24 CFR 1710.559 Part II -- Definitions
The following definitions are included here because of the importance
each has to the explanation and understanding of HUD's interpretations
of the exemption requirements. Furthermore, with the exception of lot,
sale, common promotional plan, and subdivision these definitions are not
set forth elsewhere. The definitions of lot and sale are repeated here
due to their extraordinary importance to the exemptions.
(a) Anti-Fraud Provisions means the provisions of the Act that
prohibit the use of any sales practices, advertising or promotional
materials that: would be misleading to purchasers; contain any
misrepresentation of material facts or untrue statements; or would
operate as a fraud or deceit upon a purchaser. Also prohibited are
representations that roads, sewer, water, gas or electric services or
recreational amenities will be provided or completed by the developer
without so stipulating in the contract. The relevant provisions are set
forth in 15 U.S.C. 1703(a)(2). The regulations that implement the
anti-fraud provisions are set forth in 24 CFR part 1715, subpart B.
(b) Common Promotional Plan means any plan undertaken by a single
developer or a group of developers acting together to offer lots for
sale or lease. A common promotional plan is presumed to exist if land
is offered by a developer or a group of developers acting in concert and
the land is contiguous or is known, designated, or advertised as a
common development or by a common name. The number of lots covered by
each individual offering has no bearing on whether or not there is a
common promotional plan.
Other characteristics that are evaluated in determining whether or
not a common promotional plan exists include, but are not limited to: a
10% or greater common ownership; same or similar name or identity;
common sales agents; common sales facilities; common advertising; and
common inventory. The presence of one or more of the characteristics
does not necessarily denote a common promotional plan. Conversely, the
absence of a characteristic does not demonstrate that there is no common
promotional plan.
Two essential elements of a common promotional plan are a thread of
common ownership or developers acting in concert. However, common
ownership alone would not constitute a common promotional plan. HUD
considers the involvement of all principals holding a 10 percent or
greater interest in the subdivison to determine whether there is a
thread of common ownership. If there is common ownership or if the
developers are acting in concert, and there is common advertising, sales
agents or sales office, a common promotional plan is presumed to exist.
Experience has led to the conclusion that sales agents generally will
direct a prospective purchaser to any or all properties in inventory to
make a sale.
The phrase common promotional plan is most often misunderstood by
those who believe that promotion implies an enthusiastic sales campaign.
Any method used to attract potential purchasers is, in fact, the
promotional plan. For example, direct mail campaigns and free dinners
may be the promotional plan of one developer while another developer's
promotion may be limited to classified advertisements in a local
newspaper.
Brokers selling lots as an agent for any person who is required to
register are required to comply with the requirements of the Act for
those sales. Brokers selling lots for different individuals who do not
own enough lots to come within the jurisdiction established by the Act
generally would not be considered to be offering lots pursuant to a
common promotional plan as long as they are merely receiving the usual
real estate commission for such sales. If the broker has an ownership
interest in the lots or is receiving a greater than normal real estate
commission, the broker may be offering lots pursuant to common
promotional plan and may be required to comply with the requirements of
the Act.
(c) Delivery of Deed means the physical transfer of a recordable
deed, executed by the seller to the purchaser, to the purchaser's agent
or to the appropriate governmental recording office. If the transfer
(i.e., delivery) is to an agent or to a recording office, there must not
be any conditions imposed upon the purchaser or any further action to be
taken by either the purchaser or the seller. If delivery is to the
place of recordation, it must be accompanied by the proper recordation
fees.
(d) Lot means any portion, piece, division, unit or undivided
interest in land if such interest includes the right to the exclusive
use of a specific portion of the land or unit.
This applies to the sale of a condominium or cooperative unit or a
campsite as well as a traditional lot.
If the purchaser of an undivided interest or a membership has
exclusive repeated use or possession of a specific designated lot even
for a portion of the year, a lot, as defined by the regulations, exists.
For purposes of definition, if the purchaser has been assigned a
specific lot on a recurring basis for a defined period of time and could
eject another person during the time he has the right to use that lot,
then the purchaser has an exclusive use.
(e) Sale means any obligation or agreement for consideration to
purchase or lease a lot directly or indirectly. The time of sale is
measured from when a purchaser signs a contract, even if the contract
contains contingencies beyond the control of the seller. For example,
if a developer uses a contract which states that the sale is contingent
upon obtaining an exemption from HUD, a sale, for the purposes of this
definition, occurred when the purchaser signed the contract. The terms
sale and seller include the terms lease and lessor for the purposes of
the regulations and these Guidelines.
(f) Site means a group of contiguous lots whether such lots are
actually divided or proposed to be divided. Lots are considered to be
contiguous even though contiguity may be interrupted by a road, park,
small body of water, recreational facility or any similar object.
(g) Subdivision means any land that is located in any state or in a
foreign country and is divided or is proposed to be divided into lots,
whether contiguous or not, for the purpose of sale or lease as part of a
common promotional plan. Any number of lots, whether divided by the
previous owner, divided by the current owner, or merely proposed to be
divided may constitute a subdivision. Proposed to be divided includes
the developer's intention to subdivide land, as well as the developer's
intention to add additional land or units.
24 CFR 1710.559 Part III -- Exclusions From the Act
The following items are excluded from the coverage of the Act:
(a) Reservation. A reservation is a non-binding agreement used to
gauge market feasibility for a developer through which a potential
purchaser expresses an interest to buy or lease a lot or unit at some
time in the future. A deposit may be accepted from the interested
person provided that the money is placed in escrow with an independent
institution having trust powers and is refundable in full at any time at
the option of the potential purchaser. To be excluded from the Act, in
no case may a reservation become a binding obligation to purchase a lot;
the potential purchaser must take some subsequent affirmative action,
typically the signing of a sales contract, to create a binding
obligation. An option agreement is an arrangement for consideration in
which a potential purchaser could forfeit money; therefore, an option
agreement is not a reservation. In no event may a document purporting
to be a Property Report or other evidence of compliance with the Act be
delivered to an interested party when entering a reservation agreement
for a lot or proposed condominium unit which is neither effectively
registered nor exempt.
(b) Undivided interests. The sale of undivided interests that do not
carry with them the right of exclusive use of a specific lot does not
establish jurisdiction. For example, a camping subdivision sold as 400
undivided interests to tenants in common, where purchasers have a
co-extensive, non-exclusive right to the use and enjoyment of all
campsites on a space available basis and no purchaser has an expressed
or implied exclusive right to repeatedly use or occupy any specific
campsite, would not be covered by the Act.
24 CFR 1710.559 Part IV -- Statutory Exemptions Requiring No
Determination By HUD
The discussions that immediately follow pertain to 15 U.S.C. 1702(a)
(1) through (8). The exemptions are set forth in the regulations at 24
CFR 1710.5 (a) through (h). These provisions exempt sales from both the
anti-fraud and the registration provisions of the Act.
(a) Twenty-five Lots. (15 U.S.C. 1702(a)(10) and 24 CFR 1710.5(a)).
This section exempts the sale or lease of lots in a subdivision
(i.e., lots offered pursuant to the same common promotional plan) that
contains fewer than 25 lots. If a subdivision contains 25 or more lots,
but fewer than 25 of those lots are offered for sale under a common
promotional plan, those sales would be exempt. Thus, in a subdivision
of 28 lots in which 4 lots are not offered for sale because, for
example, they are permanently dedicated to the public for a park, the
sale of the remaining 24 lots is exempt.
If fewer than 25 lots are acquired in a larger subdivision, the offer
of these lots may be subject to the Act if the acquiring party is in any
way acting in concert with the previous or current developer of the
balance of the subdivision. Correspondingly, if fewer than 25 lots are
acquired in a larger subdivision, the offer of the lots may be exempt if
there is neither an identity of interest between the acquiring party and
the previous or current developer nor any form of concerted action that
constitutes a common promotional plan.
Since the fewer than 25 lots exemption is based upon the number of
lots as opposed to the number of sales, resales of a lot will not be
counted toward the fewer than 25 lots limit.
(b) Improved Lots. (15 U.S.C. 1702(a)(2) and 24 CFR 1710.5(b)).
This section exempts: (1) The sale or lease of any improved land on
which there is a residential, commercial, condominium, or industrial
building; or (2) the sale or lease of land under a contract obligating
the seller or lessor to erect such building on the lot within a period
of two years.
For a building or unit to be considered complete, it must be
physically habitable and usable for the purpose for which it was
purchased. A residential structure, for example, must be ready for
occupancy and have all necessary and customary utilities extended to it
before it can be considered complete. Manufactured home lots with pads
but no structure, even if improved with utilities and roads, will not
qualify for this exemption. In addition, recreational vehicles are not
considered to be residential buildings.
If a seller (or developer) is relying on this exemption and the
residential, commercial, condominium or industrial building is not
complete, the contract must specifically obligate the seller to complete
the building within two years. If the contractual obligation is not
present, the sale is not exempt. The two-year period begins on the date
the purchaser signs the sales contract. The use of a contract that
obligates the buyer to build within two years would not exempt the sale.
HUD's interpretation of what constitutes a two-year obligation to
construct a building relies on general principles of contract law in
deciding whether or not the seller has, in fact, an obligation to erect
a building within two years. Provisions for purchaser financing and
remedies clauses are matters to be decided by the parties to the
contract under the laws of the jurisdiction in which the construction
project is located.
However, the contract must not allow nonperformance by the seller at
the seller's discretion. Contracts that permit the seller to breach
virtually at will are viewed as unenforceable because the construction
obligation is not an obligation in reality. Thus, for example, a clause
that provides for a refund of the buyer's deposit if the seller is
unable to close for any reason within the seller's control is not
acceptable for use under this exemption. Similarly, contracts that
directly or indirectly waive the buyer's right to specific performance
are treated as lacking a realistic obligation to construct. HUD's
position is not that a right to specific performance of construction
must be expressed in the contract, but that any such right that
purchasers have must not be negated. For example, a contract that
provides for a refund or a damage action as the buyer's sole remedy
would not be acceptable.
Contract provisions which allow for nonperformance or for delays of
construction completion beyond the two-year period are acceptable if
such provisions are legally recognized as defenses to contract actions
in the jurisdiction where the building is being erected. Thus, for
example, provisions to allow time extensions for events or occurrences
such as acts of God, casualty losses or material shortages are generally
permissible. Also permissible, in the case of multi-unit construction,
is a clause conditioning the completion of construction or closing of
title on a certain percentage of sales of other units. The presale
period cannot exceed 180 days from the date the first purchaser signs a
contract in the project or, in a phased project, from the date the first
purchaser signs a sales contract in a phase. Such a clause may not
extend the overall two-year obligation to construct.
Although the factual circumstances upon which nonperformance or a
delay in performance is based may vary from transaction to transaction,
as a general rule delay or nonperformance must be based on grounds
cognizable in contract law such as impossibility or frustration and on
events which are beyond the seller's reasonable control.
Because of the variations in applicable contract law among the states
and the many different provisions that are used by sellers in
construction contracts, HUD may condition its advisory opinions under
this exemption on representations by local counsel as to the current
status of state law on the relevant issues. For example, in the Florida
case of Dorchester Development, Inc. v. Tema Burk, Schwartz & Nash, 439
So. 2d 1032 (1983), the court held that there must be an unconditional
commitment to complete the condominium units within two years and that
the remedies available to the purchaser must not be limited. Although
the opinion's language was broad, it is HUD's position that the court's
concern regarding limitations on remedies was confined to the right to
specific performance. However, developers, especially those in Florida,
should be aware of this decision and how it may be treated by higher
Florida courts, as well as courts in other jurisdictions.
Developers and others should also be aware of the recent decision in
the case of Winter v. Hollingsworth Properties Inc., No.
83-8258-CIV-JAG, U.S.D.C. S.D. Fla (May 18, 1984) in which the court
held that the Interstate Land Sales Full Disclosure Act did not apply to
the sale or lease of condominium units. This ruling is in conflict with
the Department's position on the condominium issue. The weight of
authority of other cases, both Federal and State, supports the
Department's position. Therefore, it continues to be the Department's
policy that the mere use of the condominium form of ownership does not
determine jurisdiction of the Act and that developers should look to the
specific requirements of the statutory and regulatory exemptions as
amplified in these Guidelines to determine the applicability of the Act.
(c) Evidence of Indebtedness. (15 U.S.C. 1702(a)(3) and 24 CFR
1710.5(c)).
This section exempts the sale or lease of evidences of indebtedness
(typically a note) secured by a mortgage or deed of trust on real
estate. The sale of such notes, which is common in the industry, is
exempt; however, the underlying sale of the land is not exempt under
this provision.
(d) Securities. -- (15 U.S.C. 1702(a)(4) and 24 CFR 1710.5(d)).
This section exempts the sale of securities issued by a real estate
investment trust.
(e) Government Sales. (15 U.S.C. 1702(a)(5) and 24 CFR 1710.5(e)).
This section exempts the sale or lease of real estate by any
government or government agency. This exemption extends to the sale or
lease of land by a city, state, or foreign government as well as the
sale of land by the U.S. Government. However, it does not exempt sales
or leases of lots by Federal or state chartered and regulated
institutions such as banks or savings and loan associations, nor does
the fact that the development is assisted, insured or guaranteed under a
Federal or state program exempt the lot sales. Municipal Utility
Districts and Special Improvement Districts may or may not be considered
a qualified government agency under this exemption depending on the
legal basis and operation of the District.
(f) Cemetery Lots. (15 U.S.C. 1702(a)(6) and 24 CFR 1710.5(f)).
This section exempts the sale or lease of cemetery lots.
(g) Sales to Builders. (15 U.S.C. 1702(a)(7) and 24 CFR 1710.5(g)).
This section exempts the sale or lease of lots to any person who
acquires the lots for the purpose of engaging in the business of
constructing residential, commercial, or industrial buildings or for the
purpose of resale or lease of the lots to persons engaged in such a
business. The term business is viewed as an activity of some
continuity, regularity, and permanency, or means of livelihood.
The sale or lease of lots to an individual who purchases the lots to
have his or her own home built is not exempt under this provision. The
sale to a non-broker who is buying a lot for investment with indefinite
plans for resale also is not exempt.
(h) Industrial or Commercial Developments. (15 U.S.C. 1702(a)(8) and
24 CFR 1710.10(h)).
This section exempts the sale or lease of real estate which is zoned
for industrial or commercial development. If there is no zoning
ordinance, the exemption is available only if the real estate is
restricted to industrial or commercial development by a declaration of
covenants, conditions, and restrictions which have been recorded in the
official records of the city or county in which the real estate is
located. In addition, the following five conditions must exist in order
to establish eligibility for this exemption:
(1) Local authorities have approved access from the real estate to a
public street or highway. The approved access to a public street or
highway must run to the legal boundary of the subdivision, but need not
run to each and every lot;
(2) The purchaser or lessee of the real estate is a duly organized
corporation, partnership, trust or business entity engaged in commercial
or industrial business. To be considered duly organized, a purchaser or
lessee must have set up an administrative structure to conduct business,
such as: checking accounts; licenses and permits, if required;
evidence of intent; and a set of accounting records. The phrase
engaged in business implies an activity of some continuity, regularity
and permanency, or means of livelihood. A new entity or individual
starting a business must be authorized to conduct such business in the
jurisdiction in which the subdivision is located;
(3) The purchaser or lessee of the real estate is represented in the
transaction of sale or lease by a representative of its own selection.
The term representative is not limited to attorneys and does not exclude
sole proprietors from representing themselves. Any person can serve as
the representative of the purchaser or lessee so long as sufficient
evidence can be produced to prove authority to act in that capacity;
(4) The purchaser or lessee of the real estate affirms in writing to
the seller that: it is either purchasing or leasing the real estate
substantially for its own use or it has a binding commitment to sell,
lease or sublease the real estate to an entity which meets the
requirements of (2) above; it is engaged in commercial or industrial
businesses; and it is not affiliated with the seller or agent. These
affirmations should be retained by the developer in accordance with the
statute of limitations of the local jurisdiction or for a period of
three years, whichever is longer. If the affirmation is included in the
contract, a space must be provided for the purchaser to initial
immediately following the affirmation clause; and
(5) A title insurance policy or a title opinion is issued in
connection with the transaction showing that title to the real estate
purchased or leased is vested in the seller or lessor, subject only to
such exceptions as are approved in writing by the purchaser or lessee,
preferably in a separate document, prior to the recordation of the
instrument of conveyence or excution of the lease. The recordation of a
lease is not required. Any purchaser or lessee may waive, in writing in
a separate document, the requirement that a title insurance policy or
title opinion be issued in connection with the transaction.
24 CFR 1710.559 Part V -- Statutory Exemptions From Registration
Requiring No HUD Determination
The discussions that immediately follow pertain to 15 U.S.C. 1701(b)
(1) through (8) and 24 CFR 1710.6 through 1710.13.
The developer must comply with the Act's anti-fraud provisions (15
U.S.C. 1703(a)(2)) for sales of lots in the subdivision that are exempt
under these provisions. Developers should be particular aware of the
requirements of 15 U.S.C. 1703(a)(2)(D).
(a) One Hundred Lot Exemption. (15 U.S.C. 1702(b)(1) and 24 CFR
1710.6).
This section exempts the sale of lots in a subdivision if: the
subdivision contained fewer than 100 lots on April 28, 1969; has, since
that date, contained fewer than 100 lots; and will continue to contain
fewer than 100 lots. The 100 lot count for purposes of the exemption
excludes lots that are exempt from jurisdiction under 24 CFR 1710.5 (b)
through (h). It should be noted that the 25 lot exemption under
1710.5(a) cannot be used in connection with the 100 lot exemption.
For example, a developer of a subdivision containing a total of 129
lots since April 28, 1969, qualifies for this exemption if at least 30
lots are sold in transactions that are exempt because the lots had
completed homes erected on them. The 30 exempt transactions may fall
within any one exemption or a combination of exemptions noted in 1710.5
(b) through (h) and may be either past or future sales. In the above
example, the developer also could qualify if twelve lots had been sold
with residential structures already erected on them, nine lots had been
sold to building contractors and at least nine lots were reserved for
either the construction of homes by the developer or for sales to
building contractors. The reserved lots need not be specifically
identified.
Developers of subdivisions containing more than 99 lots who wish to
operate under this exemption must assure themselves that all lots in
excess of 99 have been and will be sold in transactions exempt under 24
CFR 1710.5(b) through (h). The sale of more than 99 lots in
transactions not exempt under 1710.5(b) through (h) would nullify this
exemption for prior and future sales and might result in prior sales
being voidable at the purchaser's option.
Since the 100 lot exemption applies to the number of the lots as
opposed to the number of sales, resales of a lot will not be counted
toward the 100 lot limit. However, any sale or resale of a lot must
comply with the anti-fraud provisions.
If fewer than 100 lots are acquired in a larger subdivision, the
offer of these lots will not be exempt if the acquiring party is, in any
way, acting in concert with the previous or current developer of the
balance of the subdivision so as to create a common promotional plan for
100 or more lots unless sales of the other lots are exempt under
1710.5. However, if fewer than 100 lots are acquired in a larger
subdivision, the offer of the lots may be exempt if there is neither an
identity of interest between the acquiring party and the previous or
current developer nor a form of concerted action constituting a common
promotional plan.
