the Department of the Treasury (see 27 CFR parts 47, 178
and 179).
22 CFR 123.3 Temporary import (intransit) licenses.
A temporary import license (DSP-61) issued by the Office of Munitions
Control is required for the intransit shipment of any unclassified
defense article. This requirement applies to any temporary import into
the United States of a defense article for overhaul, repair,
modification, or other pct return of the defense article to the country
from which it was sent. The Office of Munitions Control may require an
appropriate bond. The temporary import license must also be used for
other temporary unclassified imports, such as a temporary import of
unclassified defense articles intransit to a third country. It may also
be used if a defense article is imported into the United States for
incorporation into another article and is then to be returned to the
country of origin or transshipped to another country. (See 125.8 for
classified imports.)
22 CFR 123.4 Temporary export licenses.
The Office of Munitions Control may issue a license for the temporary
export of unclassified defense articles (DSP-73). Such licenses are
valid only if (a) the article will be exported for a period of less than
twenty-four months and will be returned to the United States and (b)
transfer of title will not occur during the period of temporary export.
Accordingly, articles exported pursuant to a temporary export license
may not be sold or otherwise permanently transferred to a foreign person
while they are overseas under a temporary export license. A renewal of
the license or other written approval must be obtained from the Office
of Munitions Control if the article is to remain outside the United
States beyond the period for which the license is valid.
123.5 (Reserved)
22 CFR 123.6 Foreign trade zones and U.S. Customs bonded warehouses.
Foreign trade zones and U.S. Customs bonded warehouses are considered
integral parts of the United States for the purpose of this subchapter.
An export license is therefore not required for shipment between the
United States and a foreign trade zone or a Customs bonded warehouse.
However, an export license is required for all shipments of articles on
the U.S Munitions List from foreign trade zones and U.S. Customs bonded
warehouses to foreign countries, regardless of how the articles reached
the zone or warehouse.
22 CFR 123.7 Exports to warehouses or distribution points outside the
United States.
A license to export defense articles to a warehouse or distribution
point outside the United States for subsequent resale will normally be
granted only if an agreement has been approved pursuant to 124.14 of
this subchapter.
22 CFR 123.8 Special controls on vessels of war, military aircraft and
satellites.
(a) Transferring registration or control to a foreign person of any
aircraft, vessel, or satellite on the United States Munitions List is an
export for purposes of this subchapter and requires a license or written
approval from the Office of Munitions Control. This requirement applies
whether the aircraft, vessel, or satellite is physically located in the
United States or abroad.
(b) The registration in a foreign country of any aircraft, vessel or
satellite on the United States Munitions List which is not registered in
the United States but which is located in the United States constitutes
an export. A license or written approval from the Office of Munitions
Control is therefore required. Such transactions may also require the
prior approval of the Maritime Administration, Department of
Transportation, or the Federal Aviation Administration, Department of
Transportation or other agencies of the U.S. Government.
22 CFR 123.9 Country of ultimate destination.
(a) The country designated as the country of ultimate destination on
an application for an export license, or on a shipper's export
declaration where an exemption is claimed under this subchapter, must be
the country of ultimate end-use. The written approval of the Department
of State must be obtained before reselling, diverting, transferring,
transshipping, or disposing of a defense article in any country other
than the country of ultimate destination as stated on the export
license, or on the shipper's export declaration in cases where an
exemption is claimed under this subchapter. Exporters must ascertain
the specific end-user and end-use prior to submitting an application to
the Office of Munitions Control or claiming an exemption under this
subchapter. End-use must be confirmed and should not be assumed.
(b) The exporter shall incorporate the following statement as an
integral part of the shipper's export declaration, the bill of lading,
and the invoice whenever defense articles on the U.S. Munitions List are
to be exported:
These commodities are authorized by the U.S. Government for export
only to (country of ultimate destination). They may not be resold,
diverted, transferred, transshipped, or otherwise be disposed of in any
other country, either in their original form or after being incorporated
through an intermediate process into other end-items, without the prior
written approval of the U.S. Department of State.
22 CFR 123.10 Non-transfer and use assurances and Congressional
notification.
(a) An application for a license (Form DSP-5) to export significant
military equipment defined in 120.19 must be accompanied by a
nontransfer and use certificate (Form DSP-83) at the time of submission
to the Office of Munitions Control. This form is to be executed by the
foreign consignee and foreign end-user. The certificate stipulates
that, except as specifically authorized by prior written approval of the
Department of State, the foreign consignee and foreign end-user will not
reexport, resell or otherwise dispose of the significant military
equipment enumerated in the application outside the country named as the
location of the foreign end-use.