(b) Twelve Lot Exemption. (15 U.S.C. 1702(b)(2) and 24 CFR 1710.7).
This section exempts the sale of lots from the registration
requirments of the Act if, beginning with the first sale after June 20,
1980, no more than twelve lots in the subdivision are sold in the
subsequent twelve-month period. Thereafter, the sale of the first
twelve lots each period is exempt from the registration requirements if
no more than twelve lots were sold in each previous twelve-month period
that began with the anniversary date of the first sale after June 20,
1980. For example, if a developer's first lot sale after June 20, 1980
occurred on August 5, 1980 and no more than eleven additional lots in
the subdivision were sold through August 4, 1981, the sales would be
exempt.
During the second year of operation under this exemption (beginning
on August 5, 1981 in the example) at least the first twelve lot sales
would be exempt. However, if lot sales exceed twelve in the second or
any subsequent year, the exemption would terminate on the sale of the
thirteenth lot. Once eligibility has been terminated, the exemption is
no longer available and cannot be recaptured by the same developer for
the same subdivision even if there are fewer than twelve lots sold in
subsequent years.
A developer may apply to the Secretary to establish a different
twelve-month period for use in determining eligibility for the
exemption, and the Secretary may allow the change if it is for good
cause and consistent with the purpose of this section. An example would
be to change the year to coincide with the developer's fiscal or tax
year.
In determining eligibility for this exemption, all lots sold or
leased in the subdivision after June 20, 1980 are counted, whether or
not the lot is registered or the transaction is otherwise exempt, such
as the sale of a home and lot package. This exemption extends to twelve
lots, not twelve sales. Each lot would be counted in the sale or lease
of multiple lots.
Since the twelve lot exemption applies to the number of lots as
opposed to the number of sales, resales of a lot will not be counted
toward the twelve lot limit. The sale and resale of a lot must qualify
for the exemption and comply with the anti-fraud provisions. However,
lot sales exempt under 1710.5(b) through (h), while counted toward the
total of twelve, are not required to comply with the anti-fraud
provisions.
(c) Scattered Site exemption. (15 U.S.C. 1702(b)(3) and CFR 24
1710.8).
This section exempts from the Act's registration requirements the
sale of lots in a subdivision consisting of noncontiguous parts if: (1)
each noncontiguous part of the subdivision contains twenty or fewer
lots; and (2) each purchaser or purchaser's spouse makes a personal,
on-the-lot inspection of the lot purchased before signing a contract.
This exemption is intended to relieve the developers of small,
scattered offerings of the requirement to register their subdivisions.
The exemption may also apply to real estate brokers who have an
ownership interest in more than one site, each containing 20 or fewer
lots.
If a developer intends to rely on this exemption, it is important
that the developer understand the definition of subdivision, how a
common promotional plan is determined and what constitutes a site.
These terms are defined in Part II of these Guidelines.
Lots that are contiguous when they are originally platted or
developed are considered to remain contiguous. For purposes of this
exemption, interruptions such as roads, parks, small bodies of water or
recreational facilities do not serve to break the contiguity of parts of
a subdivision.
(d) Twenty Acre Lots Exemption. (15 U.S.C. 1702(b)(4) and 24 CFR
1710.9).
This section exempts the sale of lots in a subdivision from the
registration requirements of the Act if, since April 28, 1969, each lot
in the subdivision has contained at least twenty acres. In determining
eligibility for the exemption, easements for ingress and egress or
public utilities are considered part of the total acreage of the lot if
the purchaser retains ownership of the property affected by the
easement.
This exemption applies to the entire subdivision and requires that
each lot in the subdivision be twenty acres or larger in order for the
subdivision to qualify. If a single lot offered in the subdivision is
less than twenty acres in size, no lot in the subdivision qualifies for
the exemption. If a developer has two sites which comprise the
subdivision and only one of the sites contains lots that are all greater
than twenty acres in size, the offering of these lots would not be
exempt under this provision. All lots offered pursuant to a common
promotional plan must be considered.
A subdivision which is platted of record and contains a single lot
that is less than twenty acres cannot qualify for the exemption even if
the lots are offered in multiples that aggregate twenty acres or more.
Further, if the platted lots are all twenty acres or more in size, but a
lot is divided and a portion that is less than twenty acres is offered
for sale, the exemption would not be available to the subdivision.
(e) Single-Family Residence Exemption. (15 U.S.C. 1702(b)(5) and 24
CFR 1710.10).
(1) General. This section provides an exemption for the sale of lots
that are limited to single-family residential use. Developers are
advised to carefully review the eligibility requirements listed below
before proceeding with sales. Note especially that some of the
eligibility requirements pertain to the entire subdivision while others
apply to individual lots.
(2) Subdivision Requirements. All lots offered under the same common
promotional plan must comply with the two eligibility requirements
listed below in order for any lot to be eligible for this exemption.
(i) The subdivision must meet all local codes and standards. If
local codes expressly permit incremental development, then only the
portions of the subdivision being offered at any given time are required
to meet the codes and standards to satisfy this requirement. Otherwise,
the entire subdivision must comply with the local standards.
(ii) In the promotion of the subdivision, there cannot be offers, by
direct mail or telephone solicitation, of gifts, trips, or dinners or
the use of similar promotional techniques to induce prospective
purchasers to visit the subdivision or to purchase a lot. There is no
prohibition against using the mails, telephone or other advertising
media to promote or advertise the offering or to respond to inquiries
from potential purchasers. The only prohibition is that these media
cannot contain offers of gifts, trips, dinners or other inducement.
In order to qualify for this exemption, the subdivision must have
complied with the requirements pertaining to advertising and promotional
methods since June 13, 1980, the date the exemption became effective.
(3) Lot Requirements. Having met the elibility requirements for a
subdivision, each lot offered under the exemption also must comply with
the eight requirements listed below. Lots within a subdivision that do
not comply with these additional requirements must either be registered
or sold in compliance with another exemption, even though the two
subdivision requirements have been met.
(i) The lot must be located within a municipality or county where a
unit of local government or the State specifies minimum standards for
the development of subdivision lots taking place within its boundaries.
Each lot must comply with these standards. The following is a list of
the areas which must be regulated:
(A) Lot dimensions.
(B) Plat approval and recordation.
(C) Roads and access.
(D) Drainage.
(E) Flooding.
(F) Water supply.
(G) Sewage disposal.
(ii) Each lot sold under the exemption must be either zoned for
single-family residence or, in the absence of a zoning ordinance,
limited exclusively by enforceable covenants or restrictions to
single-family residences or, in the absence of a zoning ordinance,
limited exclusively by enforceable convenants or restrictions to
single-family residences. Manufactured homes, townhouses, and
residences for one to four family use are considered single-family
residences for purposes of this exemption. Recreational vehicles are
not considered to be residential buildings. Manufactured homes must be
affixed to the real estate to be eligible, e.g., connected to water,
sewer and electrical sources and on blocks with skirts.
The phrase ''. . . in the absence of a zoning ordinance'' is
interpreted in its literal sense. The existence of a zoning ordinance
other than single-family residence zoning is considered to be
disqualifying even if there are convenants or restrictions limited
construction to single-family residences. Situations such as the
foregoing would, however, be a candidate for a substantial compliance
exemption (24 CFR 1710.16) if all other eligibility requirements of the
exemption are satisfied substantially. Substantial compliance is
discussed in Part VII of these Guidelines.
(iii) The lot must be situated on a paved street or highway which has
been built to standards prescribed by a unit of local government in
which the subdivision is located and be acceptable to that local unit.
If the street or highway is not complete, the developer must post a bond
or other surety acceptable to the municipality or county in the full
amount of the cost of completing the street or highway to assure its
completion to local standards. For the purposes of this exemption,
paved means concrete or pavement with a bituminous wearing surface that
is impervious to water, protects the base and is durable under the
traffic load and maintenance contemplated.
(iv) The unit of local government or a homeowners' association must
have accepted or be obligated to accept the responsibility for
maintaining the street or highway upon which the lot is situated. The
obligation of the local government entity to accept this responsibility
may be evidenced by an ordinance which binds the government to maintain
the streets or by a written statement signed by the appropriate
government official. Maintenance independently provided by a developer
is not acceptable under this exemption.
In any case in which a homeowners' association has accepted or is
obligated to accept maintenance responsibility, the developer must,
prior to a purchaser signing a contract or agreement to purchase,
provide the purchaser with a good faith written estimate of the cost of
maintenance over the first ten years of ownership. A good faith
estimate means a current estimate based on documentary evidence, usually
obtainable from the suppliers of the necessary services.
(v) At the time of closing, potable water, sanitary sewage disposal,
and electricity must be extended to the lot or the unit of local
government must be obligated to install the facilities within 180 days
following closing.
The obligation may be in the form of a local statute or written
agreement signed by the appropriate government authority. A local code
or statute that obligates the subdivider or developer to complete
installation of water and sewage disposal systems within a certain time
does not satisfy this requirement of the exemption.
For subdivisions that will not have a central water system, there
must be assurances that an adequate potable water supply is available
year-round to service the subdivision. Assurances of an adequate,
drinkable water supply can be obtained from a hydrologist or the local
health department.
For subdivisions that will not have a central sewage disposal system,
there also must be assurances that each lot is approved for the
installation of a septic tank. If the individual lot is not approved
for the installation of a septic tank at time of sale, the developer may
provide in the contract that approval will be obtained prior to closing
provided that any purchaser deposits and/or payments are placed in an
escrow account with an institution having trust powers in the
jurisdiction where the subdivision is located. All such monies must be
refunded to the purchaser if the approval is not obtained prior to
closing. Closing must occur within 180 days. The approval for the
installation of a septic tank must come from the appropriate government
authority, usually the local health department, local governmental
engineer or county sanitarian. Developers selling lots prior to
obtaining approval for installation of a septic tank on the individual
lot are proceeding at their own risk. The sale will not qualify for the
exemption if the approval is not obtained and the closing does not occur
within 180 days.
(vi) The contract of sale must require delivery of a warranty deed to
the purchaser within 180 days after the signing of the sales contract.
The deed must be free from monetary liens and encumbrances at the time
of delivery. If a warranty deed is not commonly used in the
jurisdiction where the lot is located, a deed or grant that warrants
that the seller has not conveyed the lot to another person may be
delivered in lieu of a warranty deed. The deed or grant used must also
warrant that the lot is free from encumbrances made by the seller or any
other person claiming by, through or under the seller.
(vii) At the time of closing, a current title insurance binder,
policy or title opinion reflecting the condition of title must be issued
or presented to the purchaser showing that, subject only to exceptions
which are approved in writing by the purchaser at the time of closing,
marketable title to the lot is vested in the seller. In order to
satisfy this requirement, a developer may want to obtain the purchaser's
written approval of exceptions to title prior to closing, although the
actual title binder, policy or opinion must be current at the time of
closing and show that title is vested in the seller. If closing occurs
and the purchaser has not approved the exceptions to title in writing,
the sale would not be exempt under this provision.
The party that bears the cost of the title binder, policy or opinion
is not relevant to eligibility for the exemption.
Unless otherwise defined by state law, the time of closing is the
date that legal title to the property is transferred from seller to
buyer.
(viii) The purchaser or purchaser's spouse must make a personal,
on-the-lot inspection of the lot purchased prior to signing a contract
or agreement to purchase.
(f) Mobile home exemption. (15 U.S.C. 1702(b)(6) and 24 CFR 1710.11)
For purposes of this exemption, a mobile home is a unit receiving a
label in conformance with HUD Regulations implementing the National
Manufactured Housing Construction and Safety Standards Act of 1974 (42
U.S.C. 5401, et seq.).
This section exempts the sale of a mobile home lot from the
registration requirements of the Act when all eligibility requirements
listed below are met:
(1) The lot is sold as a homesite by one party and a mobile home is
sold by another party, and the individual contracts of sale:
(i) Obligate the sellers to perform, contingent upon the other seller
carrying out its obligations, so that a completed mobile home will be
placed on a completed homesite within two years after the date the
purchaser signs the contract to purchase the lot (see Part IV(b) of
these guidelines for HUD's position on two year completion
requirements);
(ii) Provide that all funds received by the sellers are to be
deposited in escrow accounts independent of the sellers until the
transactions are completed;
(iii) Provide that funds received by the sellers will be released to
the buyer upon demand if either of the sellers do not perform; and
(iv) Contain no provisions that restrict the purchaser's right to
specific performance under state law.
(2) The homesite is developed in conformance with all local codes and
standards, if any, for mobile home subdivisions.
(3) At the time of closing:
(i) Potable water and sanitary sewage disposal are available to the
homesite and electricity has been extended to the lot line:
(ii) The homesite is accessible by roads;
(iii) The purchaser receives marketable title to the lot; and
(iv) Other common facilities represented in any manner by the
developer or agent to be provided are completed or, in the alternative,
there are letters of credit, cash escrows or surety bonds in a form
acceptable to the local government in an amount equal to 100 percent of
the estimated cost of completion. Corporate bonds are not acceptable
for purposes of the exemption.
(g) Intrastate Exemption. (15 U.S.C. 1702(b)(7) and 24 CFR 1710.12).
This section exempts the sale or lease of real estate in a sales
operation that is intrastate in nature. The lot must be free and clear
of all liens, encumbrances and adverse claims. The following six
eligibility requirements must be met before a lot qualifies for this
exemption:
(1) The sale of lots in the subdivision after December 20, 1979, must
have been and must continue to be restricted solely to residents of the
state in which the subdividion is located, unless the sale is exempt
under 24 CFR 1710.5, 1710.11 or 1710.13. Sales of lots exempt under
1710.5, 1710.11 or 1710.13 may be to out-of-state purchasers without
affecting the eligibility of the overall subdivision for the intrastate
exemption. Any other sales to out-of-state purchasers, even if the lots
were registered or otherwise exempt under any other section, would make
the entire subdivision ineligible for the intrastate exemption.
Residency is determined by state law. For purposes of this
exemption, a developer may rely on a statement signed by the purchaser
or lessee as to the state of residence. Obviously, the prospective
purchaser must be an actual resident of the state at the time of signing
the sales contract as opposed to a person visiting the state or planning
to move into the state. However, service personnel may, at their
option, claim the state in which they are stationed.
(2) The purchaser or purchaser's spouse must make a personal
on-the-lot inspection of the lot to be purchased before signing a
contract. Evidence of this inspection should be retained by the
developer.
(3) Each contract must:
(i) Specify the developer's and purchaser's responsibilities for
providing and maintaining roads, water and sewer facilities and any
existing or promised amenities.
If the developer is not responsible for providing or completing a
particular service or amenity, the contract should make it clear that it
is up to the buyer to make the necessary arrangements for the desired
services. If a third party is involved, the contract must specify
whether the buyer or seller is responsible for making the required
arrangements;
(ii) Contain a good faith estimate of the year in which the roads,
water and sewer facilities and promised amenities will be completed.
This estimate is required for any facility the developer promises or
indicates will be completed. Estimates should be based on documentary
evidence, such as contracts, engineering schedules or other evidence of
commitments to complete the facilities and amenities; and
(iii) Contain a non-waivable provision giving the purchaser the right
to revoke the contract until at least midnight of the seventh calendar
day following the date the purchaser signed the contract. This
revocation right cannot be restricted to a specific method of
notification such as requiring notification to be in writing. If the
purchaser is entitled to a longer revocation period by operation of
state law, that period automatically becomes the Federal revocation
period and the contract must reflect the longer period. If the
purchaser revokes the contract during this cooling-off period, he or she
is entitled to a full refund of all money paid.
(4) The lot being sold must be free and clear of all liens,
encumbrances and adverse claims. To remain exempt, the real estate must
remain free and clear of all liens, encumbrances and adverse claims,
with the exception of those placed on the property by the purchaser.
Thus, real estate that is sold under a installment contract prior to
conveyance by deed cannot be burdened by a lien and still qualify for
the exemption. If a lien is placed on the property, the exemption is
automatically terminated at the time the lien is perfected.
The fact that a title company will insure against a lien, encumbrance
or adverse claim has no bearing in determining whether or not the sale
qualifies for the exemption. Except as noted below, the existence of a
lien, encumbrance or adverse claim disqualifies the affected lot or lots
for this exemption. The only exceptions to this requirement are listed
below:
(i) Mortgages or deeds of trust containing release provisions for the
individual lot purchased if:
(A) The contract of sale obligates the developer to deliver a free
and clear warranty deed or its equivalent under local law within 180
days (constructive delivery is acceptable); and
(B) The purchaser's payments are deposited in an escrow account
independent of the developer until a deed is delivered. The escrow
account must be with an institution which has trust powers or in an
established bank, title insurance, abstract or escrow company that is
doing business in the jurisdiction in which the property is located.
The purchaser's earnest money payment or any other payment by the
purchaser cannot be used to obtain a release from the mortgage and may
not be released from escrow until the deed is delivered.
(ii) Liens that are subordinate to the leasehold interest and do not
affect the lessee's right to use or enjoy the lot.
(iii) Property reservations that are for the purpose of bringing
public services to the land being developed, such as easements for water
and sewer lines.
Other acceptable property reservations are easements for roads and
electric lines to serve the subdivision as well as certain drainage
easements. The reservation of subsurface oil, gas or mineral rights is
acceptable unless the reservation expressly or impliedly includes the
right of ingress and egress upon the property. Examples of the types of
reservations and easements that are unacceptable and disqualify the
burdened property for the exemption include easements for high power
transmission lines, telephone long lines, pipelines and bridle trails.
(iv) Taxes or assessments which constitute liens before they are due
and payable if imposed by a state or other public body having authority
to assess and tax property or by a property owners' association.
(v) Beneficial property restrictions that are mutually enforceable by
all lot owners in the subdivision.
Developers who wish to maintain control of a subdivision indefinitely
through a Property Owners' Association, Architectural Control Committee,
and/or restrictive covenants will find the requirements of this
exemption unsuitable.
In recognition of the fact that developer control is unavoidable
until lots are sold, for the purpose of this exemption, a developer must
provide an opportunity for the transfer of control to all lot owners at
or before the time when the developer no longer owns a majority of total
lots in, or planned for, the subdivision. Relinquishment of developer
control must require affirmative action, usually in the form of an
election based upon one vote per lot.
The developer may continue to participate in the control of the
subdivision to the extent that lots remain unsold. For example, a
developer who still owns thirty percent of the lot inventory has a
thirty percent voting block on issues regarding the subdivision.
It is acceptable for the developer to appoint, during the initial
stages of development, a governing body (panel, commission, etc.) whose
members subsequently are elected and re-elected by all the lot owners to
administer subdivision control.
To be enforceable, restrictions must be part of a general plan of
development. Restrictions, whether separately recorded or incorporated
into individual deeds, must be applied uniformly to every applicable lot
or group of lots. To be considered beneficial and enforceable, any
restriction or covenant that imposes an assessment on lot owners must
apply to the developer on the same basis as other lot owners.
(vi) Reservations contained in United States land patents and similar
Federal grants or reservations are excepted from the term liens but must
be disclosed in the Intrastate Exemption Statement.
Many of the land patents by which land west of the Mississippi River
was originally conveyed contain reservations to the United States for
minerals and water rights-of-way for canals and ditches. These
reservations as well as any other Federal grants or reservations must be
disclosed but are not disqualifying factors.
(5) Before the sale the developer must disclose in a written
statement (see sample below) to the purchaser all liens, reservations,
taxes, assessments and restrictions applicable to the lot purchased.
The developer must obtain a written receipt from the purchaser
acknowledging that the statement required by this subparagraph was
delivered.
Neither the statement nor the written receipt have to be submitted to
HUD, but copies of the purchaser receipts should be available for review
upon demand by the Secretary or his or her designee. It is suggested
that the developer retain the purchaser receipts for at least three
years.
(6) The written statement (see sample below) also must include good
faith cost estimates for providing electric, water, sewer, gas and
telephone service to the lot. Estimates must include all costs
associated with obtaining the services. For example, if private wells
are the water source, the estimate should include the cost of the well,
pump, casing, etc. Likewise, if butane or propane gas is used, the
statement must include the cost of installing a tank and the per gallon
cost of the gas.
The estimates for services applicable to unsold lots must be updated
every two years or more frequently if the developer has reasons to
believe that at least a $100 increase or decrease for a particular item
has occurred. The dates on which the estimates were made must be
included in the statement.
Effective state property reports or disclosure statements containing
all the information required in the Intrastate Exemption Statement may
be used in lieu of a separate statement. State property reports which
do not contain all the information required in the Intrastate Exemption
Statement may be used only of they are supplemented with the missing
information.
Name of Developer
Address
Name of Subdivision
Location
24 CFR 1710.559 Liens
(Provide a clear and concise listing of all liens on the property.
As used in this statement, liens are security interests such as
mortgages or deeds of trust, tax liens, mechanics liens or judgments.
Liens which are acceptable for proposes of the exemption are those which
contain release provisions for the individual lot purchased but only if
the contract of sale obligates the developer to deliver a deed within
180 days and the purchaser's payments are held in an independent escrow
account until a deed is delivered and, in the case of leases, liens
which are subordinate to the lease hold interest and do not affect the
lessee's right to enjoy or use the lot.)
A chart similar to the following may be used:
24 CFR 1710.559 Reservations
(Disclose all easements and reservations affecting the lots which are
offered for sale. The preceding narrative contains examples of easements
and reservations which are acceptable.)
24 CFR 1710.559 Taxes
(Provide sufficient information to enable a purchaser to estimate the
annual taxes due on the lot purchased.)
24 CFR 1710.559 Assessments
(Disclose all assessments, fees and dues which have been imposed or
may be imposed. The list of assessments, fees and dues must show the
rates and amounts and explain who has the authority for imposing the
listed assessments, fees and dues.)
24 CFR 1710.559 Restrictions
(Recite verbatim all restrictions that apply to the lots being
offered. In the alternative, the developer may attach a complete copy of
all restrictions affecting the lots. If the restrictions do not apply to
all the lots in the offering, the developer should specify which lots
are affected by the restrictions. In addition, the developer should
explain who has the authority to enforce the restrictions and indicate
whether or not the restrictions are recorded.)
24 CFR 1710.559 Utility Cost Estimates
(Disclose a good faith estimate of the cost to the purchaser of
providing water, electric, telephone, sewage disposal and gas service to
each lot offered under the exemption. The estimate must include all
costs associated with obtaining the services.)
A chart similar to the following may be used.
I affirm that to the best of may knowledge the above information is
accurate and complete.
--
(Signature of Developer or Authorized Agent)
--
(Date)
--
(Title)
24 CFR 1710.559 Purchaser's Acknowledgement
(The developer must obtain a written receipt from the purchaser
acknowledging that the purchaser received a written statement(s) of all
liens, reservations, taxes, assessments and restrictions applicable to
the lot and good faith estimates of the cost of providing electric,
water, sewer, gas and telephone service to the lot.)
The receipt may be in the following form:
I acknowledge that I have received an Intrastate Exemption Statement
listing all liens, reservations, taxes, assessments, restrictions and
estimates of utility costs applicable to (identify the subdivision and
its location) from (name of developer). I have made a personal
on-the-lot inspection of (identify the lot), which is the lot I am
interested in buying or leasing.
--
(Signature of Purchaser)
--
(Date)
(h) Metropolitan Statistical Area (MSA) Exemption. (15 U.S.C.
1702(b)(8) and 24 CFR 1710.13).
This section exempts the sale or lease of lots in a subdivision
located in a Metropolitan Statistical Area (MSA). The eligibility
criteria for the MSA Exemption are the same as that of the Intrastate
Exemption with the following exceptions:
(1) The subdivision must have contained fewer than 300 lots on and
since April 28, 1969 and continue at or below that quantity in the
future;
(2) The lot(s) must be located in a MSA as defined and designated by
the U.S. Office of Management and Budget;
(3) The principal residence of each purchaser must be within the same
MSA;
(4) Adverse claims that are disqualifying for the Intrastate
Exemption are acceptable for the MSA Exemption. The only requirement in
this regard is for the adverse claim to be disclosed in the MSA
Exemption Statement. The party making the claim, the basis of the claim
and the property affected by the claim must be identified; and
(5) Although the MSA exemption is self-determining, a written
affirmation must be submitted by developers relying on this exemption.
The due date is January 31 of each year. Failure to submit the
affirmations will disqualify the subdivision for this exemption.
The written affirmation must be in the following format:
Developer's Name
Developer's Address
Purchaser's Name(s)
Purchaser's Address(es) (including county)
Name of Subdivision
Legal Description of Lot(s) Purchased
I hereby affirm that all of the requirements of the MSA exemption as
set forth in 15 U.S.C. 1702(b)(8) and 24 CFR 1710.13 have been met in
the sale or lease of the lot(s).
I also affirm that I submit to the jurisdiction of the Interstate
Land Sales Full Disclosure Act with regard to the sale or lease cited
above.
--
(Date)
--
(Signature of Developer or Authorized Agent)
--
(Title)
--
The sample Intrastate Exemption Statement shown above may be used as
a guide in preparing the MSA Exemption Statement. Simply substitute
references to the MSA Exemption in lieu of references to the Intrastate
Exemption and add a provision for disclosure of Adverse Claims after the
discussion of Restrictions and before the caption Utility Cost
Estimates.
24 CFR 1710.559 Part VI -- Regulatory Exemptions From Registration Requiring No HUD Determination -- (24 CFR 1710.14)
24 CFR 1710.559 (a) General
The Secretary has established several regulatory exemptions from the
registration and full disclosure requirements of the Act (i.e., filing a
Statement of Record and furnishing a Property Report). These exemptions
are self-determining and do not require a submission to HUD.
To qualify, a developer must satisfy the eligibility criteria at all
times. Exempt status ends when a developer fails to immediately comply
with the eligibility criteria. Furthermore, if there are reasonable
grounds to believe that the use of any of these regulatory exemptions is
not in the public interest in a particular case, the Secretary may deny
the use of the exemption by an otherwise eligible subdivision, site or
lot. The developers will be given notice and an opportunity for hearing
before a final determination is made. Proceedings under this provision
follow the requirements set forth in the regulations (24 CFR 1720.105,
et seq.) and are patterned after the notice and time requirements of a
proceeding pursuant to 24 CFR 1710.45(b)(1).
If a sale meets any one of the following requirements, it qualifies
for exemption from the registration requirements of the Act. However,
qualifying sales must comply with the anti-fraud provisions.
24 CFR 1710.559 (b) Eligibility Requirements
24 CFR 1710.559 (1) Inexpensive Lots (24 CFR 1710.14(a)(1))
The sale or lease of a lot for less than $100, including closing
costs, is exempt if the purchaser or lessee is not required to purchase
or lease more than one lot. This exemption is available on a lot-by-lot
basis. The entire subdivision need not qualify.
24 CFR 1710.559 (2) Leases for Limited Duration (24 CFR 1710.14(a)(2))
The lease of a lot for a term of five years or less is exempt if the
terms of the lease do not obligate the lessee to renew. This exemption
is available on a lot-by-lot basis. The entire subdivision need not
qualify.
The use of an arrangement that is called a lease but is tantamount to
the sale or long-term lease of a lot would not qualify for this
exemption; i.e., a lease with a large initial payment or substantial
payments over five years and token payments thereafter.
A five-year lease with an option to purchase or renew would be
suspect under this exemption and might or might not qualify depending on
the overall transaction. In these cases, a request for an Advisory
Opinion is strongly recommended.
24 CFR 1710.559 (3) Lots Sold to Developers (24 CFR 1710.14(a)(3))
The sale or lease of lots to a person who is engaged in a bona fide
land sales business is exempt. For a transaction to qualify for this
exemption, the purchaser must be a person who plans to subsequently sell
or lease the lot(s) in the normal course of business. The term business
refers to an activity of some continuity, regularity and permanency, or
means of livelihood. The sale or lease of lots to an individual who is
buying the property for investment, to be sold at some unforeseeable
time in the future, would not be exempt under this provision. This
exemption is available on a lot-by-lot basis, although most transactions
would include more than one lot. The entire subdivision need not
qualify.
24 CFR 1710.559 (4) Adjoining Lot (24 CFR 1710.14(a)(4))
The sale or lease of a lot to a purchaser who owns a contiguous lot
that has a residential, commercial, or industrial building on it is
exempt. This exemption permits a developer to sell or lease unimproved
lots to persons wishing to enlarge the property on which their home or
business is located. This exemption is available on a lot-by-lot basis.
24 CFR 1710.559 (5) Lot Sales to a Government (24 CFR 1710.14(a)(5))
The sale or lease of real estate to a government or government agency
is exempt. This exemption is available on a lot-by-lot basis. The
entire subdivision need not qualify.
24 CFR 1710.559 (6) Sales of Leased Lots (24 CFR 1710.14(a)(6))
The sale of a lot or lots on which the purchaser has maintained his
or her primary residence for at least one year is exempt. Typically,
these sales will occur in a mobile home subdivision. This exemption is
available on a lot-by-lot basis. The entire subdivision need not
qualify.
24 CFR 1710.559 (c) Termination
If HUD has reasonable grounds to believe that exemption from
registration in a particular case is not in the public interest, HUD may
terminate the exemption as to a subdivision or as to particular lots in
a subdivision. Termination could be ordered only after the developer is
notified of HUD's intention to terminate and is afforded a hearing
opportunity. The reasons for termination will vary from case to case
but could include unlawful sales practices by the developer or its
agents, insolvency or adverse information about the lots or the
subdivision that should be disclosed to purchasers.
24 CFR 1710.559 Part VII -- Regulatory Exemption. HUD Determination
Required -- (24 CFR 1710.16)
An Exemption Order is available for a subdivision or certain lots in
a subdivision that technically do not comply with the eligibility
requirements of one of the other available exemptions. However, to
qualify for an Exemption Order, the offering must substantially comply
with the eligibility requirements.
In evaluating the circumstances of an Exemption Order request, HUD
examines the basic intent and legislative history of the exemption that
the developer claims to substantially meet. If the offering is not
consistent with the basic intent, an Exemption Order will not be issued
even though some of the technical requirements of that exemption are
met.
Offerings that involve circumstances that are equal to or better than
the technical requirements, or that are consistent with the basic intent
of the exemption, will be judged to be in substantial compliance and an
Exemption Order will be issued. It should be noted that an Exemption
Order applies only to sales after the date of the Order and has no
retroactive effect.
This is the only exemption that requires submission of a request and
a determination by HUD before it is effective. Developers wishing to
request an Exemption Order must submit the information listed below:
(a) A detailed statement describing how the proposed sales of lots
meet, or substantially meet, each of the eligibility requirements of the
exemption that the developer claims to substantially meet.
(b) A copy of the contract to be used. The contract must:
(1) Specify the developer's and purchaser's responsibilities for
providing and maintaining roads, water and sewer facilities and any
existing or promised amenities. If the developer is not responsible for
providing or completing a particular service, the contract should make
it clear that it is up to the buyer to make the necessary arrangements
for desired services; and
(2) Contain a good faith estimate of the year in which the roads,
water and sewer facilities and promised amenities will be completed.
This estimate is required for any facility the developer promises or
indicates will be completed. Estimates should be based on documentary
evidence, such as contracts, engineering schedules or other evidence of
commitments to complete facilities and amenities; and
(3) Contain a non-waivable provision giving the purchaser the
opportunity to revoke the contract until at least midnight of the
seventh calendar day following the date the purchaser signed the
contract. If the purchaser is entitled to a longer revocation period by
operation of state law, that period becomes the Federal revocation
period and the contract must reflect the requirements of the longer
period; and
(4) Contain a provision that obligates the developer to deliver to
the purchaser within 180 days of the date the purchaser signed the sales
contract, a warranty deed, or its equivalent under local law, which at
the time of delivery is free from any monetary liens or encumbrances.
(c) A plat of the entire subdivision with the lots subject to the
exemption delineated.
(d) A description of how the lots have been and will be promoted and
to which population centers the promotion has been and will be directed.
(e) Documentation to establish that each purchaser or purchaser's
spouse will make an on-the-lot inspection of the lot to be purchased
before the contract is signed.
(f) A filing fee in the amount set forth in 1710.35(c) in the form
of a certified check, cashier's check or postal money order made payable
to the U.S. Treasury.
If, after an Exemption Order has been issued, HUD has reasonable
grounds to believe that the exempt status of the subdivision or
individual lots is not in the public interest, the Exemption Order may
be terminated. Such an action would be preceded by a notice giving the
developer an opportunity to request a hearing on the allegations leading
to termination. For example, proceedings may be initiated because of
the apparent omissions or misrepresentations in the information upon
which the Exemption Order was based, the unethical conduct of the
developer or the developer's agent or the presence of adverse conditions
at or about the real estate which should be brought to the attention of
purchasers by way of a disclosure document.
Some examples of substantial compliance are listed below. These are
examples only and presume that all other applicable eligibility
requirements of the exemption are either fully met or substantially met.
It should be remembered that substantial compliance can occur with
virtually any of the twenty-two available exemptions.
(1) One of the eligibility requirements for the Single-Family
Residence Exemption is that the lots be zoned as single-family
residential or, in the absence of a zoning ordinance, restricted t
single-family residence development by enforceable convenants or
restrictions. As stated before, the phrase ''* * * in the absence of a
zoning ordinance * * *'' is interpreted in its most literal sense.
Therefore, the existence of any zoning ordinance other than
single-family residence zoning is a disqualifying factor for the
exemption.
However, substantial compliance would be considered if a different
zoning ordinance existed and the enforceable covenants or restrictions
limited development to single-family residences.
(2) Another eligibility requirement for the Single-Family Residence
Exemption states that, at the time of closing, potable water, sanitary
sewage disposal and electricity must be extended to each lot or the unit
of local government must be obligated to install these facilities within
180 days following closing.
Substantial compliance with this provision woud be considered in
those cases where one or more of these utilities is not available but
the developer has a contract with a publicly regulated utility to
install the facilities within 180-days following closing or upon demand
of the purchaser.
Furthermore, substantial compliance would be considered if the
utility trunk lines are reasonably close to the lots instead of at each
lot line.
(3) An eligibility requirement for the Intrastate Exemption is that
the lot sold must be free and clear of all liens, encumbrances and
adverse claims. Mineral reservations have been deemed to be acceptable
so long as the reservation does not include the right of ingress or
egress upon the property.
If the right of ingress or egress exists, substantial compliance will
be considered if there are written, recorded provisions from the
owner(s) of the mineral rights for compensating the lot owner for loss
of the use or enjoyment of the property when such rights are exercised.
24 CFR 1710.559 Part VIII -- Advisory Opinion -- Secretary's Opinion May Be Requested -- (24 CFR 1710.17)
24 CFR 1710.559 (a) General
When it is not clear that an offering is either exempt under the
self-determined statutory or regulatory provisions or whether
jurisdiction exists, an Advisory Opinion may be requested to clarify the
situation. The filing requirements are found in 24 CFR 1710.17 of the
regulations and are described in (b) and (c) below.
The material to be submitted with all requests for Advisory Opinions
is described under (b) below. In most cases, depending on the provision
under which an exemption is claimed, additional documentation is needed
before an opinion can be given. Review (c) below to determine what
additional documentation is customarily needed before submitting a
request.
HUD's Advisory Opinions are based upon and limited to the
representations made by the developer. Therefore, if a favorable
Advisory Opinion is issued based upon incomplete, improper or incorrect
representations, the Opinion has no binding effect.
24 CFR 1710.559 (b) Basic Requirements For Submission
(1) A filing fee in the amount required by 1710.35(c) in form a
certified check, cashier's check or postal money order made payable to
the U.S. Treasury.
(2) A comprehensive description of the conditions and operations of
the offering. Specify the provision(s) of the Act or regulations under
which sales are believed to be exempt or why there is no jurisdiction.
24 CFR 1710.559 (c) Additional Requirements For Submission
Depending on the provision under which an exemption is claimed, a
developer may be required to submit additional information. Beginning
with the exemption under 24 CFR 1710.5(a) of the regulations and ending
with 24 CFR 1710.14, the additional information that should be submitted
with a request for an Advisory Opinion is listed below. In some cases,
information or documentation other than that specified may be requested
after a submission has been reviewed by HUD.
(1) To obtain an Advisory Opinion pertaining to 24 CFR 1710.5(a), the
''25 lot'' exemption, submit a plat of the subdivision. Submit a
listing of any other properties in which the developer has an interest
and the geographic relationship of those properties to the subdivision
for which the exemption is claimed. If other properties are divided or
proposed to be divided, indicate the total number of lots planned.
Indicate those properties which will be offered by the same sales
personnel or through the same sales office as the subdivision for which
the exemption is claimed. Describe how the lots are marketed, i.e., who
sells the lots, how the lots are advertised, whether prospective
purchasers are referred between subdivisions, etc.
(2) To obtain an Advisory Opinion pertaining to 24 CFR 1710.5(b), the
''improved lot'' exemption, submit a copy of the contract of sale or
lease and an opinion of local counsel with respect to whether the
contract meets the exemption's requirements under the law in the
jurisdiction in which the subdivision is located.
(3) To obtain an Advisory Opinion pertaining to 24 CFR 1710.5(c), the
''evidences of indebtedness'' exemption, describe the security
arrangement and submit a copy of the evidence of indebtedness.
(4) To obtain an Advisory Opinion pertaining to 24 CFR 1710.5(d), the
''securities'' exemption, no additional documentation is customarily
required to be submitted with the request.
(5) To obtain an Advisory Opinion pertaining to 24 CFR 1710.5(e), the
''government sales'' exemptions, specify the government agency selling
the property and submit the enabling legislation.
(6) To obtain an Advisory Opinion pertaining to 24 CFR 1710.5(f), the
''cemetary lots'' exemption, no additional documentation is customarily
required to be submitted with the request.