(b) The DSP-83 may be accepted at a time other than that specified in
paragraph (a) of this section if there are special reasons for doing so.
A statement of such reasons must accompany the application for a
license.
(c) The Office of Munitions Control may also require a DSP-83 for the
export of any other defense articles or defense services.
(d) When a DSP-83 is required for an export of any defense article or
defense service to a non-governmental foreign end-user, the Office of
Munitions Control may require as a condition of issuing the license that
the appropriate authority of the government of the country of ultimate
destination also execute the certificate. This means that the foreign
government undertakes not to authorize the reexport, resale, or other
disposition of the defense articles or defense service enumerated in the
application without ensuring that the prior written consent of the U.S.
Government has been obtained.
(e) All exports of major defense equipment sold under a contract in
the amount of $14,000,000 or more or of defense articles and defense
services sold under a contract in the amount of $50,000,000 or more may
take place only after the Office of Munitions Control notifies the
exporter that thirty calendar days have elapsed since receipt by the
Congress of the certification required by the Arms Export Control Act.
The issuance of a license or other written approval shall serve as
notification that this period has elapsed. Persons who intend to export
defense articles and services pursuant to the exemption in 126.5 under
the circumstances described in the first sentence of this subsection
must notify the Office of Munitions Control by letter of the intended
export and provide a DSP-83 signed by the foreign consignee and
end-user. Such exports may take place after the Office of Munitions
Control notifies the exporter by letter that the thirty day period has
elapsed.
(49 FR 47691, Dec. 6, 1984, as amended at 51 FR 47014, Dec. 30, 1986)
22 CFR 123.11 Movements of aircraft and vessels of war outside the
United States.
(a) General. A license issued by the Office of Munitions Control is
required whenever a privately-owned aircraft or vessel of war on the
United States Munitions List makes a voyage outside the United States.
(b) Exemption. An export license is not required when a vessel or
aircraft referred to in section (a) departs from the United States and
does not enter the territorial waters or airspace of a foreign country
if no defense articles are carried as cargo. Such a vessel or aircraft
may not enter the territorial waters or airspace of a foreign country
before returning to the United States, or carry as cargo any defense
article, without a temporary export license (Form DSP-73) from the
Department of State. (See 123.4).
22 CFR 123.12 Shipments between U.S. possessions.
An export license is not required for the shipment of defense
articles between the United States, the Commonwealth of Puerto Rico, and
U.S. possessions. A license is required, however, for the export of
defense articles from these areas to foreign countries.
22 CFR 123.13 Domestic aircraft shipments via a foreign country.
A license is not required for the shipment by air of a defense
article from one location in the United States to another location in
the United States via a foreign country. The pilot of the aircraft
must, however, file a written statement with the district director of
customs at the port of exit in the United States. The original
statement must be filed at the time of exit with the district director
of customs. A duplicate must be filed at the port of reentry with the
district director of customs, who will duly endorse it and transmit it
to the district director of customs at the port of exit. The statement
will be as follows:
Under penalty according to Federal law, the undersigned certifies and
warrants that all the information in this document is true and correct,
and that the equipment listed below is being shipped from (U.S. port of
exit) via (foreign county) to (U.S. port of entry), which is the final
destination in the United States.
Quantity:
Equipment:
Value:
Signed:
Endorsement: Customs Inspector.
Port of Exit:
Date:
Signed:
Endorsement: Customs Inspector.
Port of Entry:
Date:
22 CFR 123.14 Import certificate/delivery verification procedure.
The United States and a number of foreign countries have agreed on
procedures designed to assure that a commodity imported into their
territory will not be diverted, transshipped, or reexported to another
destination except in accordance with export control regulations of the
importing country. This is known as the Import Certificate/Delivery
Verification Procedure (IC/DV) and may be invoked with respect to
defense articles.
(a) Exports. The Department of State may require the IC/DV procedure
on proposed exports of defense articles to non-government entities in
the following countries: Austria, Belgium, Denmark, France, Federal
Republic of Germany, Greece, Hong Kong, Italy, Japan, Luxembourg, the
Netherlands, Norway, Portugal, Turkey, and the United Kingdom. In such
cases, U.S. exporters must submit both an export license application
(the completed Form DSP-5) and the original Import Certificate, which
must be provided and authenticated by the government of the importing
country. This document verifies that the foreign importer complied with
the import regulations of the government of the importing country and
that the importer declared the intention not to divert, transship or
reexport the material described therein without the prior approval of
that government. After delivery of the commodities to the foreign
consignee, the Department of State may also require U.S. exporters to
furnish Delivery Verification documentation from the government of the
importing country. This documentation verifies that the delivery was in
accordance with the terms of the approved export license. Both the
''Import Certificate'' and the ''Delivery Verification'' must be
furnished to the U.S. exporter by the foreign importer.