(7) To obtain an Advisory Opinion pertaining to 24 CFR 1710.5(g), the
''sales to builders'' exemption, submit specific information showing
that the purchaser or lessee is engaged in the business of building or
is acquiring the real estate for resale or lease to a builder.
(8) To obtain an Advisory Opinion pertaining to 24 CFR 1710.5(h), the
''industrial or commercial development'' exemption submit a plat and
supporting documentation, including a copy of the instrument containing
the purchaser or lessee affirmation and evidence of the zoning or, in
the absence of zoning, restrictive covenants.
(9) To obtain an Advisory Opinion pertaining to 24 CFR 1710.6, the
''100 lot'' exemption, submit a plat of the subdivision. In addition,
submit a listing of any other properties in which the developer has an
interest and the geographic relationship of those properties to the
subdivision for which the exemption is claimed. If other properties are
divided or proposed to be divided, indicate the total number of lots
planned. Indicate those properties that will be offered by the same
sales personnel or through the same sales office as the subdivision for
which the exemption is claimed. Describe how the lots are marketed,
i.e., who sells the lots, how the lots are advertised, whether
prospective purchasers are referred between subdivisions, etc.
(10) To obtain an Advisory Opinion pertaining to 24 CFR 1710.7, the
''12 lot'' exemption, submit a list of all lots sold under the same
common promotional plan since June 20, 1980. (Review Part II(b) of
these Guidelines for an explanation of common promotional plan.)
Indicate the date of each sale. State whether the developer has been
involved in the sale of any other real estate since June 20, 1980 and
indicate how it is intented that future sales will be restricted.
(11) To obtain an Advisory Opinion pertaining to 24 CFR 1710.8, the
''scattered sites'' exemption, submit a plat of the site and list the
name and geographic location of all other properites in which the
developer has an interest. State the extent of the developer's
interest.
(12) To obtain an Advisory Opinion pertaining to 24 CFR 1710.9, the
''20 acre lots subdivision'' exemption, submit a plat of the subdivision
with the acreage of each lot clearly delineated. In addition,
substantiate that all lots offered under the same common promotional
plan are greater than 20 acres in size and have been that size since
April 29, 1969. Describe all properties in which the developer has an
interest and the geographic relationship of such properties to the
subdivision for which the exemption is claimed. Indicate those
properties which will be offered by the same sales personnel or through
the same sales office as the subdivision for which the exemption is
claimed. Describe how the properties are marketed, i.e., who sells the
lots, how the lots are advertised, whether purchasers are referred
between subdivisions, etc.
(13) To obtain an Advisory Opinion pertaining to 24 CFR 1710.10, the
''single-family residence'' exemption, address each of the subdivision
requirements and the eight lot requirements as set forth in Part V(e) of
these Guidelines. For example, the developer should specifically state
how the condition of title will be demonstrated, that the purchaser's
approval of exceptions to title will be obtained prior to closing and
that the purchasers will make a personal on-the-lot inspection prior to
signing the contract. The submission should describe how the standards
are being enforced by the local authorities. The submission must also
describe the marketing and promotion of the subdivision.
The submission should be accompanied by documentation including a
copy of the contract of sale and a copy of the state or local minimum
standards. The documents submitted must include minimum standards for
each of the eight areas listed in the regulations. The documentation
should clearly show that the standards are being enforced and are not
merely discretionary. If the developer states that the local
authorities will take over responsibility for the roads, submit
documentation evidencing that intent. If the developer represents that
water is the purchaser's responsibility, submit a copy of the
appropriate report assuring that an adequate year-around water supply is
available. If septic tanks are to be used, submit a copy of the
approval for their installation and a statement of how approval will be
obtained for each lot.
The above listing is not comprehensive. It is designed to give the
developer an idea of the type of statements and documentation which will
be requested before an opinion will be issued.
(14) To obtain an Advisory Opinion pertaining to 24 CFR 1710.11, the
''manufactured home'' exemption, identify who is selling the lot and who
is selling the manufactured home. Submit a copy of the contracts to be
used.
(15) To obtain an Advisory Opinion pertaining to 24 CFR 1710.12, the
''intrastate'' exemption, submit a copy of the contract of sale, the
Intrastate Exemption Statement, the restrictive covenants, a statement
of the status of mineral right ownershp and the enabling document(s) of
the Property Owners' Association or condominium association including
the by-laws, if any. If sales have been made since December 20, 1979,
submit a list of such sales with the purchaser's name, address at the
time of sale, date of sale and lot number(s).
(16) To obtain an Advisory Opinion pertaining to 24 CFR 1710.13, the
''MSA'' exemption, submit a copy of the contract of sale, plat, and MSA
Exemption Statement. If sales have been made, submit a list of such
sales with the purchaser's name, address at the time of sale, date of
sale and lot number(s).
(17) To obtain an Advisory Opinion pertaining to 24 CFR
1710.14(a)(1), the ''inexpensive lots'' exemption, submit a copy of the
proposed promotional materials and the documents to be used in the sale.
(18) To obtain an Advisory Opinion pertaining to 24 CFR
1710.14(a)(2), the ''limited term leases'' exemption, submit a copy of
the lease and other documentation relevant to the lease transaction.
(19) To obtain an Advisory Opinion pertaining to 24 CFR
1710.14(a)(3), which exempts sales of lots to developers, submit
information to substantiate the claim that the purchaser is in the land
sales business.
(20) To obtain an Advisory Opinion pertaining to 24 CFR
1710.14(a)(4), the ''adjoining lot'' exemption, submit a map showing the
lot on which the purchaser owns a residential, commercial or industrial
building and the lot to be purchased.
(21) To obtain an Advisory Opinion pertaining to 24 CFR
1710.14(a)(5), the ''sales to government'' exemption, name the
Government entity and submit a copy of the legal document by which the
entity was created or a document evidencing the governmental decision to
purchase.
(22) To obtain an Advisory Opinion pertaining to 24 CFR
1710.14(a)(6), the ''sales of leased lots'' exemption, state the
circumstances which the purchaser has lived on or will have lived on the
lot for one year or more and submit a copy of the lease or other
agreement entitling the purchaser to occupy the lot. State whether the
purchaser is using the lot as his or her primary residence.
24 CFR 1710.559 Part IX -- No-Action Letter -- (24 CFR 1710.18)
The availability of expanded regulatory exemptions has resulted in
the exemption of most transactions which may previously have warranted
the issuance of a No-Action Letter. Nevertheless, there may be
instances when one or more sales or leases fall within the purview of
the Act but do not qualify for an exemption, although the circumstances
of the sales or leases may be such that no affirmative action is needed
to protect the public interest and prospective purchasers.
In such instances, a No-Action Letter may be requested. The request
should include a thorough explanation of the proposed transaction(s) and
the facts and supporting documentation necessary to demonstrate that no
affirmative action is needed in the particular situation. If a request
for a No-Action Letter is based upon a belief that the offering is
ineligible for an exemption due to a minor technicality, demonstrate how
other provisions of the particular exemption are met.
The issuance of a No-Action Letter will not affect any right or
remedy that the purchaser may have under the Act, including the right to
rescind a contract for a period of two years. A No-Action Letter simply
signifies that HUD will not take any affirmative action to require
registration. However, the issuance of a No-Action Letter does not
preclude any future agency action which may become necessary because of
new information or a change in the circumstances.
HUD's No-Action Letters are based upon and limited to representations
made by the developer. Therefore, if a favorable No-Action Letter is
issued based upon incomplete, improper or incorrect representations, the
Letter has no binding effect.
In no event will a No-Action Letter be issued if the sale or lease
has already occurred.
There is no prescribed format for requesting a No-Action Letter.
Therefore, describe the circumstances as fully as possible following a
general rule that too much information is better than too little. Upon
review of the information submitted, additional clarification may be
required to permit a final determination.
(Pub. L. 90-448, 82 Stat. 476, 590; 15 U.S.C. 1701)
(49 FR 31375, Aug. 6, 1984; 49 FR 33228, Aug. 22, 1984; 49 FR
33874, Aug. 27, 1984; 49 FR 35934, Sept. 13, 1984; 50 FR 10943, Mar.
19, 1985)
24 CFR 1710.559 PART 1715 -- PURCHASERS' REVOCATION RIGHTS, SALES PRACTICES AND STANDARDS
24 CFR 1710.559 Subpart A -- Purchasers' Revocation Rights
Sec.
1715.1 General.
1715.2 Revocation at time of sale or lease.
1715.3 Revocation -- Nondelivery of property report prior to signing
of contract.
1715.4 Contract requirements and revocation.
1715.5 Reimbursement.
24 CFR 1710.559 Subpart B -- Sales Practices and Standards
1715.10 General.
1715.15 Unlawful sales practices -- Statutory provisions.
1715.20 Unlawful sales practices -- Regulatory provisions.
1715.25 Misleading sales practices.
1715.27 Fair housing.
1715.30 Persons to whom Subpart B is inapplicable.
24 CFR 1710.559 Subpart C -- Advertising Disclaimers
1715.50 Advertising disclaimers; subdivisions registered and
effective with HUD.
Authority: Sec. 1419, Interstate Land Sales Full Disclosure Act, 82
Stat. 590, 598; 15 U.S.C. 1718; sec. 7(d) Dept. of Housing and Urban
Development Act, 42 U.S.C. 3535(d).
Source: 45 FR 40496, June 13, 1980, unless otherwise noted.
24 CFR 1710.559 Subpart A -- Purchasers' Revocation Rights
24 CFR 1715.1 General.
The purpose of this subpart is to enumerate the conditions under
which purchasers may exercise revocation rights. If more than one
document of sale is used in a sale or lease transaction, the revocation
period required to be set forth in the document starts at the time of
signing of the first document.
24 CFR 1715.2 Revocation at time of sale or lease.
All purchasers have the option to revoke a contract or lease with
regard to a lot not otherwise exempt under 1710.5 through 1710.11 and
1710.14 until midnight of the seventh day following the signing of a
contract or agreement. If a purchaser is entitled to a longer
revocation period by operation of State law or the Act, that period
becomes the Federal revocation period rather than the seven days. All
contracts and agreements (including promissory notes) for lot sales and
leases must clearly state that the longer revocation period is available
to purchasers.
24 CFR 1715.3 Revocation -- Nondelivery of property report prior to
signing of contract.
Purchasers may revoke contracts and agreements (including promissory
notes) within two years from the date of signing the contract or
agreement if the required Property Report was not given to the purchaser
before the signing of the contract or agreement. A statement providing
for this right of revocation must be contained in the contract or
agreement and any promissory notes.
24 CFR 1715.4 Contract requirements and revocation.
(a) A contract or agreement, including a promissory note, for the
sale or lease of a lot not exempt under 1710.5 through 1710.16 of this
chapter may be revoked by a purchaser within two years from the date of
signing the contract or agreement if the contract or agreement did not
include:
(1) A clear description of the lot in a form acceptable for recording
by the appropriate public official responsible for maintaining land
records in the jurisdiction in which the lot is located;
(2) A provision requiring the seller to notify a purchaser in writing
as to any default or breach of contract or agreement (including
promissory notes) for which the purchaser is responsible. The contract
must also contain a provision which allows at least 20 days from the
date the notice is received for the purchaser to remedy the default or
breach of contract or agreement;
(3) A provision which states that if a purchaser has paid at least
15% of the purchase price (excluding any interest owed) at the time of
default or breach of contract (including promissory notes) and loses
rights and interest in the lot due to that default, the purchaser may be
entitled to a refund. The provision must state that the seller must
refund to the purchaser whatever amount remains after: (i) Subtracting
15% of the purchase price of the lot (excluding interest owed) at the
time of the default or breach of contract or agreement, or (ii)
subtracting the amount of damages incurred by the seller due to the
default or breach of contract, whichever is greater.
(b) For the purposes of this section, (1) Purchase price means the
cash sales price of the lot shown on the contract; (2) Damages incurred
by the seller or lessor means actual damages resulting from the default
or breach as determined by the law of the jurisdiction governing the
contract. However, no elements of actual damage may be specified in the
contract or agreement. A liquidated damages clause not exceeding 15% of
the purchase price of the lot, excluding any interest owed, may be
specified.
(c) The contractual requirements of 1715.4 do not apply to the sale
of a lot for which, within 180 days after the signing of the sales
contract, the purchaser receives a warranty deed or, where warranty
deeds are not commonly used, its equivalent under state law.
(45 FR 40496, June 13, 1980; 45 FR 50735, July 31, 1980)
24 CFR 1715.5 Reimbursement.
If a contract or agreement (including a promissory note) is revoked
pursuant to 1715.2, 1715.3 or 1715.4, the purchaser shall be entitled
to all money paid under the contract or agreement. The purchaser must
tender to the developer an instrument conveying his or her rights and
interests in the lot and the lot itself in a condition which is
substantially similar to the condition in which they were conveyed or
purported to be conveyed to the purchaser. If the purchaser cannot
convey the lot in substantially similar condition, the developer may
subtract from the amount paid by the purchaser any diminished value in
the lot occasioned by the acts of the purchaser.
24 CFR 1715.5 Subpart B -- Sales Practices and Standards
24 CFR 1715.10 General.
Sales practices means any conduct or advertising by a developer or
its agents to induce a person to buy or lease a lot. This subpart
describes certain unlawful sales practices and provides standards to
illustrate what other sales practices are considered misleading in light
of certain circumstances in which they are made and within the context
of the overall offer and sale or lease.
24 CFR 1715.15 Unlawful sales practices -- Statutory provisions.
In selling, leasing or offering to sell or lease any lot in a
subdivision it is an unlawful sales practice for any developer or agent,
directly or indirectly, to:
(a) Employ any device, scheme or artifice to defraud.
(b) Obtain money or property by means of any untrue statement of a
material fact, or any omission to state a material fact necessary in
order to make the statements made (in light of the circumstances in
which they were made and within the context of the overall offer and
sale or lease) not misleading, with respect to any information pertinent
to the lot or the subdivision. It is not necessary for a developer to
say everything about the subdivision in each separate contact with the
purchaser, but what the developer does choose to say must not omit
important facts that would be needed so that a purchaser would not be
misled.
For example, a Property Report description of a lake or an
advertisement for ''lakeside property'' which omits to state that the
lake is dry for six months of the year would be misleading and a likely
violation.
(c) Engage in any transaction, practice or course of business which
operates or would operate as a fraud or deceit upon a purchaser.
(d) Fail to furnish a purchaser with a printed Property Report (when
the subdivision is required to be registered) in advance of the
purchaser's signing a contract or agreement.
(e) Use a Statement of Record or Property Report (when the
subdivision is required to be registered) which contains an untrue
statement of material fact or omits to state a material fact required to
be stated therein.
(f) Represent in any manner that roads, sewers, water, gas or
electric service, or recreational amenities will be provided or
completed by the developer unless there is a contractual provision
expressly obligating the developer to provide or complete such services
or amenities. Thus, if a developer advertises it will provide roads in
the subdivision or shows a purchaser a subdivision master plan and
indicates that the developer is providing the road system shown on that
plan, there must be a road completion covenant in the contract. If
there is no such covenant, the developer may not represent that it will
provide the roads.
(1) The contractual covenant to provide or complete the services or
amenities may be conditioned only upon grounds that are legally
supportable to establish impossibility of performance in the
jurisdiction where the services or amenities are being provided or
completed.
(2) Contingencies such as Acts of God, strikes, or material shortages
are recognized as permissible to defer completion of services or
amenities.
(3) In creating these contractual obligations developers have the
option to incorporate by reference the Property Report in effect at the
time of the sale or lease. If a developer chooses to incorporate the
Property Report by reference, the effective date of the Property Report
being referenced must be specified in the contract of sale or lease.
(g) Display or deliver to purchasers advertising and promotional
material which is inconsistent with information required to be disclosed
in the Property Report (when the subdivision is required to be
registered).
24 CFR 1715.20 Unlawful sales practices -- Regulatory provisions.
In selling, leasing or offering to sell or lease any lot in a
subdivision it is an unlawful sales practice for any developer or agent,
directly or indirectly, to:
(a) Give the Property Report to a purchaser along with other
materials when done in such a manner so as to conceal the Property
Report from the purchaser.
(b) Give a contract to a purchaser or encourage him to sign anything
before delivery of the Property Report.
(c) Refer to the Property Report or Offering Statement as anything
other than a Property Report or Offering Statement.
(d) Use any misleading practice, device or representation which would
deny a purchaser any cancellation or refund rights or privileges granted
the purchaser by the terms of a contract or any other document used by
the developer as a sales inducement.
(e) Refuse to deliver a Property Report to any person who exhibits an
interest in buying or leasing a lot in the subdivision and requests a
copy of the Property Report.
(f) Use a Property Report, note, contract, deed or other document
prepared in a language other than that in which the sales campaign is
conducted, unless an accurate translation is attached to the document.
(g) Deliberately fail to maintain a sufficient supply of restrictive
covenants and financial statements or to deliver a copy to a purchaser
upon request as required by 1710.109(f), 1710.112(d), 1710.209(g) and
1710.212(i).
(h) Use, as a sales inducement, any representation that any lot has
good investment potential or will increase in value unless it can be
established, in writing, that:
(1) Comparable lots or parcels in the subdivision have, in fact, been
resold by their owners on the open market at a profit, or;
(2) There is a factual basis for the represented future increase in
value and the factual basis is certain, and;
(3) The sales price of the offered lot does not already reflect the
anticipated increase in value due to any promised facilities or
amenities. The burden of establishing the relevancy of any comparable
sales and the certainty of the factual basis of the increase in value
shall rest upon the developer.
(i) Represent a lot as a homesite or building lot unless:
(1) Potable water is available at a reasonable cost;
(2) The lot is suitable for a septic tank operation or there is
reasonable assurance that the lot can be served by a central sewage
system;
(3) The lot is legally accessible; and
(4) The lot is free from periodic flooding.
24 CFR 1715.25 Misleading sales practices.
Generally, promotional statements or material will be judged on the
basis of the affirmative representations contained therein and the
reasonable inferences to be drawn therefrom, unless the contrary is
affirmatively stated or appears in promotional material, or unless
adequate safeguards have been provided by the seller to reasonably
guarantee the occurrence of the thing inferred. For example, when a lot
is represented as being sold by a warranty deed, the inference is that
the seller can and will convey fee simple title free and clear of all
liens, encumbrances, and defects except those which are disclosed in
writing to the prospective purchaser prior to conveyance. The following
advertising and promotional practices, while not all inclusive, are
considered misleading, and are used to evaluate a developer's or agent's
representations in determining possible violations of the Act or
Regulations. (In this section ''represent'' carries its common
meaning.)
(a) Proposed improvements. References to proposed improvements of
any land unless it is clearly indicated that (1) the improvements are
only proposed or (2) what the completion date is for the proposed
improvement.
(b) Off-Premises representations. Representing scenes or proposed
improvements other than those in the subdivision unless
(1) It is clearly stated that the scenes or improvements are not
related to the subdivision offered; or
(2) In the case of drawings that the scenes or improvements are
artists' renderings;
(3) If the areas or improvements shown are available to purchasers,
what the distance in road miles is to the scenes or improvements
represented.
(c) Land use representations. Representing uses to which the offered
land can be put unless the land can be put to such use without
unreasonable cost to the purchaser and unless no fact or circumstance
exists which would prohibit the immediate use of the land for its
represented use.
(d) Use of ''road'' and ''street''. Using the words ''road'' or
''street'' unless the type of road surface is disclosed. (All roads and
streets shown on subdivision maps are presumed to be of an all-weather
graded gravel quality or higher and are presumed to be traversable by
conventional automobile under all normal weather conditions unless
otherwise shown on the map.)
(e) Road access and use. Representing the existence of a road
easement or right-of-way unless the easement or right-of-way is
dedicated to the public, to property owners or to the appropriate
property owners association.
(f) Waterfront property. References to waterfront property, unless
the property being offered actually fronts on a body of water.
Representations which refer to ''canal'' or ''canals'' must state the
specific use to which such canal or canals can be put.
(g) Maps and distances. (1) The use of maps to show proximity to
other communities, unless the maps are drawn to scale and scale
included, or the specific road mileage appears in easily readable print.
(2) The use of the terms such as ''minutes away'', ''short
distance'', ''only miles'', or ''near'' or similar terms to indicate
distance unless the actual distance in road miles is used in conjunction
with such terms. Road miles will be measured from the approximate
geographical center of the subdivided lands to the approximate downtown
or geographical center of the community.
(h) Lot size. Representation of the size of a lot offered unless the
lot size represented is exclusive of all easements to which the lot may
be subject, except for those for providing utilities to the lot.
(i) ''Free'' lots. Representing lots as ''free'' if the prospective
purchaser is required to give any consideration whatsoever, offering
lots for ''closing costs only'' when the closing costs are substantially
more than customary, or when an additional lot must be purchased at a
higher price.
(j) Pre-development prices. References to pre-development sales at a
lower price because the land has not yet been developed unless there are
plans for development, and reasonable assurance is available that the
plans will be completed.
(k) False reports of lot sales. Repeatedly announcing that lots are
being sold or to make repetitive announcements of the same lot being
sold when in fact this is not the case.
(l) Guaranteed refund. Use of the word ''guarantee'' or phrase
''guaranteed refund'' or similar language implying a money-back
guarantee unless the refund is unconditional.
(m) Discount certificates. The use of discount certificates when in
fact there is no actual price reduction or when a discount certificate
is regularly used.
(n) Lot exchanges. Representations regarding property exchange
privileges unless any applicable conditions are clearly stated.
(o) Resale program. Making any representation that implies that the
developer or agent will resell or repurchase the property being offered
at some future time unless the developer or agent has an ongoing program
for doing so.
(p) Symbols for conditions. The use of asterisks or any other
reference symbol or oral parenthetical expression as a means of
contradicting or substantially changing any previously made statement or
as a means of obscuring material facts.
(q) Proposed public facilities. References to a proposed public
facility unless money has been budgeted for construction of the facility
and is available to the public authority having the responsibility of
construction, or unless disclosure of the existing facts concerning the
public facility is made.
(r) Non-profit or institutional name use. The use of names or trade
styles which imply that the developer is a nonprofit research
organization, public bureau, group, etc., when such is not the case.
24 CFR 1715.27 Fair housing.
(a) Pursuant to section 804(c) of Title VIII of the Civil Rights Act
of 1968, as amended, the Federal Fair Housing law, except as exempted by
Section 807, advertising shall not contain any indication of any
preference, limitation or discrimination based on race, color, religion,
sex or national origin.
(b) All advertising and sales presentations or representation must be
consistent with the Advertising Guidelines for Fair Housing published in
37 FR 6700 (4-1-72) and 40 FR 20079
(5-8-75).
(c) Whenever sales activity takes place which is subject to the Fair
Housing Law, the HUD approved Fair Housing Poster must be displayed.
24 CFR 1715.30 Persons to whom Subpart B is inapplicable.
Newspaper or periodical publishers, job printers, broadcasters, or
telecasters, or any of the employees thereof, are not subject to this
subpart unless the publishers, printers, broadcasters, or telecasters --
(a) Have actual knowledge of the falsity of the advertisement or
(b) Have any interest in the subdivision advertised or
(c) Also serve directly or indirectly as the advertising agent or
agency for the developer.
24 CFR 1715.30 Subpart C -- Advertising Disclaimers
24 CFR 1715.50 Advertising disclaimers; subdivisions registered and
effective with HUD.
(a) The following disclaimer statement shall be displayed below the
text of all printed material and literature used in connection with the
sale or lease of lots in a subdivision for which an effective Statement
or Record is on file with the Secretary. If the material or literature
consists of more than one page, it shall appear at the bottom of the
front page. The disclaimer statement shall be set in type of at least
ten point font.
Obtain the Property Report required by Federal law and read it before
signing anything. No Federal agency has judged the merits or value, if
any, of this property.
(b) If the advertising is of a classified type; is not more than
five inches long and not more than one column in print wide, the
disclaimer statement may be set in type of at least six point font.
(c) This disclaimer statement need not appear on billboards, on
normal size matchbook folders or business cards which are used in
advertising nor in advertising of a classified type which is less than
one column in print wide and is less than five inches long.
(d) A developer who is required by any state, or states, to display
an advertising disclaimer in the same location, or one of equal
prominence, as that of the federal disclaimer, may combine the wording
of the disclaimers. All of the wording of the federal disclaimer must
be included in the resulting combined disclaimer.
24 CFR 1715.50 Pt. 1720
24 CFR 1715.50 PART 1720 -- FORMAL PROCEDURES AND RULES OF PRACTICE
24 CFR 1715.50 Subpart A -- Rules and Rule Making
Sec.
1720.1 Scope of rules in this subpart.
1720.5 Initiation of rulemaking.
1720.10 Investigations and conferences.
1720.15 Notice.
1720.20 Promulgation of rules and regulations.
1720.25 Effective date of rules and regulations.
24 CFR 1715.50 Subpart B -- Filing Assistance
1720.30 Scope of this subpart.
1720.35 Prefiling assistance.
1720.40 Processing of filings.
24 CFR 1715.50 Subpart C -- Formal Investigations
1720.45 Scope of rules in this subpart.
1720.55 Signed statements in investigations.
1720.70 Subpoenas in investigations.
1720.75 Investigational proceedings.
1720.80 Rights of witnesses in investigations.
1720.85 Noncompliance.
1720.90 Disposition.
1720.95 Settlements and consent orders.
24 CFR 1715.50 Subpart D -- Adjudicatory Proceedings
1720.105 Scope of rules in this subpart.
1720.110 Applicability of sections of this subpart.
1720.115 Department representative.
1720.120 Qualifications for appearances.
1720.125 Public nature and timing of hearings.
1720.130 Restrictions on appearances as to former officers and
employees.
1720.135 Standards of practice.
1720.140 Administrative law judge, powers and duties.
1720.145 Disqualification of administrative law judge.
1720.150 Failure to comply with administrative law judge's
directions.
1720.155 Ex parte communications.
1720.160 Form and filing requirements.
1720.165 Time computation.
1720.170 Service.
1720.175 Intervention by interested persons.
1720.180 Settlements.
1720.205 Suspension notice under 1710.45(a) of this chapter.
1720.210 Hearings -- suspension notice pursuant to 1710.45(a) of
this chapter.
1720.215 Notice of proceedings pursuant to 1710.45(b)(1) of this
chapter.
1720.220 Hearings -- notice of proceedings pursuant to 1710.45(b)(1)
of this chapter.
1720.225 Suspension order under 1710.45(b)(2) of this chapter.
1720.230 Suspension order under 1710.45(b)(3) of this chapter.
1720.235 Hearings -- suspension orders issued pursuant to
1710.45(b)(2) and 1710.45(b)(3) of this chapter.
1720.236 Notice of proceedings to withdraw a State's certification
pursuant to 1710.505 of this chapter.
1720.237 Hearings -- Notice of proceedings pursuant to 1710.505 of
this chapter.
1720.238 Notices of proceedings to terminate exemptions pursuant to
1710.14, 1710.15 and 1710.16 of this chapter.
1720.239 Hearings -- Notice of proceedings pursuant to 1710.14,
1710.15 and 1710.16 of this chapter.
1720.240 Time for filing answer.
1720.245 Content of answer.
1720.250 Presumption of hearing request.
1720.255 Amendments and supplemental pleadings.
1720.260 Prehearing conferences.
1720.265 Reporting -- prehearing conferences.
1720.305 Motions -- filing requirements.
1720.310 Answers to motions.
1720.315 Motions for more definite statement.
1720.320 Motions for extension of time.
1720.325 Motions for dismissal.
1720.330 Motions to limit or quash.
1720.335 Consolidation.
1720.405 Depositions and discovery.
1720.410 Subpoenas and testificandum.
1720.415 Subpoenas duces tecum.
1720.420 Rulings on applications for compulsory process; appeals.
1720.425 Presentation and admission of evidence.
1720.430 Production of witnesses' statements.
1720.435 Official notice.
1720.505 Interlocutory review of administrative law judge's decision.
1720.510 Reporting and transcription.
1720.515 Corrections.
1720.520 Proposed findings, conclusions, and order.
1720.525 Decision of administrative law judge.
1720.530 Decision of administrative law judge -- content.
1720.535 Reopening of proceeding; termination of jurisdiction.
1720.605 Appeal from decision of administrative law judge.
1720.610 Answering brief.
1720.615 Reply brief.
1720.620 Length and form of briefs.
1720.625 Oral argument.
1720.630 Decision on appeal or review.
1720.635 Appeals officer.
Authority: Section 1419, Interstate Land Sales Disclosure Act (15
U.S.C. 1718); sec. 7(d), Department of Housing and Urban Development
Act (42 U.S.C. 3535(d))
Source: 43 FR 29496, July 7, 1978, unless otherwise noted.
24 CFR 1715.50 Subpart A -- Rules and Rulemaking
24 CFR 1720.1 Scope of rules in this subpart.
The rules in this subpart apply to and govern procedures for the
promulgation of rules and regulations under the Act. The rules in this
subpart do not apply to interpretative rules, general statements of
policy, rules of organization procedure or practice or in any situation
in which the Secretary for good cause finds (and incorporates the
findings and brief statement of the reasons therefor in the rules
issued) that notice and public procedure thereon are impracticable,
unnecessary or contrary to the public interest.
24 CFR 1720.5 Initiation of rulemaking.
(a) The issuance, amendment or repeal of any rule or regulation may
be proposed upon the initiative of the Secretary or upon the petition of
any interested person showing reasonable grounds therefor.
(b) Petitions for rulemaking by interested persons filed under this
section:
(1) Shall be identified as a petition for rulemaking under this
subpart;
(2) Shall explain the interest of the petitioner in the action
requested;
(3) Shall set forth the text or substance of the rule or amemdment
proposed or specify the rule that the petitioner seeks to have repealed,
as the case may be;
(4) Shall contain any information and arguments available to the
petitioner to support the action sought; and
(5) Shall be filed with the Rules Docket Clerk, Office of General
Counsel, Department of Housing and Urban Development, Room 5218, 451 7th
Street SW., Washington, DC 20410.
(c) The Secretary shall respond to a petition submitted under this
section within 180 days of receipt thereof, except that this time limit
may be exceeded for good cause found and communicated to the petitioner.
The Secretary's normal response shall be to grant or deny the petition
but alternatively, the Secretary may schedule a public hearing or other
appropriate proceeding prior to the granting or denial of a petition.
If the Secretary grants the petition, the Secretary shall publish a
proposed rule in accordance with the petition and a copy of the proposed
rule shall be furnished to the petitioner. If the Secretary denies the
petition, the Secretary shall notify the petitioner within 7 days after
such denial.
24 CFR 1720.10 Investigations and conferences.
(a) In connection with a rulemaking proceeding, the Secretary may
conduct such investigations, make such studies and hold such conferences
as are necessary. All or any part of such investigations may be
conducted under the provisions of subpart C of this part.
(b) At any such conferences, interested persons may appear to express
views and suggest amendments relative to proposed rules and regulations.
24 CFR 1720.15 Notice.
General notice of proposed rulemaking shall be published in the
Federal Register and, to the extent practicable, otherwise made
available to interested persons. Such notice shall state the time,
place, and nature of public hearings, if any; the authority under which
the rule or regulation is proposed; either the terms or substance of
the proposed rule or regulation or a description of the subjects and
issues involved; and the manner in which interested persons shall be
afforded the opportunity to participate in the rulemaking. If the
rulemaking was instituted pursuant to petition, a copy of the notice
shall be served on the petitioner.
24 CFR 1720.20 Promulgation of rules and regulations.
The Secretary, after consideration of all relevant matters of fact,
law, policy, and discretion, including all relevant matters presented by
interested persons in the rulemaking proceedings, shall adopt and
publish in the Federal Register an appropriate rule or regulation
together with a concise general statement of its basis and purpose and
any necessary findings; or the Secretary shall give other appropriate
public notice of disposition of the rule- making proceeding.
24 CFR 1720.25 Effective date of rules and regulations.
The effective date of any rule or regulation or of an amendment,
suspension, or repeal of any rule or regulation shall be specified in a
notice published in the Federal Register. Such date shall not be less
than 30 days after the date of such publication unless the Secretary
specifies an earlier effective date for good cause found and published
with the rule or regulation.
24 CFR 1720.25 Subpart B -- Filing Assistance
24 CFR 1720.30 Scope of this subpart.
The rules in this subpart apply to and govern procedures under which
developers may obtain prefiling assistance and be notified of and
permitted to correct deficiencies in the Statement of Record.
24 CFR 1720.35 Prefiling assistance.
Persons intending to file with the Office of Interstate Land Sales
Registration may receive advice of a general nature as to the
preparation of the filing including information as to proper format to
be used and the scope of the items to be included in the format.
Inquiries and requests for informal discussions with staff members
should be directed to the Administrator, Office of Interstate Land Sales
Registration, Department of Housing and Urban Development, 451 Seventh
Street SW., Washington, DC 20410.
24 CFR 1720.40 Processing of filings.
(a) Statements of Record and accompanying filing fees will be
received on behalf of the Secretary by the Administrator, Office of
Interstate Land Sales Registration, for determination of: (1)
Completeness of the statement, (2) adequacy of the filing fee and (3)
adequacy of disclosure. Where it appears that all three criteria are
satisfied and it is otherwise practicable, acceleration of the
effectiveness of the Statement of Record will normally be granted.
(b) Filings intended as Statements of Record but which do not comply
in form with 1710.105 and 1710.120 of this chapter, whichever is
applicable, and Statements of Record accompanied by inadequate filing
fees will not be effective to accomplish any purpose under the Act. At
the discretion of the Administrator, such filings and any moneys
accompanying them may be immediately returned to the sender or after
notification may be held pending the sender's appropriate response.
(c) Persons filing incomplete or inaccurate Statements of Record will
be notified of the deficiencies therein by the Suspension Notice
procedure described in 1710.45(a) of this chapter.
24 CFR 1720.40 Subpart C -- Formal Investigations
24 CFR 1720.45 Scope of rules in this subpart.
(a) The rules in this subpart apply to and govern procedures for the
conduct of formal inquiries and investigations undertaken by the
Secretary.
(b) The Secretary may make inquiries and investigations to determine
whether any person has violated or is about to violate any provision of
the Act or the rules and regulations, or to aid in the enforcement of
the Act, or in prescribing rules and regulations thereunder, or in
securing information to serve as a basis for recommending further
legislation. The Secretary shall have the authority to administer oaths
and affirmations in any matter under investigation.
24 CFR 1720.55 Signed statements in investigations.
In connection with a formal investigation or inquiry involving an
alleged or suspected violation or threatened violation of the Act or
rules and regulations, the Secretary may require or permit any person to
file a signed statement setting forth facts and circumstances known to
such person and relevant to the investigation or inquiry.
24 CFR 1720.70 Subpoenas in investigations.
(a) The Secretary may issue subpoenas relating to any matter under
investigation for any or all of the following purposes:
(1) Requiring testimony to be taken by interrogatories.
(2) Requiring the attendance and testimony of witnesses at a specific
time and place.
(3) Requiring access to, examination of and the right to copy
documents, books, records, and papers.
(4) Requiring the production of documents, books, records, and papers
at a specified time and place.
(b) A subpoenaed person may petition the Administrator to modify or
wirthdraw a subpoena by filing the petition within 10 days after service
of the subpoena. The petition may be in letter form but must set forth
the facts and the laws upon which the petition is based.
24 CFR 1720.75 Investigational proceedings.
(a) For the purpose of hearing the testimony of witnesses and
receiving documents and other data relating to any subject under
investigation, investigational proceedings may be conducted in the
course of any investigation including rulemaking proceedings under
subpart A of this part.
(b) Investigational proceedings shall be presided over by the
Secretary and shall be stenographically or mechanically reported. A
transcript shall be a part of the record of the investigation.
(c) Unless the Secretary determines otherwise, investigational
proceedings shall be public.
24 CFR 1720.80 Rights of witnesses in investigations.
(a) Any person compelled to testify or to submit data in connection
with any investigational proceedings shall be entitled to retain a copy
or, on payment of lawfully prescribed costs, procure copies of any data
submitted and testimony as stenographically or mechanically reported,
except that in a nonpublic proceeding, the witness may for good cause be
limited to inspection of the official transcript of the testimony.
(b) Any witness compelled to appear in person in an investigational
proceeding may be accompanied, represented, and advised by counsel as
follows:
(1) A witness may be advised by counsel, in confidence, upon the
initiative of either the counsel or of the witness, with respect to any
question asked of the client; if the witness is advised to refuse to
answer a question, counsel may briefly state on the record that the
client has been advised not to answer the question and the legal grounds
for the refusal.
(2) Where it is claimed that the testimony or other evidence sought
from a witness is outside the scope of the investigation, or it is
claimed that the witness is privileged to refuse to answer a question or
to produce other evidence, counsel for the witness may object on the
record to the question or requirement and may state briefly and
precisely the grounds therefor.
(3) Objections made under the rules in this subpart will be
continuing objections throughout the course of the proceeding, and
repetitious or cumulative statement of an objection or of the grounds
therefor is unnecessary and impermissible.
(4) Counsel for a witness may not, for any purpose or to any extent
not allowed by paragraphs (b)(1) and (2) of this section, interrupt the
examination of the witness by making any objections or statements on the
record. Petitions challenging the authority of the Secretary to conduct
the investigation or the sufficiency or the legality of the subpoena
must have been presented to the Secretary pursuant to 1720.70(b).
Copies of such petitions may be filed with the presiding official at the
proceeding as part of the investigation record, but no argument in
support thereof shall be allowed.
(5) Upon completion of the examination of a witness, counsel for the
witness may request that the presiding official permit the witness to
clarify on the record any answers in order that specified points of
ambiguity, equivocation, or incompleteness may be corrected. The
granting or denial of such request in whole or in part, shall be within
the sole discretion of the presiding official.