(b) Triangular transactions. When a transaction involves three or
more countries which have adopted the IC/DV procedure, the governments
of these countries may stamp a triangular symbol on the Import
Certificate. This symbol is usually placed on the Import Certificate
when the applicant for the Import Certificate (the importer) stated
either (1) that there is uncertainty whether the items covered by the
Import Certificate will be imported into the country issuing the Import
Certificate; (2) that he or she knows that the items will not be
imported into the country issuing the Import Certificate; or (3) that,
if the items are to be imported into the country issuing the Import
Certificate, they will subsequently be reexported to another
destination. Thus, it is possible that the ultimate consignee and the
country of ultimate destination will not coincide with that of the
importer. All parties, including the ultimate consignee in the country
of ultimate destination, must be shown on the completed Import
Certificate.
123.15 (Reserved)
22 CFR 123.14 Exemptions
22 CFR 123.16 Obsolete firearms and models.
(a) District directors of customs may permit the export without a
license of nonautomatic firearms covered by Category I(a) of 121.1 if
they were manufactured in or before 1898, as well as replicas of such
firearms.
(b) District directors of customs may permit the export without a
license of the following two categories of items:
(1) Packing cases specially designed to carry defense articles; and
(2) Unclassified models or mock-ups of defense articles, provided
that such models or mock-ups are nonoperable and do not reveal any
technical data in excess of that which is exempted from the licensing
requirements of 125.4(b). U.S. persons who avail themselves of this
exemption related to models and mock-ups must provide a written
certification to the district director of customs that these conditions
are met. This exemption does not imply that the Office of Defense Trade
Controls will approve the export of any defense articles for which
models or mock-ups have been exported pursuant to this exemption.
(49 FR 47691, Dec. 6, 1984, as amended at 56 FR 55458, Oct. 28, 1991)
22 CFR 123.17 Exports of firearms and ammunition for personal use.
(a) District directors of customs may permit U.S. persons to export
temporarily from the United States without a license not more than three
nonautomatic firearms in Category I(a) of 121.1 and not more than 1,000
cartridges therefor, provided that:
(1) A declaration by the U.S. person and an inspection by a customs
officer is made;
(2) The firearms and accompanying ammunition must be with the U.S.
person's baggage or effects, whether accompanied or unaccompanied (but
not mailed); and
(3) They must be for that person's exclusive use and not for resale
or other transfer of ownership. The foregoing exemption is not
applicable to a crew-member of a vessel or aircraft unless the
crew-member declares the firearms to a customs officer upon each
departure from the United States, and declares that it is his or her
intention to return the articles on each return to the United States.
It is also not applicable to the personnel referred to in 123.18.
(b) District directors of customs may permit a foreign person to
export without a license such firearms in Category I(a) of 121.1 and
ammunition therefor as the foreign person brought into the United States
under the provisions of 27 CFR 178.115(d). (The latter provision
specifically excludes from the definition of importation the bringing
into the United States of firearms and ammunition by certain foreign
persons for specified purposes.)
(c) District directors of customs may permit U.S. persons to export
without a license ammunition for nonautomatic firearms referred to in
paragraph (a) of this section if the quantity does not exceed 1,000
cartridges (or rounds) in any shipment. The ammunition must also be for
personal use and not for resale or other transfer of ownership. The
foregoing exemption is also not applicable to the personnel referred to
in 123.18.
22 CFR 123.18 Firearms for personal use of members of the U.S. Armed
Forces and civilian employees of the U.S. Government.
The following exemptions apply to members of the U.S. Armed Forces
and civilian employees of the U.S. Government who are U.S. persons (both
referred to herein as ''personnel''). The exemptions apply only to such
personnel if they are assigned abroad for extended duty. These
exemptions do not apply to dependents.
(a) Firearms. District directors of customs may permit nonautomatic
firearms in Category I(a) 121.1 and parts therefor to leave (but not be
mailed from) the United States without a license if:
(1) They are consigned to servicemen's clubs abroad for uniformed
members of the U.S. Armed Forces; or,
(2) In the case of a uniformed member of the U.S. Armed Forces or a
civilian employee of the Department of Defense, they are consigned to
the personnel for personal use and not for resale or other transfer of
ownership, and if the firearms are accompanied by a written
authorization from the commanding officer concerned; or,
(3) In the case of other U.S. Government employees, they are
consigned to such personnel for personal use and not for resale or other
transfer of ownership, and the Chief of the U.S. Diplomatic Mission or
his designee in the country of destination has approved in writing to
Department of State the bringing of the specific types and quantities of
firearms into that country.
(b) Ammunition. District directors of customs may permit not more
than 1,000 cartridges (or rounds) of ammunition for the firearms
referred to in paragraph (a) of this section to be exported (but not
mailed) from the United States without a license when the firearms are
on the person of the owner or with his baggage or effects, whether
accompanied or unaccompanied (but not mailed).
22 CFR 123.19 Minor components.
Except as provided in 126.1, district directors of customs are
authorized to permit the export without a license of components and
parts for Category I(a) firearms, except barrels, cylinders, receivers
(frames), or complete breech mechanisms, when the total value does not
exceed $500 wholesale in any single transaction.
22 CFR 123.20 Canadian and Mexican border shipments.
A shipment originating in Canada or Mexico which incidentally
transits the United States enroute to a delivery point in the same
country that originated the shipment is exempt from the requirement for
an intransit license.
22 CFR 123.21 Nuclear materials.
(a) The provisions of this subchapter do not apply to equipment in
Category VI(e) and Category XVI of 121.1 to the extent such equipment
is under the export control of the Department of Energy or the Nuclear
Regulatory Commission pursuant to the Atomic Energy Act of 1954, as
amended, and the Nuclear Non-Proliferation Act of 1978.
(b) A license for the export of any machinery, device, component,
equipment, or technical data relating to equipment referred to in
Category VI(e) will not be granted unless the proposed export comes
within the scope of an existing Agreement for Cooperation for Mutual
Defense Purposes concluded pursuant to the Atomic Energy Act of 1954, as
amended, with the government of the country to which the article is to
be exported. Licenses may be granted in the absence of such an
agreement only (1) if the proposed export involves an article which is
identical to that in use in an unclassified civilian nuclear powerplant,
(2) if the proposed export has no relationship to naval nuclear
propulsion, and (3) if it is not for use in a naval propulsion plant.
22 CFR 123.21 Procedures
22 CFR 123.22 Applications for licenses.
Applications for licenses for the export of defense articles and
related technical data under this part must be made to the Office of
Munitions Control as follows:
(a) Applications for licenses for permanent export must be made on
Form DSP-5 (unclassified).
(b) Intransit license applications must be made on Form DSP-61
(unclassified).
(c) Temporary export license applications must be made on Form DSP-73
(unclassified).
(d) All applications involving the export or intransit shipment of
classified defense articles or classified technical data must be made on
Form DSP-85.
(e) The following specific procedures apply to the preparation and
submission of applications:
(1) Applications for Department of State export licenses must be
confined to proposed exports of defense articles and related technical
data. Applications for licenses to export commodities under the
regulatory jurisdiction of the Department of Commerce must be made
directly to that Department.
(2) Form DSP-5, DSP-61, DSP-73, and DSP-85 applications must have an
entry in each block where space is provided for an entry. Any
supporting documentation concerning commodity, end-use, and specific
purpose should be submitted in seven copies. Samples of properly
executed applications are available from the Office of Munitions
Control.
(3) Form DSP-83, duly executed, must accompany all license
applications for the permanent export of significant military equipment
except in the circumstances described in 123.10(b).
(4) Applications for permanent export licenses should not be
submitted until the applicant has a firm order, letter of intent or
other appropriate documentation from the purchaser or consignee except
in the circumstances described in 123.1(c).
(5) A request under the provisions of section 38(e) of the Arms
Export Control Act (22 U.S.C. 2778(e)) for confidential treatment of
information provided to the Department of State must be made by letter
to the Office of Munitions Control.
22 CFR 123.23 Renewal and disposition of licenses.
(a) A license is valid for a period of three years. The license
expires if the defense articles described in the license are not shipped
within the three-year period.
(b) Unused, expired, expended, suspended, or revoked licenses must be
returned immediately to the Department of State.
(49 FR 47691, Dec. 6, 1984, as amended at 54 FR 42498, Oct. 17, 1989)
22 CFR 123.24 Port of exit or entry.
An application for a license must state the proposed port of exit
from the United States. If applicable, the port of entry must also be
stated. After a license is issued, the person to whom the license was
issued must notify the Office of Munitions Control in writing of any
proposed change of the port prior to export. A copy of such written
notification must be sent to the district director of customs at the new
port.
22 CFR 123.25 Filing of export and intransit licenses and shipper's
export declarations with district directors of customs.