(6) The presiding official shall take all necessary action to
regulate the course of the proceeding to avoid delay and to prevent or
restrain disorderly, dilatory, obstructionist or contumacious conduct or
contemptuous language. Such official shall, for reasons stated on the
record, immediately report to the Secretary any instances where an
attorney or witness has failed or refused to comply with directions,
lawful rules, regulations or orders in the course of the proceedings or
has engaged in disorderly, dilatory obstructionist, or contumacious
conduct or contemptuous language. The Secretary may exclude the
attorney or witness from the proceeding or may take any action deemed
appropriate under 1720.85 of this part.
24 CFR 1720.85 Noncompliance.
Failure to comply with the Secretary's investigational process may
result in action pursuant to section 1407(e) of the Act and
1710.45(b)(2) of this chapter or section 1415(d) of the Act.
24 CFR 1720.90 Disposition.
(a) When investigation by the Secretary indicates that further action
is warranted, the Secretary may seek an injunction under section 1415(a)
of the Act, issue a Notice of Proceedings under section 1407(d) of the
Act and 1710.45(b)(1) of this chapter or issue a suspension order under
section 1407(c) of the Act and 1710.45(b)(3) of this chapter.
(b) The Secretary may publish or otherwise divulge information
concerning any violation of the Act or the rules and regulations.
(c) When an investigation discloses that corrective action is not
necessary or warranted in the public interest for the protection of
purchasers or lessees, the investigational file will be closed. The
matter may at any time thereafter be reinvestigated if circumstances so
warrant.
24 CFR 1720.95 Settlements and consent orders.
(a) Offer of Settlement. At any time during a proceeding, parties
may be afforded an opportunity to submit to the Secretary a written
proposal for disposition of the matter in the form of a settlement
offer.
(b) Consent Orders. When the Secretary determines that a violation
of the Act or regulations has taken place and the public interest will
be fully safeguarded, the Secretary may enter into a consent order.
Such order will be in lieu of further administrative proceedings or
court actions pursuant to the Secretary's authority. Such orders may
provide, among other things, for the holding in abeyance of any further
proceedings by the Secretary and the cessation of developer actions,
notification to purchasers or other actions which are in the public
interest and for the protection of purchasers.
(c) When the Secretary rejects an offer of settlement, or
negotiations toward a consent order are unsuccessful, the offer of
settlement or any proposed consent order shall be deemed a nullity, and
any documents or other terms relating thereto shall not be used in
support or denial of any allegations in a subsequent proceeding.
24 CFR 1720.95 Subpart D -- Adjudicatory Proceedings
24 CFR 1720.95 General Provisions
24 CFR 1720.105 Scope of rules in this subpart.
The rules in this subpart are applicable to adjudicative proceedings
which involve a hearing or opportunity for a hearing under the
Interstate Land Sales Full Disclosure Act.
24 CFR 1720.110 Applicability of sections of this subpart.
Succeeding sections of this subpart shall apply to all adjudicatory
hearings conducted by OILSR unless specifically limited in applicability
by a particular section.
24 CFR 1720.115 Department representative.
In each case heard before an administrative law judge pursuant to
this part, the Department shall be represented by a Department hearing
attorney. The General Counsel shall designate one or more attorneys to
act as Department hearing attorneys.
24 CFR 1720.120 Qualification for appearances.
(a) Members of the bar of a Federal Court or of the highest court of
any state or of the United States are eligible to practice before the
Secretary. No register of attorneys will be maintained.
(b) Any individual or member of a partnership involved in any
proceeding or investigation may appear on personal behalf or that of the
partnership upon adequate identification. A corporation or association
may be represented by a bona fide officer thereof upon a showing of
adequate authorization.
(c) A person shall not be represented except as stated in paragraphs
(a) and (b) of this section unless otherwise permitted.
24 CFR 1720.125 Public nature and timing of hearings.
(a) All hearings in adjudicative proceedings shall be public.
(b) Hearings shall proceed with all reasonable speed and insofar as
practicable, shall be held at one place and shall continue without
recess or suspension until concluded. The administrative law judge
shall have the authority to order brief intervals of the sort normally
involved in judicial proceedings and, in unusual and exceptional
circumstances for good cause stated on the record, shall have the
authority to order hearings at more than one place and to order recesses
to permit further gathering of evidence or settlement discussions.
24 CFR 1720.130 Restrictions on appearances as to former officers and
employees.
(a) Except as specifically authorized by the Secretary, no former
officer or employee of the Department of Housing and Urban Development
shall appear as attorney or counsel or otherwise participate through any
form of professional consultation or assistance in any proceeding or
investigation, formal or informal, which was pending in any manner in
the Office of Interstate Land Sales Registration while such former
officer or employee served with the Department of Housing and Urban
Development.
(b) In cases to which paragraph (a) of this section is applicable, a
former officer or employee of the Department of Housing and Urban
Development may request authorization to appear or participate in a
proceeding or investigation by filing with the Secretary a written
application disclosing the following relevant information:
(1) The nature and extent of the former officer's or employee's
participation in, knowledge of, and connection with the proceeding or
investigation during service with the Department of Housing and Urban
Development;
(2) Whether the files of the proceeding or investigation came to the
former officer or employee's attention;
(3) Whether the former officer or employee was employed in the same
office, division, or administrative unit in which the proceeding or
investigation is or has been pending;
(4) Whether the former officer or employee worked directly or in
close association with the Office of Interstate Land Sales Registration
personnel assigned to the proceeding or investigation;
(5) Whether during service with the Department of Housing and Urban
Development the former officer or employee was engaged in any matter
concerning the individual, company or industry in the proceeding or
investigation.
(c) The requested authorization will not be given in any case: (1)
Where it appears that the former officer or employee during service with
the Department of Housing and Urban Development participated personally
and substantially in the proceeding or investigation, or (2) where the
application is filed within one (1) year after termination of the former
officer's or employee's service with the Department of Housing and Urban
Development and it appears that within a period of one (1) year prior to
the termination of service the proceeding or investigation was within
the official responsibility of the former officer or employee. In other
cases, authorization will be given where the Secretary is satisfied that
the appearance or participation will not involve any actual conflict of
interest or impropriety thereof.
(d) In any case in which a former officer or employee of the
Department of Housing and Urban Development is prohibited under this
section from appearing or participating in a proceeding or
investigation, any partner or legal or business associate of such former
officer or employee shall likewise be so prohibited unless:
(1) Such partner or legal or business associate files with the
Secretary an affidavit that in connection with the matter the services
of the disqualified former officer or employee will not be utilized in
any respect and the matter will not be discussed with the former officer
or employee in any manner, and that the disqualified former officer or
employee shall not share, directly or indirectly, in any fees or
retainers received for services rendered in connection with such
proceeding or investigation;
(2) The disqualified former officer or employee files an affidavit
agreeing not to participate in the matter in any manner, and not to
discuss it with any person involved in the matter; and
(3) Upon the basis of such affidavits, the Secretary determines that
the appearance or participation by the partner or associate would not
involve any actual conflict of interest or impropriety thereof.
24 CFR 1720.135 Standards of practice.
(a) Attorneys shall conform to the standards of professional and
ethical conduct required by practitioners in the courts of the United
States and by the bars of which the attorneys are members.
(b) The privilege of appearing or practicing may be denied,
temporarily or permanently, to any person who is found after notice and
opportunity for hearing which at the person's request or in the
discretion of the Secretary may be private, and for presentation of oral
argument in the matter: (1) Not to possess the requisite qualifications
to represent others, or (2) to be lacking in character or integrity, or
(3) to have engaged in unethical or improper professional conduct.
(c) Contemptuous conduct at any hearing shall be grounds for summary
exclusion from said hearing for the duration of the hearing.
24 CFR 1720.140 Administrative law judge, powers and duties.
(a) Hearings in adjudicative proceedings shall be presided over by a
duly qualified administrative law judge who shall be designated by the
Secretary in a notice to the parties in the proceeding.
(b) Administrative law judges shall have the duty to conduct fair and
impartial hearings, to take all necessary action to avoid delay in the
disposition of proceedings and to maintain order. They shall have all
powers necessary to those ends including all powers granted under 5
U.S.C. 556(c), and also power including but not limited to the
following:
(1) To administer oaths and affirmations.
(2) To issue subpoenas and orders requiring access.
(3) To take or to cause depositions to be taken.
(4) To rule upon offers of proof and receive evidence.
(5) To regulate the course of the hearings and the conduct of the
parties and their counsel.
(6) To hold conferences for simplification and clarification of the
issues or any other purpose.
(7) To consider and rule upon as justice may require, all procedural
and other motions appropriate in an adjudicative proceeding, including
motions to open defaults.
(8) To make and file decisions.
(9) To certify question to a Departmental appeals officer.
(10) To take any action authorized by the rules in this part or other
appropriate action.
24 CFR 1720.145 Disqualification of administrative law judge.
(a) When an administrative law judge feels disqualified from
presiding in a particular proceeding, the administrative law judge shall
withdraw therefrom by notice on the record and shall notify the
Secretary of such withdrawal.
(b) Whenever any party believes that the administrative law judge
should be disqualified from presiding, or continuing to preside in a
particular proceeding, such party may file with the administrative law
judge a motion that the administrative law judge be disqualified and
removed. Such motion shall be supported by affidavits setting forth the
alleged grounds for disqualification. If the administrative law judge
does not agree to disqualification, the hearing shall proceed, and the
question of fair hearing and due process may be raised on appeal.
24 CFR 1720.150 Failure to comply with administrative law judge's
directions.
Any party who refuses or fails to comply with a lawfully issued order
or direction of an administrative law judge may be considered to be in
contempt of the Secretary. The circumstances of any such neglect,
refusal or failure, together with a recommendation for appropriate
action, shall be promptly certified by the administrative law judge to
the Secretary who may make such orders in regard thereto as the
circumstances may warrant.
24 CFR 1720.155 Ex parte communications.
(a) No person shall communicate with an administrative law judge or
an appeals officer either directly or indirectly concerning any pending
proceeding unless prior to or simultaneously with such communication its
contents are disclosed in detail to all persons interested in the
proceeding; nor shall an adminstrative law judge or appeals officer
request or consider any such unauthorized ex parte communication. This
prohibition shall not apply to a simple request for information
respecting the status of the proceeding, nor to any ex parte
communication expressly authorized by these rules.
(b) Any administrative law judge or appeals officer, who receives an
ex parte communication which the judge knows or has reason to believe is
unauthorized, shall promptly place the communication, or its substance,
in the public file and shall inform all persons interested in the
proceeding of its existence and general contents. Facts or arguments so
communicated shall not be taken into account in deciding any matter in
issue unless such facts or arguments shall be brought properly before
the administrative law judge.
(c) Opportunity to answer allegations or contentions contained in an
unauthorized ex parte communication may be afforded any interested
person upon motion for leave to do so, wherever such leave will operate
to assure a fair hearing or decision.
24 CFR 1720.160 Form and filing requirements.
(a) Filing. Except as otherwise permitted, an original and three
copies of all documents shall be filed with the Docket Clerk for
Administrative Proceedings, Room 10278, Department of Housing and Urban
Development, Washington, DC 20410, on official work days between the
hours of 8:45 a.m. and 5:15 p.m.
(b) Title. Documents shall show clearly the title of the action, the
docket number, and OILSR file number in connection with which they are
filed.
(c) Form. Except as otherwise permitted, all documents shall be
printed, typewritten, or otherwise processed in clear legible form and
on good unglazed paper.
24 CFR 1720.165 Time computation.
Computation of any period of time prescribed or allowed by the rules
and regulations in this part, or by order of the Secretary or of an
administrative law judge, shall begin with the first business day
following that on which the act, event, development or default
initiating such period of time shall have occurred. When the last day
of the period so computed is a Saturday, Sunday, or national holiday, or
other day on which the Department of Housing and Urban Development is
closed, the period shall run until the end of the next following
business day. Except when any prescribed or allowed period of time is 7
days or less, each of the Saturdays, Sundays, and national holidays
shall be included in the computation of the prescribed or allowed
period.
24 CFR 1720.170 Service.
Notices, orders, processes, determinations and other documents
required or permitted under these rules may be served as follows:
(a) Upon the Secretary. By personal delivery at the office, or by
registered or certified mail addressed to the office of any of the
following officials in the Office of Interstate Land Sales Registration:
Administrator; Associate Administrator; Director, Office of
Interstate Land Sales Registration: Provided, however, That during the
pendency of a proceeding before the Secretary all pleadings, motions,
notices or other documents shall be served in accordance with the terms
of 1720.160.
(b) Upon any other person. By delivery of a copy of the documents to
the person to be served wherever the person may be found, or by leaving
such copy at the person's office or place of business with a person
apparently in charge thereof, or, if there is no one in charge or if the
office is closed or if the person has no office, by leaving a copy at
the person's residence with some person of suitable age and discretion
then residing therein, or sending a copy by registered or certified
mail, return receipt requested, addressed to the person at the person's
last known residence, or at the person's last known principal office or
place of business. If the address of the residence, principal office,
or place of business is unknown and cannot with due diligence be
ascertained, service may be made by mail to any office at which the
person to be served is known to be employed or by publication in the
Federal Register.
(c) Service on corporations, partnerships, associations, other
entities. Service may be made upon any corporation, partnership,
business association or other entity by serving any officer, director,
partner, trustee, agent for service or managing agent thereof. A
managing agent, within the meaning of this subsection, is an agent
having the principal managerial responsibility in connection with the
regular operation of a distinct office or activity of the enterprise.
(d) Service through attorney. When a person other than the Secretary
and the Secretary's staff shall have appeared of record in a proceeding,
generally or specially, by attorney, all subsequent services of notices,
orders, processes, and other documents in connection with such
proceeding may be made upon such person by serving the attorney, except
that subpoenas and other orders by which such person may be brought in
contempt shall be served upon the person by one of the methods described
in paragraphs (b) and (c) of this section. In any case, a copy of any
document served on a client shall be sent to any attorney who has
entered an appearance for that client. In such situations, it shall be
sufficient proof of service to show that either the client or the
attorney has received a copy of the document.
(e) Proof of service. Proof of service shall not be required unless
the fact of service is reasonably put in issue by appropriate motion or
objection on the part of the person allegedly served or other party. In
such cases, service may be established by written admission signed by or
on behalf of the person to be served, or may be established prima facie
by affidavit or certificate of service or mailing, as appropriate. When
service is by registered or certified mail, it is complete upon delivery
of the document by the post office.
24 CFR 1720.175 Intervention by interested persons.
(a) The administrative law judge, upon timely petition in writing and
for good cause shown, and if deemed to be in the public interest, may
permit any person to participate by intervention in the proceeding. The
petition shall state:
(1) The petitioner's relationship to and interest in the matters
contained in the proceeding;
(2) The petitioner's position with respect to each specific issue
upon which the petitioner proposes to intervene, and the facts which the
petitioner proposes to adduce in support of each such position; and
(3) An assent to exercise of jurisdiction by the Department with
respect to the petitioner.
(b) The administrative law judge shall determine the propriety of
such intervention and the extent to which such intervener may
participate, basing such determination upon applicable law, the
directness and substantiality of the petitioner's interest in the
proceeding and the effect upon the proceeding of allowing such
participation.
24 CFR 1720.180 Settlements.
Parties may propose in writing, at any time during the course of a
proceeding, offers of settlement which shall be submitted to the
Secretary. If determined to be appropriate, the party making the offer
may be given an opportunity to make an oral presentation in support of
such offer. If an offer of settlement is rejected, the party making the
offer shall be so notified and the offer shall be deemed withdrawn and
shall not constitute a part of the record in the proceeding. Final
acceptance by the Secretary of any offer of settlement will terminate
any proceeding related thereto upon notification to the administrative
law judge or the appeals officer.
24 CFR 1720.180 Pleadings
24 CFR 1720.205 Suspension notice under 1710.45(a) of this chapter.
A suspension pursuant to 1710.45(a) of this chapter shall be
effected by service of a suspension notice which shall contain:
(a) An identification of the filing to which the notice applies.
(b) A specification of the deficiencies of form, disclosure,
accuracy, documentation or fee tender which constitute the grounds under
1710.45(a) of this chapter, of the suspension, and of the additional or
corrective procedure, information, documentation, or tender which will
satisfy the Secretary's requirements.
(c) A notice of the hearing rights of the developer under 1720.210
and of the procedures for invoking those rights.
(d) A notice that, unless otherwise ordered, the suspension shall
remain in effect until 30 days after the developer cures the specified
deficiencies as required by the notice.
24 CFR 1720.210 Hearings -- suspension notice pursuant to 1710.45(a)
of this chapter.
(a) A developer, upon receipt of a suspension notice issued pursuant
to 1710.45(a) of this chapter, may obtain a hearing by filing a written
request in accordance with the instructions regarding such request
contained in the suspension notice. Such a request must be filed within
15 days of receipt of the suspension notice and must be accompanied by
an answer and 3 copies thereof signed by the respondent or the
respondent's attorney conforming to the requirements of 1720.245.
Filing of a motion for a more definite statement pursuant to 1720.315
shall alter the period of time to request a hearing in accordance with
1720.240.
(b) When a hearing is requested pursuant to paragraph (a) of this
section, such hearing shall be held within 20 days of receipt of the
request. The time and place for hearing shall be fixed with due regard
for the public interest and the convenience and necessity of the parties
or their representatives.
(c) A request for hearing filed pursuant to paragraph (a) of this
section shall not interrupt or annul the effectiveness of the suspension
notice, and suspension of the effective date of the Statement or
amendment shall continue until vacated by order of the Secretary or
administrative law judge. Except in cases in which the developer shall
waive or withdraw the request for such hearing, or shall fail to pursue
the same by appropriate appearance at a hearing duly scheduled, noticed
and convened, the suspended filing shall be reinstated in the event of
failure of the Secretary to schedule, give notice of or hold a
duly-requested hearing within the time specified in paragraph (b) of
this section, or in the event of a finding that the Secretary has failed
to support at such hearing the propriety of the suspension with respect
to the material issues of law and fact raised by the answer. Such
reinstatement shall be effective on the date on which the filing would
have become effective had no notice of suspension been issued with
respect to it.
(d) If there is an outstanding suspension notice under 1710.45(a)
with respect to the same matter for which a suspension order under
1710.45(b)(3) is issued, the notice and order shall be consolidated for
the purposes of hearing. In the event that allegations upon which the
suspension notice and suspension order are based are identical, only one
answer need be filed.
24 CFR 1720.215 Notice of proceedings pursuant to 1710.45(b)(1) of
this chapter.
A proceeding pursuant to 1710.45(b)(1) of this chapter is commenced
by issuance and service of a notice which shall contain:
(a) A clear and accurate identification of the filing or filings to
which the notice relates.
(b) A clear and concise statement of material facts, sufficient to
inform the respondent with reasonable definiteness of the statements,
omissions, conduct, circumstances or practices alleged to constitute the
grounds for the proposed suspension order under 1710.45(b)(1) of this
chapter.
(c) A notice of hearing rights of the developer under 1720.220 and
of the procedures for invoking those rights.
(d) Designation of the administrative law judge appointed to preside
over pre-hearing procedures and over the hearings.