(a) The recipient of an export license must deposit the license with
the district director of customs at the port of exit designated on the
license before shipping the defense article in question. (For exports
by mail, see 123.26.) After a license has been so deposited, the export
may be made through the designated port. If necessary, the export may
be made through another port if the exporter complies with the
procedures established by the U.S. Customs Service and 123.24. Before
shipping any defense article, the exporter must also file a shipper's
export declaration (Department of Commerce Form 7525-V) with the
district director of customs at the port of exit.
(b) Before any export occurs, the district director of customs at the
port of exit must authenticate the shipper's export declaration, and
endorse the license to show the shipments actually made. The district
director of customs will return a copy of each authenticated shipper's
export declaration to the Office of Munitions Control. Every license
will also be returned upon the completion of the authorized export or
upon the expiration date stated on the license, whichever occurs first.
(c) An exporter must also file a shipper's export declaration with
district directors of customs or postmasters in those cases in which no
export license is required because of an exemption in this subchapter.
The exporter must certify that the export is exempt from the licensing
requirements of this subchapter. This is done by writing ''22 CFR
(identify section) applicable'' on the shipper's export declaration, and
by identifying the section under which an exemption is claimed. A copy
of each such declaration must be mailed immediately by the exporter to
the Office of Munitions Control. This paragraph does not create an
obligation to file a shipper's export declaration if (1) the export is
exempt from the licensing requirements of this subchapter pursuant to
126.4 and (2) it is not otherwise required by law or by regulations
other than those contained in this subchapter.
(d) District directors of customs are authorized to permit the
shipment of defense articles identified on any license when the total
value of the export does not exceed the aggregate monetary value (not
quantity) stated on the license by more than ten percent.
22 CFR 123.26 Shipments by mail.
An export license for defense articles being sent abroad by mail must
be filed with the postmaster at the post office where the equipment is
mailed. A shipper's export declaration (U.S. Department of Commerce
Form 7525-V) must be filed with and be authenticated by the postmaster
before the article is actually sent. The postmaster will endorse each
license to show the shipments made. Every license must be returned by
the postmaster to the Office of Munitions Control upon completion of the
mailings or the date that the license expires, whichever occurs first.
22 CFR 123.27 Temporary exports.
(a) If defense articles are to be sent abroad for brief periods and
returned to the United States in the same condition, a license for the
temporary export of defense articles must be obtained from the
Department of State (Form DSP-73).
(b) Defense articles authorized for temporary export under this
section may be shipped only from a port in the United States where a
district director of customs is available. The license for temporary
export must be presented to the district director of customs who, upon
verification, will endorse the exit column on the reverse side of the
license. The endorsed license for temporary export is to be retained by
the licensee. In the case of a military aircraft or vessel, the
endorsed license must be carried on board such vessel or aircraft as
evidence that it has been duly authorized by the Department of State to
leave the United States temporarily.
(c) Upon the return to the United States of defense articles covered
by a license for temporary export, the license will be endorsed in the
entry column by the district director of customs. This procedure shall
be followed for all exits and entries made during the period for which
the license is valid. The licensee must send the used license to the
Office of Munitions Control Immediately upon expiration or after the
final return in the case of multiple exports under the same license,
whichever occurs first.
22 CFR 123.27 PART 124 -- MANUFACTURING LICENSE AGREEMENTS, TECHNICAL
ASSISTANCE AGREEMENTS, AND OTHER DEFENSE SERVICES
Sec.
124.1 Manufacturing license agreements and technical assistance
agreements.
124.2 Exemptions for training and military service.
124.3 Exports of technical data in furtherance of an agreement.
124.4 Deposit of signed agreements with the Office of Munitions
Control.
124.5 Proposed agreements which are not concluded.
124.6 Termination of manufacturing license agreements and technical
assistance agreements.
124.7 Required information and clauses in proposed agreements.
124.8 Information required in all agreements.
124.9 Clauses required both in manufacturing license agreements and
technical assistance agreements.
124.10 Additional clauses required only in manufacturing license
agreements.
124.11 Non-transfer and use assurances.
124.12 Required information in letters of transmittal.
124.13 Procurement by United States persons in foreign countries
(offshore procurement).
124.14. Exports to warehouses or distribution points outside the
United States.
Authority: Sec. 38, Arms Export Control Act, 90 Stat. 744 (22
U.S.C. 2778); E.O. 11958, 42 FR 4311; 22 U.S.C. 2658.
Source: 49 FR 47695, Dec. 6, 1984, unless otherwise noted.
22 CFR 124.1 Manufacturing license agreements and technical assistance
agreements.
(a) General. The approval of the Office of Munitions Control must be
obtained before the defense services described in 120.8(a) of this
subchapter may be furnished. In order to obtain such approval, the U.S.
person must submit a proposed agreement with the foreign person
concerned to the Office of Munitions Control. Such agreements are
generally characterized as either ''Manufacturing license agreements''
or ''technical assistance agreements'' as defined in 120.14 and
120.20, and may not enter into force without the prior written approval
of the Office of Munitions Control. Once approved, the defense services
described in the agreements may generally be provided without further
licensing in accordance with 124.3 and 125.4(b)(2). The requirements
of this section apply whether or not technical data is to be disclosed
or used in the performance of the defense services described in
120.8(a) (e.g., all the information relied upon by the U.S. person in
performing the defense service is in the public domain or is otherwise
exempt from the licensing requirements of this subchapter pursuant to
125.4). This requirement also applies to the training of foreign
military forces, both regular and irregular, in the use of defense
articles. Technical assistance agreements must be submitted in such
cases. (In exceptional cases, the Office of Munitions Control, upon
written request, will consider approving the provision of defense
services described in 120.8(a) by granting a license under part 125.
Also, see 126.8 for the requirements for prior approval of proposals
relating to significant military equipment.)
(b) Amendments. Proposed amendments, including extensions, to
agreements subject to the requirements of this part must also be
submitted for approval. The amendments may also not enter into force
until approved by the Office of Munitions Control. Amendments which
only alter delivery or performance schedules, or other minor
administrative amendments which do not affect in any manner the duration
of the agreement or the clauses or information which must be included in
such agreements because of the requirements of this part, do not have to
be submitted for approval. One copy of all such minor amendments must
be submitted to the Office of Munitions Control within thirty days after
they are concluded.
22 CFR 124.2 Exemptions for training and military service.
(a) Technical assistance agreements are not required for the
provision of training only in the basic operation and maintenance of
defense articles lawfully exported or authorized for export to the same
recipient.
(b) Services performed as a member of the regular military forces of
a foreign nation by U.S. persons who have been drafted into such forces
are not deemed to be defense services for purposes of 120.8.
22 CFR 124.3 Exports of technical data in furtherance of an agreement.
(a) Unclassified technical data. District directors of customs or
postal authorities may permit the export without a license of
unclassified technical data if the export is in furtherance of a
manufacturing license or technical assistance agreement which has been
approved in writing by the Office of Munitions Control. The export is
not authorized without a license if it exceeds the scope or limitations
of the relevant agreement. The U.S. party to the agreement must certify
that the export does not exceed the scope of the agreement and any
limitations imposed pursuant to this part. The approval of the Office
of Munitions Control must be obtained for the export of any unclassified
technical data which may exceed the terms of the agreement.
(b) Classified technical data. The export of classified information
in furthernance of an approved manufacturing license or technical
assistance agreement which provides for the transmittal of classified
information does not require further approval from the Office of
Munitions Control when:
(1) The United States party certifies to the Department of Defense
transmittal authority that the classified information does not exceed
the technical or product limitations in the agreement; and
(2) The United States party complies with the requirements of the
Department of Defense Industrial Security Manual concerning the
transmission of classified information, and any other requirements of
cognizant U.S. departments or agencies.
(49 FR 47695, Dec. 6, 1984; 49 FR 48536, Dec. 13, 1984)
22 CFR 124.4 Deposit of signed agreements with the Office of Munitions
Control.
The United States party to a manufacturing license or a technical
assistance agreement must file one copy of the concluded agreement with
the Office of Munitions Control not later than 30 days after it enters
into force.
22 CFR 124.5 Proposed agreements which are not concluded.
The United States party to any proposed manufacturing license
agreement or technical assistant agreement must inform the Office of
Munitions Control if a decision is made not to conclude the agreement.
The information must be provided within 60 days of the date of the
decision. These requirements apply only if the approval of the Office
of Munitions Control was obtained for the agreement to be concluded
(with or without any provisos).
22 CFR 124.6 Termination of manufacturing license agreements and
technical assistance agreements.
The United States party to a manufacturing license or a technical
assistance agreement must inform the Office of Munitions Control in
writing of the impending termination of the agreement not less than 30
days prior to the expiration date of such agreement.