(e) A notice that failure to file an answer or motion as provided
under 1720.240 will result in an order suspending the Statement of
Record.
24 CFR 1720.220 Hearings -- notice of proceedings pursuant to
1710.45(b)(1) of this chapter.
(a) A developer, upon receipt of a notice of proceedings issued
pursuant to 1710.45(b)(1) of this chapter, may obtain a hearing by
filing a written request in accordance with the instructions regarding
such request contained in the notice of proceedings. Such a request
must be filed within 15 days of receipt of the notice of proceedings and
must be accompanied by an answer conforming to the requirements of
1720.245. Filing of a motion for a more definite statement pursuant to
1720.315 shall alter the period of time to request a hearing in
accordance with 1720.240.
(b) When a hearing is requested pursuant to paragraph (a) of this
section, such hearing shall be held within 45 days of receipt of the
request by the Secretary unless it is determined that it is not in the
public interest. The time and place for hearing shall be fixed with due
regard for the public interest and the convenience and necessity of the
parties or their representatives.
(c) Failure to answer within the time allowed by 1720.140 or failure
of a developer to appear at a hearing duly scheduled shall result in an
appropriate order under 1710.45(b)(1) of this chapter suspending the
statement of record. Such order shall be effective as of the date of
service or receipt.
24 CFR 1720.225 Suspension order under 1710.45(b)(2) of this chapter.
A suspension pursuant to 1710.45(b)(2) of this chapter shall be
effected by service of a suspension order which shall contain:
(a) An identification of the filing to which the order applies.
(b) Bases for issuance of order.
(c) A notice of the hearing rights of the developer under 1720.235
the procedures for invoking those rights.
(d) A statement that the order shall remain in effect until the
developer has complied with the Secretary's requirements.
24 CFR 1720.230 Suspension order under 1710.45(b)(3) of this chapter.
A suspension pursuant to paragraph (b)(3) of 1710.45 of this chapter
shall be effected by service of a suspension order which shall contain:
(a) An identification of the filing to which the order applies.
(b) An identification of the amendment to the filing which generated
the order.
(c) A statement that the issuance of the order is necessary or
appropriate in the public interest or for the protection of purchasers.
(d) A statement that the order shall remain in effect until the
amendment becomes effective.
(e) A notice of the hearing rights of the developer under 1720.235
and of the procedure for invoking those rights.
24 CFR 1720.235 Hearings -- suspension orders issued pursuant to
1710.45(b)(2) and 1710.45(b)(3) of this chapter.
(a) A developer, upon receipt of a suspension order issued pursuant
to 1710.45(b)(2) or 1710.45(b)(3) of this chapter, may obtain a
hearing by filing a written request in accordance with the instructions
regarding such request contained in the suspension order. Such request
must be filed within 15 days of receipt of the suspension order and must
be accompanied by an answer and 3 copies thereof signed by the
respondent or respondent's attorney conforming to the requirements of
1720.245. Filing of a motion for a more definite statement pursuant to
1720.315 shall alter the period of time to request a hearing in
accordance with 1720.240.
(b) When a hearing is requested pursuant to paragraph (a) of this
section, such hearing shall be held within 20 days of receipt of the
request. The time and place for hearing shall be fixed with due regard
for the public interest and the convenience and necessity of the parties
or their representatives.
(c) A request for hearing filed pursuant to paragraph (a) of this
section shall not interrupt or annul the effectiveness of the suspension
order.
24 CFR 1720.236 Notice of proceedings to withdraw a State's
certification pursuant to 1710.505 of this chapter.
A proceeding pursuant to 1710.505 of this chapter is commenced by
issuance and service of a notice which shall contain:
(a) An identification of the State certification to which the notice
applies.
(b) A clear and concise statement of material facts, sufficient to
inform the respondent with reasonable definiteness of the basis for the
Secretary's determination, pursuant to 1710.505, that the State's laws,
regulations and the administration thereof, taken as a whole, no longer
meet the requirements of 1710. 501.
(c) A notice of hearing rights of the State under 1720.237 and of
the procedures for invoking those rights.
(d) A notice that failure to file an answer or motion as provided
under 1720.240 will result in an order suspending the State's
certification.
(45 FR 40499, June 13, 1980)
24 CFR 1720.237 Hearings -- Notice of proceedings pursuant to 1710.505
of this chapter.
(a) A State, upon receipt of a notice of proceedings issued pursuant
to 1710.505 of this chapter, may obtain a hearing by filing a written
request in accordance with the instructions regarding such request
contained in the notice of proceedings. Such request must be filed
within 15 days of receipt of the notice of proceedings and must be
accompanied by an answer conforming to the requirements of 1720.245.
Filing of a motion for a more definite statement pursuant to 1720.315
shall alter the period of time to request a hearing in accordance with
1720.240.
(b) When a hearing is requested pursuant to paragraph (a) of this
section, such hearing shall be held within 45 days of receipt of this
request. The time and place for the hearing shall be fixed with due
regard for the public interest and the convenience and necessity of the
parties or their representatives.
(c) Failure to answer within the time allowed by 1720.240 or failure
to appear at a hearing duly scheduled shall result in an appropriate
order under 1710.505 of this chapter withdrawing the State's
certification. Such order shall be effective as of the date of service
or receipt.
(45 FR 40499, June 13, 1980)
24 CFR 1720.238 Notices of proceedings to terminate exemptions pursuant
to 1710.14, 1710.15 and 1710.16 of this chapter.
A proceeding to terminate a self-determining exemption under 1710.14
or an exemption order under 1710.15 or 1710.16 is commenced by
issuance and service of a notice which shall contain:
(a) In the case of an exemption under 1710.14, an identification of
the developer and subdivision to which this notice applies. In the case
of an exemption under either 1710.15 or 1710.16, an identification of
the exemption order to which the notice applies.
(b) A clear and concise statement of material facts, sufficient to
inform the respondent with reasonable definiteness of the basis for the
Secretary's determination that further exemption from the registration
and disclosure requirements is not in the public interest or that the
sales or leases do not meet the requirements for exemption, or both.
(c) A notice of hearing rights of the respondent under 1720.239 and
of the procedures for invoking those rights.
(d) A notice that failure to file an answer or motion as provided
under 1720.240 will result, in the case of a notice issued under
1710.14, an order terminating eligibility for the exemption, or, in the
case of a notice issued under either 1710.15 or 1710.16, an order
terminating the exemption order.
(45 FR 40499, June 13, 1980, as amended at 54 FR 40868, Oct. 4, 1989,
and 54 FR 47768, Nov. 17, 1989)
24 CFR 1720.239 Hearings -- Notice of proceedings pursuant to
1710.14, 1710.15 and 1710.16 of this chapter.
(a) A developer, upon receipt of a notice of proceedings issued under
1710.14, 1710.15 and 1710.16 of this chapter, may obtain a hearing by
filing a written request contained in the notice of proceedings. The
request must be filed within 15 days of receipt of the notice of
proceedings and must be accompanied by an answer conforming to the
requirements of 1720.245. Filing of a motion for a more definite
statement under 1720.315 shall alter the period of time to request a
hearing in accordance with 1720.240.
(b) When a hearing is requested pursuant to paragraph (a) of this
section, such hearing shall be held within 45 days of receipt of this
request. The time and place for the hearing shall be fixed with due
regard for the public interest and the convenience and necessity of the
parties of their representatives.
(c) Failure to answer within the time allowed by 1720.240, or
failure to appear at a duly scheduled hearing shall result in an
appropriate order under 1710.14 1710,15 or 1710.16 of this chapter
terminating the developer's exemption. The order shall be effective as
of the date of service or receipt.
(45 FR 40500, June 13, 1980, as amended at 54 FR 40868, Oct. 4, 1989,
and 54 FR 47768, Nov. 17, 1989)
24 CFR 1720.240 Time for filing answer.
(a) Within 15 days after service of the notice or order, the
respondent shall mail or submit to the Docket Clerk for Administrative
Proceedings, Rm. 10278, Department of Housing and Urban Development,
Washington, DC 20410, an answer and three copies thereof signed by the
respondent or attorney. Unless a different time is fixed by the
Secretary, the filing of a motion for a more definite statement of the
allegations shall alter the period of time in which to file an answer as
follows:
(1) If the motion is denied, the answer shall be filed within 15 days
after service of the denial.
(2) If the motion is granted in whole or in part, the more definite
statement of allegations shall be filed after service of the order
granting the motion and the answer shall be filed within 15 days after
service of the more definite statement of allegations.
(b) If a notice or order is amended pursuant to 1720.255(a), the
respondent shall have 15 days after service of the amended notice or
order within which to file an answer.
24 CFR 1720.245 Content of answer.
(a) An answer to a notice or order shall contain: (1) Specific
admission, denial or explanation of each fact alleged in the notice or,
if the respondent is without knowledge thereof, a statement to that
effect; and
(2) A brief statement of the facts constituting each defense.
(b) Allegations not answered in this manner shall be deemed admitted.
24 CFR 1720.250 Presumption of hearing request.
When an answer to a suspension notice, a notice of proceedings, or a
suspension order is timely filed but a respondent has failed
specifically to request a hearing, the answer shall be deemed to
constitute such a request.
24 CFR 1720.255 Amendments and supplemental pleadings.
(a) Amendments. Prior to the receipt by the Docket Clerk for
Administrative Proceedings of an answer to a notice or order, that
notice or order may be amended as a matter of course. After the receipt
of an answer, the administrative law judge may allow appropriate
amendments to pleadings by motion whenever determination of a
controversy on the merits will be facilitated thereby.
(b) Variances of proof. When issues not raised by the pleadings but
reasonably within the scope of the suspension notice or notice of
proceedings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the
pleadings; and such amendments of the pleadings as may be necessary to
make them conform to the evidence and to raise such issues shall be
allowed at any time.
(c) Supplemental pleadings. The administrative law judge may, upon
reasonable notice and such terms as are just, permit service of a
supplemental pleading setting forth transactions or events which have
occurred since the date of the pleading sought to be supplemented and
which are relevant to any of the issues involved.
24 CFR 1720.260 Prehearing conferences.
(a) Where it will expedite the proceeding, the administrative law
judge may direct or allow the parties or their representatives to appear
for a conference to consider: (1) Simplification and clarification of
the issues; (2) Necessity or desirability of amendments to the
pleadings; (3) Stipulations and admissions of fact and the contents and
authenticity of documents; (4) Expedition in the discovery and
presentation of evidence; (5) Matters of which official or judicial
notice will be taken; and (6) Such other matters as may aid in the
orderly and expeditious disposition of the proceeding, including
disclosure of the names of witnesses and of documents or other exhibits
which will be introduced in evidence in the course of the proceeding.
Prior to the conference, the administrative law judge may direct or
allow the parties or their representatives to file memoranda specifying
the issues of law and fact to be considered.
(b) If the circumstances are such that a conference is impracticable,
the administrative law judge may require the parties to correspond for
the purpose of accomplishing any of the objectives set forth in this
section.
24 CFR 1720.265 Reporting -- prehearing conferences.
Prehearing conferences shall be stenographically or mechanically
reported; and the administrative law judge shall prepare and file for
the record a written summary of the action taken at the conference,
which shall incorporate any written agreements or stipulations made by
the parties at the conference or as a result of the conference.
24 CFR 1720.265 Motions
24 CFR 1720.305 Motions -- filing requirements.
During the time a proceeding is before an administrative law judge,
all motions therein shall be in writing; and, except as otherwise
provided in this part, a copy of each motion shall be served on the
other party or parties. Such motions shall be signed, addressed to,
filed with and ruled upon by the administrative law judge. The
provisions of this section need not apply to motions made during the
course of a hearing.
24 CFR 1720.310 Answers to motions.
Within 7 days after service of any written motion, an opposing party
shall answer or shall be deemed to consent to the granting of the relief
asked for in the motion. The moving party shall have no right to reply
except as permitted by the administrative law judge or the appeals
officer.
24 CFR 1720.315 Motion for more definite statement.
When a respondent is unable to respond to the allegations in a
suspension notice, a notice of proceedings, or a suspension order,
because such allegations are vague, unclear or otherwise indefinite,
motion may be made requesting a more definite statement of the
allegations before filing an answer. Such motion shall indicate
specifically in what manner the notice or order is indefinite or
defective and shall be mailed or submitted to the Docket Clerk for
Administrative Proceedings, Room 10278, Dept. of Housing and Urban
Development, Washington, DC 20410, within five days after service of the
notice or order.
24 CFR 1720.320 Motions for extension of time.
As a matter of discretion, the administrative law judge or the
appeals officer may waive the requirements of 1720.310 as to motions
for extension of time, and may rule upon such motions ex parte.
Extensions of time or continuances in any proceeding may be ordered on a
motion by the administrative law judge or on the motion of either party
for sufficient cause after the policy of the Secretary under 1720.125
has been considered.
24 CFR 1720.325 Motions for dismissal.
(a) A motion to dismiss may be made at any time until and including
the fifth day after the close of the case for the reception of evidence.
(b) When a motion to dismiss, based upon alleged failure to establish
a prima facie case, is made at the close of the evidence offered in
support of the notice or order, the administrative law judge may defer
ruling thereon until the close of the case for the reception of
evidence.
(c) When a motion to dismiss is granted so as to terminate entirely
the proceeding before the administrative law judge, the administrative
law judge shall file a decision in accordance with the provisions of
1720.525. If such a motion is granted only as to some allegations or as
to some respondents, the administrative law judge shall enter this
partial determination on the record and take it into account in the
decision.
24 CFR 1720.330 Motions to limit or quash.
Any person to whom a subpoena is directed may, prior to the time
specified therein for compliance, but in no event more than 5 days after
the date of service of such subpoena, apply to the administrative law
judge to quash or modify such subpoena, accompanying such application
with a brief statement of the reasons therefor. The administrative law
judge shall have the discretion of granting, denying or modifying said
motion.
24 CFR 1720.335 Consolidation.
When more than one proceeding involves a common question of law or
fact, the administrative law judge may order a joint hearing of any or
all of the matters in issue in the proceedings and may make such other
orders concerning the proceedings as to avoid unnecessary costs or
delay.
24 CFR 1720.335 Discovery and Evidence
24 CFR 1720.405 Depositions and discovery.
(a) At any time during the course of a proceeding, the administrative
law judge may discretionally order the taking of a deposition and the
production of documents by the deponent. Such order may be entered upon
a showing that the deposition is necessary for the purpose of discovery
or to preserve relevant evidence. Insofar as consistent with
considerations of fairness and the requirements of due process and the
rules of this subpart, a deposition shall not be ordered when it appears
that it will result in undue burden to any other party or in undue delay
of the proceeding. Depositions may be taken orally or upon written
interrogatories and cross-interrogatories.
(b) Any party desiring to take a deposition shall make application in
writing to the administrative law judge setting forth the justification
therefor and the time and place proposed for the taking of the
deposition. The application shall include also the name and address of
each proposed deponent and the subject matter concerning which each is
expected to depose and shall be accompanied by an application for any
subpoenas desired.
(c) An order that the administrative law judge may issue for taking a
deposition shall state the circumstances warranting its being taken, and
shall designate the time and place and shall show the name and address
of each person who is expected to appear and the subject matter with
regard to which each is expected to depose. The time designated shall
allow not less than 5 days from date of service of the order when the
deposition is to be taken within the United States, and not less than 15
days when the deposition is to be taken elsewhere.
(d) After an order is served for taking a deposition upon motion
timely made by any party or by the person to be deposed and for good
cause shown, the administrative law judge may determine the propriety of
and issue any of the following orders:
(1) That the deposition shall not be taken.
(2) That it may be taken only at some designated place other than
that stated in the order.
(3) That it may be taken only on written interrogatories.
(4) That certain matters shall not be inquired into.
(5) That the examination shall be held with no one present except the
parties to the action, their counsel and a person qualified in the
designated place to administer oaths and affirmations.
(e) The administrative law judge may make any other order which
justice requires to protect the party or deponent from annoyance,
embarrassment or oppression, or to prevent the unnecessary disclosure or
publication of information contrary to the public interest and beyond
the requirements of justice in the particular proceeding.
(f) Each deponent shall be duly sworn, and any adverse party shall
have the right to cross-examine. Objections to questions or documents
shall be in short form, stating the grounds of objections relied upon.
The questions and the anwers, together with all objections made, but
excluding argument or debate, shall be reduced to writing and certified
by the person before whom the deposition was taken. Thereafter such
person shall forward the deposition and one copy thereof to the party at
whose instance the deposition was taken, and shall forward one copy
thereof to the representative of each party who was present or
represented at the taking of the deposition.
(g) A deposition taken to preserve relevant evidence which any party
intends to offer in evidence may be corrected in the manner provided by
1720.515. Any such deposition shall, in addition to the other required
procedures, be read to or by the deponent and be subscribed by the
deponent if the party intending to offer it in evidence so notifies the
person before whom the deposition was taken. Subject to appropriate
rulings on such objections to the questions and answers as were noted at
the time the deposition was taken or as may be valid when it is offered,
a deposition taken to preserve relevant evidence, or any part thereof,
may be used or offered in evidence as against any party who was present
or represented at the taking of the deposition or who had due notice
thereof if the administrative law judge finds any of the following:
(1) That the deponent is dead.
(2) That the deponent is out of the United States or is located at
such a distance that attendance would be impractical, unless it appears
that the absence of the deponent was procured by the party offering the
deposition.
(3) That the deponent is unable to attend or testify because of age,
sickness, infirmity or imprisonment.
(4) That the party offering the deposition has been unable to procure
the attendance of the deponent by subpoena.
(5) That such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
hearing, to allow the deposition to be used.
24 CFR 1720.410 Subpoenas ad testificandum.
Application for issuance of a subpoena requiring a person to appear
and depose or testify at the taking of a deposition or at an
adjudicative hearing shall be make to the administrative law judge who
may issue such subpoena.
24 CFR 1720.415 Subpoenas duces tecum.
(a) Application for Issuance of a subpoena requiring a person to
appear and depose or testify and to produce specific documents, papers,
books, or other physical exhibits at the taking of a deposition, or at a
prehearing conference, or at an adjudicative hearing shall be made in
writing to the administrative law judge who may issue such subpoena and
shall specify as exactly as possible the general relevancy of the
material and the reasonableness of the scope of the subpoena.
(b) Subpoenas duces tecum may be used by any party for purposes of
discovery or for obtaining documents, papers, books, or other physical
exhibits for use in evidence, or for both purposes. When used for
discovery purposes a subpoena may require a person to produce and permit
the inspection and copying of nonprivileged documents, papers, books, or
other physical exhibits which constitute or contain evidence relevant to
the subject matter involved and which are in the possession, custody or
control of such person.
24 CFR 1720.420 Rulings on applications for compulsory process;
appeals.
(a) Applications for orders requiring the production of witnesses'
statements pursuant to the provisions of 1720.430, applications for
orders requiring the taking of depositions pursuant to 1720.405 and
applications for the issuance of subpoenas pursuant to 1720.410 and
1720.415 may be made ex parte, and, if so made, such applications and
the rulings thereon shall remain ex parte unless otherwise ordered by
the administrative law judge. Such applications shall be ruled upon by
the administrative law judge assigned to hear the case or, in the event
that judge is not available, by another administrative law judge
designated by the Secretary.