22 CFR 124.6 Procedures
22 CFR 124.7 Required information and clauses in proposed agreements.
In order to be approved, all proposed manufacturing license
agreements and technical assistance agreements must contain certain
information and clauses. The information required is specified in
124.8. The information required should be provided in terms which are as
precise as possible. The clauses which must be included in both
manufacturing license agreements and technical assistance agreements are
stated in 124.9. The additional clauses which must be stated in
manufacturing license agreements only are specified in 124.10. If the
United States party believes that a clause or some required information
is not relevant or necessary in a particular agreement, the Office of
Munitions Control may authorize the omission of the information or
clause. The transmittal letter accompanying the agreement (see 124.12)
must state the reasons for any proposed variation in the required
information or statements.
22 CFR 124.8 Information required in all agreements.
The following information must be included in all manufacturing
license agreements and technical assistance agreements:
(a) The agreement must describe the equipment and technology
involved. They should be described by military nomenclature, contract
number, Federal stock number, nameplate data, or other specific
information;
(b) The agreement must describe the assistance and information to be
furnished and the manufacturing rights to be granted, if any;
(c) The duration of the proposed agreement must be specified; and
(d) The agreement must specifically identify the countries or areas
in which manufacturing, production, processing, sale or other form of
transfer is to be licensed.
22 CFR 124.9 Clauses required both in manufacturing license agreements
and technical assistance agreements.
The following statements must be included both in manufacturing
license agreements and in technical assistance agreements:
(a) ''This agreement shall not enter into force, and shall not be
amended or extended, without the prior written approval of the
Department of State of the U.S. Government.''
(b) ''This agreement is subject to all United States laws and
regulations relating to exports and to all administrative acts of the
U.S. Government pursuant to such laws and regulations.''
(c) ''The parties to this agreement agree that the obligations
contained in this agreement shall not affect the performance of any
obligations created by prior contracts or subcontracts which the parties
may have individually or collectively with the U.S. Government.''
(d) ''No liability will be incurred by or attributed to the U.S.
Government in connection with any possible infringement of privately
owned patent or proprietary rights, either domestic or foreign, by
reason of the U.S. Government's approval of this agreement.''
(e) ''The technical data or defense service exported from the United
States in furtherance of this agreement and any defense article which
may be produced or manufactured from such technical data or defense
service may not be transferred to a person in a third country or to a
national of a third country except as specifically authorized in this
agreement unless the prior written approval of the Department of State
has been obtained.''
(f) ''All provisions in this agreement which refer to the United
States Government and the Department of State will remain binding on the
parties after the termination of the agreement.''
22 CFR 124.10 Additional clauses required only in manufacturing license
agreements.
(a) Clauses for all manufacturing license agreements. The following
clauses must be included only in manufacturing license agreements:
(1) ''No export, sale, transfer, or other disposition of the licensed
article is authorized to any country outside the territory wherein
manufacture or sale is herein licensed without the prior written
approval of the U.S. Government. Sales or other transfers of the
licensed article shall be limited to governments of countries wherein
manufacture or sale is hereby licensed and to private entities seeking
to procure the licensed article pursuant to a contract with any such
government unless the prior written approval of the U.S. Government is
obtained.''
(2) ''It is agreed that sales by licensee or its sublicensees under
contracts made through the U.S. Government will not include either
charges for patent rights in which the U.S. Government holds a
royalty-free license, or charges for data which the U.S. Government has
a right to use and disclose to others, which are in the public domain,
or which the U.S. Government has acquired or is entitled to acquire
without restrictions upon their use and disclosure to others.''
(3) ''If the U.S. Government is obligated or becomes obligated to pay
to the licensor royalties, fees, or other charges for the use of
technical data or patents which are involved in the manufacture, use, or
sale of any licensed article, any royalties, fees or other charges in
connection with purchases of such licensed article from licensee or its
sublicensees with funds derived through the U.S. Government may not
exceed the total amount the U.S. Government would have been obligated to
pay the licensor directly.''
(4) ''If the U.S. Government has made financial or other
contributions to the design and development of any licensed article, any
charges for technical assistance or know-how relating to the item in
connection with purchases of such articles from licensee or sublicensees
with funds derived through the U.S. Government must be proportionately
reduced to reflect the U.S. Government contributions, and subject to the
provisions of paragraphs (a) (2) and (3) of this section, no other
royalties, fees or other charges may be assessed against U.S. Government
funded purchases of such articles. However, charges may be made for
reasonable reproduction, handling, mailing, or similar administrative
costs incident to the furnishing of such data.''
(5) ''The parties to this agreement agree that an annual report of
sales or other transfers pursuant to this agreement of the licensed
articles, by quantity, type, U.S. dollar value, and purchaser or
recipient, shall be provided by (applicant or licensee) to the
Department of State.'' This clause must specify which party is obligated
to provide the annual report. Such reports may be submitted either
directly by the licensee or indirectly through the licensor, and may
cover calendar or fiscal years. Reports shall be deemed proprietary
information by the Department of State and will not be disclosed to
unauthorized persons. (See 126.10(b).)
(6) ''(Licensee) agrees to incorporate the following statement as an
integral provision of a contract, invoice or other appropriate document
whenever the licensed articles are sold or otherwise transferred:
These commodities are authorized for export by the U.S. Government
only to (country of ultimate destination or approved sales territory).
They may not be resold, diverted, transferred, transshipped, or
otherwise be disposed of in any other country, either in their original
form or after being incorporated through an intermediate process into
other end-items, without the prior written approval of the U.S.
Department of State.''
(b) Special clause for agreements relating to significant military
equipment. With respect to an agreement for the production of
significant military equipment, the following additional provisions must
be included in the agreement:
(1) ''A completed nontransfer and use certificate (DSP-83) must be
executed by the foreign end-user and submitted to the Department of
State of the United States before any transfer may take place.''
(2) ''The prior written approval of the U.S. Government must be
obtained before entering into a commitment for the transfer of the
licensed article by sale or otherwise to any person or government
outside of the approved sales territory.''
(49 FR 47695, Dec. 6, 1984; 49 FR 48536, Dec. 13, 1984; 50 FR
12787, Apr. 1, 1985, as amended at 51 FR 47014, Dec. 30, 1986)
22 CFR 124.11 Nontransfer and use assurances.
A nontransfer and use certificate (Form DSP-83) (see 123.10) signed
by the foreign party to a manufacturing license agreement or technical
assistance agreement is required as a condition to the approval of any
such agreement which relates to significant military equipment,
classified articles or classified technical data. The Office of
Munitions Control may at its option require that this certificate or a
comparable undertaking be provided before approving any agreement that
does not relate to significant military equipment. The Office of
Munitions Control may also require as a condition to the approval of the
agreement that an appropriate authority to the foreign party's
government also execute the certificate, or that the foreign government
concerned provide undertakings comparable to those contained in the Form
DSP-83 (e.g., in a diplomatic note). Agreements involving classified
articles or classified technical data must be accompanied by a
nontransfer and use certificate signed by an authorized representative
of the foreign government concerned. This requirement may be waived by
the Office of Munitions Control if the foreign party is a foreign
government with which the United States has a General Security of
Information Agreement or other foreign government security assurance.
22 CFR 124.12 Required information in letters of transmittal.
(a) An application for the approval of a manufacturing license or
technical assistance agreement with a foreign person must be accompanied
by an explanatory letter. The original letter and seven copies of the
letter and eight copies of the proposed agreement shall be submitted to
the Office of Munitions Control. The explanatory letter shall contain:
(1) A statement giving the applicant's Munitions Control registration
number.
(2) A statement identifying the licensee and the scope of the
agreement.
(3) A statement identifying the U.S. Government contract under which
the equipment or technical data was generated, improved, or developed
and supplied to the U.S. Government, and whether the equipment or
technical data was derived from any bid or other proposal to the U.S.
Government.
(4) A statement giving the military security classification of the
equipment or technical data.
(5) A statement identifying any patent application which discloses
any of the subject matter of the equipment or technical data covered by
an invention secrecy order issued by the U.S. Patent and Trademark
Office.
(6) A statement of the actual or estimated value of the agreement.
If the value exceeds $250,000, an additional statement must be made
regarding the payment of political contributions, fees or commissions,
pursuant to part 130 of this subchapter.
(7) A statement indicating whether any foreign military sales credits
or loan guarantees are or will be involved in financing the agreement.
(b) The following statements must be made in the letter of
transmittal:
(1) ''If the agreement is approved by the Department of State, such
approval will not be construed by (the applicant) as passing on the
legality of the agreement from the standpoint of antitrust laws or other
applicable statutes, nor will (the applicant) construe the Department's
approval as constituting either approval or disapproval of any of the
business terms or conditions between the parties to the agreement.''
(2) ''The (applicant) will not permit the proposed agreement to enter
into force until it has been approved by the Department of State.''
(3) ''The (applicant) will furnish the Department of State with one
copy of the signed agreement (or amendment) within 30 days from the date
that the agreement is concluded and will inform the Department of its
termination not less than 30 days prior to expiration and provide
information on the continuation of any foreign rights or the flow of
technical data to the foreign party. If a decision is made not to
conclude the proposed agreement, the applicant will so inform the
Department within 60 days.''
(49 FR 47695, Dec. 6, 1984, as amended at 51 FR 47015, Dec. 30, 1986)