(b) Appeals to an appeals officer from rulings denying applications
within the scope of paragraph (a) of this section, or from rulings on
motions to limit or quash process issued pursuant to such applications
will be entertained by the appeals officer only upon a showing that the
ruling complained of involves substantial rights and will materially
affect the final decision, and that a determiniation of its correctness
before conclusion of the hearing is essential to serve the interests of
justice. Such appeals shall be made on the record, shall briefly state
the grounds relied on and shall be filed within 5 days after notice of
the ruling complained of. Appeals from denials of ex parte applications
shall have annexed thereto copies of the applications and rulings
involved. Any answer to such appeal shall not operate to suspend the
hearing unless otherwise ordered by the administrative law judge or the
appeals officer.
24 CFR 1720.425 Presentation and admission of evidence.
(a) All witnesses at a hearing for the purpose of taking evidence
shall testify under oath or affirmation which shall be administered by
the administrative law judge. Every party shall have the right to
present such oral or documentary evidence and to conduct such
cross-examinations as may be required for a full and true disclosure of
the facts. The administrative law judge shall receive relevant and
material evidence, rule upon offers of proof and exclude all irrelevant,
immaterial or unduly repetitious evidence.
(b) Evidence shall not be excluded merely by application of technical
rules governing its admissibility, competency, weight or foundation in
the record; but evidence lacking any significant probative value, or
substantially tending merely to confuse or extend the record, shall be
excluded. The administrative law judge may allow arguments on the
admissibility of evidence by analogy to the Federal Rules of Evidence
currently applicable in the United States District Courts of the United
States.
(c) When offered evidence is excluded, the party offering the same
shall be permitted to state on the record an offer of proof with respect
thereto and rejected exhibits, adequately marked, shall on request of
the party offering the same be retained in the record for purposes of
review. Evidence may be received subject to deferred ruling on
objections to its admissibility.
(d) Objections to evidence shall be timely made and shall specify the
particular ground of objection without argument except as argument may
be expressly required by the administrative law judge. Formal exception
to an adverse ruling is unnecessary.
24 CFR 1720.430 Production of witnesses' statements.
After a witness called by the attorney for the Office of Interstate
Land Sales Registration has given direct testimony in a hearing, any
other party may request and obtain the production of any statement, or
part thereof, of such witness pertaining to the witness' direct
testimony in the possession of the Office of Interstate Land Sales
Registration, subject, however, to the limitations applicable to the
production of witnesses' statements under the Jencks Act, 18 U.S.C.
3500.
24 CFR 1720.435 Official notice.
Official notice may be taken of any material fact which might be
judicially noticed by a District Court of the United States, any matter
in the public official records of the Office of Interstate Land Sales
Registration or any matter which is peculiarly within the knowledge of
the administrative law judge. When any decision of an administrative
law judge rests, in whole or in part, upon the taking of official notice
of a material fact not appearing in evidence of record, opportunity to
disprove such noticed fact shall be granted any party making timely
request therefor.
24 CFR 1720.435 Hearings
24 CFR 1720.505 Interlocutory review of administrative law judge's
decision.
(a) The appeals officer will not review a ruling of an administrative
law judge prior to the appeals officer's consideration of the entire
proceeding in the absence of extraordinary circumstances. Except as
provided in 1720.140 an administrative law judge shall not certify a
ruling for interlocutory review to an appeals officer unless a party so
requests and the administrative law judge is of the opinion and finds
either on the record or in writing that: (1) A subsequent reversal of
the ruling would cause unusual delay or expense, taking into
consideration the probability of such reversal, or (2) substantial
rights are at stake and the final decision might be materially affected.
(b) The certification by the administrative law judge shall be in
writing and shall specify the material relevant to the ruling involved.
The appeals officer may decline to consider the ruling certified if the
officer determines that interlocutory review is not warranted or
appropriate under the circumstances. If the administrative law judge
does not certify a matter, a party who had requested certification may
apply to the appeals officer for review. An application for review
shall be in writing and shall briefly state the grounds relied on and
shall be filed within 2 days after notice of the ruling complained of.
Review will not be granted unless the appeals officer concludes that the
administrative law judge erred in failing to certify the matter. Unless
otherwise ordered by the administrative law judge, the hearing shall
continue whether or not such certification or application is made.
Failure to request certification or to make such application will not
waive the right to seek review of the ruling of the administrative law
judge after the close of the hearing.
(43 FR 29496, July 7, 1978, as amended at 50 FR 10942, Mar. 19, 1985)
24 CFR 1720.510 Reporting and transcription.
Hearings shall be stenographically or mechanically reported and
transcribed under the supervision of the administrative law judge. The
original transcript shall be a part of the record and the sole official
transcript. Copies of transcripts shall be available from the reporter
at rates not to exceed the maximum rates fixed by contract between the
Secretary and the reporter.
24 CFR 1720.515 Corrections.
Corrections of the official transcript ordered by the administrative
law judge shall be included in the record. Corrections shall not be
ordered by the administrative law judge except upon notice and
opportunity for the hearing of objections. Such corrections shall be
made by the reporter by furnishing substitute pages, under the usual
certificate of the reporter, for insertion in the official record.
24 CFR 1720.520 Proposed findings, conclusions, and order.
The administrative law judge may fix a reasonable time, not to exceed
30 days after the close of the evidence, during which any party may file
with the administrative law judge proposed findings of fact, conclusions
of law and rules or orders together with briefs in support thereof.
Such proposals shall be in writing, shall be served upon all parties and
shall contain adequate references to the record and to authorities
relied on. The record shall show the administrative law judge's ruling
on each proposed finding and conclusion, except when the rule or order
disposing of the proceeding otherwise informs the parties of the action
taken thereon.
24 CFR 1720.525 Decision of administrative law judge.
(a) The administrative law judge shall make and file a decision
within 30 days after the close of the taking of evidence in cases in
which a hearing is held.
(b) The decision shall be effective 10 days after service upon the
parties unless a petition for appeal is filed pursuant to 1720.605
which shall serve to stay the effectiveness of the decision while the
appeal procedure is ongoing.
24 CFR 1720.530 Decision of administrative law judge -- content.
The administrative law judge's decision shall include a statement of:
(a) Findings, with specific references to principal supporting items of
evidence in the record and conclusions, as well as the reasons or bases
therefor, upon all of the material issues of fact, law or discretion
presented on the record, and (b) an appropriate order. The
administrative law judge's decision shall be based upon a consideration
of the whole record and supported by reliable, probative and substantial
evidence.
24 CFR 1720.535 Reopening of proceeding; termination of jurisdiction.
(a) At any time prior to the filing of the decision, the
administrative law judge may reopen the proceeding for the reception of
further evidence.
(b) The jurisdiction of the administrative law judge is terminated
when the decision becomes effective unless and until the proceeding is
remanded to the judge by the appeals officer or a court of appropriate
jurisdiction. The administrative law judge may sua sponte or on motion
of a party file corrections of clerical errors.
24 CFR 1720.535 Appeals
24 CFR 1720.605 Appeal from decision of administrative law judge.
(a) Petition for appeal. The administrative law judge's decision may
be appealed by filing a written petition for appeal with the Docket
Clerk for Administrative Proceedings within 10 days after service of the
decision appealed from. Copies of the petition for appeal shall be
served on all interested parties. The petition shall be limited to
specifying the findings and conclusions to which exceptions are taken,
together with a summary of the reasons in support of such exceptions.
(b) Denial of petition. A petition for appeal of the decision of the
administrative law judge may be denied by the appeals officer. The
petition shall be ruled on by the appeals officer within 10 days after
filing. A denial of the petition shall be final agency action and shall
render the administrative law judge's decision immediately effective.
(c) Appeal brief. If the appeals officer grants the petition, the
appeal shall be perfected by filing within 30 days after service of the
decision granting the petition a brief conforming to 1720.620. In
addition, the appellant shall submit a proposed order for the
consideration of the appeals officer.
24 CFR 1720.610 Answering brief.
Within 20 days after service of an appeal brief upon a party, such
party may file an answering brief conforming to the requirements of
1720.620.
24 CFR 1720.615 Reply brief.
A brief in reply to an answering brief, limited to rebuttal of
matters in the answering brief, may be filed and served by a party
within 7 days after receipt of the answering brief or the day preceding
oral argument whichever is earlier. No answer to a reply brief will be
permitted.
24 CFR 1720.620 Length and form of briefs.
No brief shall exceed 60 pages in length except with the permission
of the administrative law judge or the appeals officer on the Interstate
Land Sales Board and shall contain, in the order indicated, the
following:
(a) The title of the proceeding, file number, the name of the party
on whose behalf it is submitted and the name and address of the attorney
in the matter on the front cover or title page.
(b) Subject index with page references.
(c) Table of cases alphabetically arranged, statutes, texts, and
other authorities and materials cited, with page references.
(d) A concise statement of the facts of the case, without argument.
(e) A concise statement of the questions sought to be raised.
(f) The argument, presenting clearly the points of fact and law
relied upon in support of the position taken on each question with
specific page references to the record so far as available, and to legal
authority or other material relied upon in support of statements
contained in the argument.
24 CFR 1720.625 Oral argument.
Oral arguments will not be heard in cases on appeal to the appeals
officer unless the officer otherwise orders, and stenographic or
mechanical record of such oral argument may be made, in the officer's
discretion. The purpose of oral argument is to emphasize and clarify
the written argument appearing in the briefs and to answer questions.
24 CFR 1720.630 Decision on appeal or review.
(a) Upon appeal from or review of an administrative law judge's
decision, the appeals officer will consider such parts of the record as
are cited or as may be necessary to resolve the issues and, in addition,
to the extent necessary or desirable, will exercise all the powers which
could have been exercised had the appeals officer made the initial
decision. Unless exceptional circumstances are present, however, all
appeals and reviews will be determined upon the record made before the
administrative law judge.
(b) The appeals officer may affirm, reverse, modify, set aside or
remand for further proceedings, in whole or in part, the administrative
law judge's decision. The appellate order shall set forth the reasons
upon which the decision is based.
(c) In those cases where the appeals officer believes that further
information or additional arguments of the parties are needed as to the
form and content of the rule or order to be issued, the appeals officer
may withhold final decision pending the receipt of such additional
information or argument under procedures specified.
(d) The decision of the appeals officer shall be final 10 days after
service upon the parties.
(e) The appeals officer shall render a decision within 30 days after
the date of receipt of the reply brief or the taking of additional
information and evidence, whichever is later.
24 CFR 1720.635 Appeals officer.
The Secretary shall hear, consider and determine fully and finally
all appeals from decisions made pursuant to the rules in this part by
the administrative law judge; provided, however, that the Secretary
may, upon lawful delegation, designate a staff member or other person to
serve as the appeals officer.
24 CFR 1720.635 PART 1730 -- APPLICATION OF REGULATIONS TO EXISTING AND
FUTURE FILINGS
Authority: Sec. 1419, Interstate Land Sales Full Disclosure Act, 15
U.S.C. 1718; sec. 7(d), Department of Housing and Urban Development
Act, 42 U.S.C. 3535(d)
24 CFR 1730.100 Application of regulations to existing and future
filings.
(a) Amendments to existing registrations shall bring the Property
Report portion of the Statement of Record into compliance with the
revised regulations. The entire Additional Information and
Documentation portion of the Statement of Record need not be submitted.
However, a material change in a section or in documentation will require
the submission of the entire affected section with any changed
supporting documentation. Sections containing information and documents
not previously furnished and the financial information and documents
required by 1710.212 must be included.
(b) If, at the time of a material change to registrations not in the
current format, there are fewer than 100 lots remaining for sale in a
registered offering, an affidavit instead of a complete conversion may
be submitted. The developer must state in the affidavit that there are
fewer than 100 lots remaining for sale in the registered offering and
that it is not expected that this number will be exceeded through
reacquisitions or the adding of land. If changes are necessary to the
content of the Property Report or Statement of Record, an amendment in
the format required by the regulations in effect at the time of the last
effective date must accompany the affidavit. However, the amendment
must include the new revocation language on the cover sheet required by
1710.105 and the contract provisions required by 1710.103,
1710.209(f), 1710.558 and 1710.559.
(c) Subdivisions that met the eligibility criteria for continuing
operation under the five acre, free and clear, limited offering or local
offering exemptions previously set forth in former 1710.15, as
published at 45 FR 40486-87 (1980), may continue exempt sales so long as
all applicable eligibility requirements are met. However, these
exemptions are not available for new offerings.
(49 FR 31372, Aug. 6, 1984)
24 CFR 1730.100 24 CFR Ch. XI (4-1-92 Edition)
24 CFR 1730.100 Solar Energy and Energy Conservation Bank, HUD
24 CFR 1730.100 CHAPTER XI -- SOLAR ENERGY AND ENERGY
24 CFR 1730.100 CONSERVATION BANK, DEPARTMENT
24 CFR 1730.100 OF HOUSING AND URBAN DEVELOPMENT
Part
Page
1800 Financial Assistance Program of the Solar Energy and Energy
Conservation Bank
1895 Bylaws
24 CFR 1730.100
24 CFR 1730.100 24 CFR Ch. XI (4-1-92 Edition)
24 CFR 1730.100 Solar Energy and Energy Conservation Bank, HUD
24 CFR 1730.100 PART 1800 -- FINANCIAL ASSISTANCE PROGRAM OF THE SOLAR ENERGY AND ENERGY CONSERVATION BANK
24 CFR 1730.100 Pt. 1800
24 CFR 1730.100 Subpart A -- Introduction
Sec.
1800.1 Scope of authority and purpose.
1800.3 Definitions.
1800.5 Bank organization.
24 CFR 1730.100 Subpart B -- Financial Assistance -- General
1800.11 General.
1800.13 Types of assistance.
1800.15 Reduction of principal.
1800.17 Prepayment of interest.
1800.19 Grants.
1800.21 Repayment of loans.
1800.23 Combined loan applications.
1800.25 Limitations on retroactive assistance.
1800.27 Terms and conditions of loans similar to unassisted loans.
1800.29 Debarred contractors, suppliers and financial institutions.
1800.33 Installation certificate.
1800.35 Energy audit or energy design analysis required.
1800.37 Financial assistance not available until notice.
24 CFR 1730.100 Subpart C -- Solar Energy Assistance
1800.41 General.
1800.43 Eligible recipients.
1800.45 Eligible solar energy systems.
1800.47 Levels of assistance.
1800.49 Warranties.
1800.51 Limitations on financial assistance by utilities.
1800.53 Limitation on assistance to residents of housing
cooperatives.
1800.55 Standards.
24 CFR 1730.100 Subpart D -- Energy Conservation Assistance
1800.61 General.
1800.63 Eligible recipients.
1800.65 Eligible energy conservation measures.
1800.67 Levels of assistance.
1800.69 Warranties.
1800.71 Limitation on assistance to tenants.
1800.73 Limitation on assistance to residents of housing
cooperatives.
1800.75 Minimum expenditures for energy conservation measures.
1800.77 Contractors and suppliers.
1800.79 Residential energy audit information.
24 CFR 1730.100 Subpart E -- Program Operation
1800.91 Cooperative agreements with States.
1800.93 Program participants.
1800.95 Allocation of funds.
1800.97 Recapture of funds.
1800.98 Reallocation of funds.
1800.99 Authorized expenditures.
1800.101 Distribution of funds.
1800.103 Selection of financial institutions.
1800.105 State discretion.
1800.107 Reporting and recordkeeping requirements.
1800.109 Manner of payment.
24 CFR 1730.100 Subpart F -- Miscellaneous
1800.120 Conflict of interest.
1800.121 Penalties and remedies.
1800.123 Retention of records by financial institutions and
recipients.
1800.125 Audit.
1800.127 Prohibition against tax credits and financial assistance for
same expenditure.
1800.129 No gross income.
1800.131 No increase in basis.
1800.133 Waiver of regulations.
1800.135 Applicability of general HUD regulations.
1800.137 Other Federal requirements.
Appendix I to Part 1800 -- Climatic Factor for Passive Solar Energy
Space Heating Systems
Appendix II to Part 1800 -- Procedure for Calculating Subsidy and
Reduced Interest Rate on Prepayment of Interest Loan Assistance
Appendix III to Part 1800 -- Prepayment of Interest Loan Subsidy
Examples
Authority: Solar Energy and Energy Conservation Bank Act (12 U.S.C.
3602-3619).
Source: 49 FR 9880, Mar. 16, 1984, unless otherwise noted.
24 CFR 1730.100 Subpart A -- Introduction
24 CFR 1800.1 Scope of authority and purpose.
The Solar Energy and Energy Conservation Bank was established in the
Department of Housing and Urban Development by the Solar Energy and
Energy Conservation Bank Act, subtitle A, title V of Pub. L. 96-294,
94 Stat. 611, 12 U.S.C. 3601 et seq., enacted on June 30, 1980. The
purpose of the Act is to encourage the use of solar energy and energy
conservation, and thereby reduce the dependence of the United States on
foreign sources of energy supplies.
24 CFR 1800.3 Definitions.
Act means the Solar Energy and Energy Conservation Bank Act, 12
U.S.C. 3601 et seq.
Active solar energy system means equipment which is designed to
absorb solar energy and provide auxiliary water heating and/or space
heating by use of mechanically forced thermal energy transfer devices
such as fans or pumps.
Agricultural building means any building used exclusively in
connection with the production, harvesting, storage, or drying of
agricultural commodities.
Annual income means the total annual income of a family from all
sources for the 12-month period following the date of determination of
income, computed in accordance with part 813 of this title which
prescribes the method of computation for the section 8 housing
assistance payment programs of HUD, except that for purposes of this
part only actual income from Net Family Assets rather than imputed
income shall be included.
Applicant means any person applying for financial assistance.
Bank means the Solar Energy and Energy Conservation Bank established
under the Act.
Board means the Board of Directors of the Bank.
Cogeneration system means any system used to produce electricity or
mechanical work and any form of useful thermal energy (such as steam,
hot water, or hot gases), or any combination thereof, that reduces the
annual energy consumption of the building through the sequential use of
energy. Use of such energy produced external to the building in which
the cogeneration system is installed is permitted.
Commercial building means any building other than a one- to
four-family residential or multifamily residential building which is
used primarily to carry on a business (including any nonprofit business)
and is not used primarily for the manufacture or production of raw
material, products, or agricultural commodities. A building is used
primarily to carry on a business if it has 50 percent or more of its
floor space devoted to the business. A building owned by a public body
may be a commercial building unless it is a building used for general
conduct of government such as a public school, city hall, county
administrative building, State capitol or office building or other
facility in which the legislative, judicial or other general
administrative affairs of government are conducted. Buildings used for
religious purposes are not commercial buildings.
Contractor means a person or entity receiving payment, directly or
indirectly, for installing a solar energy system or energy conservation
measure. In the case of a solar energy system installed in a
newly-constructed building, the builder shall be considered the
contractor. If installation is performed by a subcontractor, then the
subcontractor may fulfill requirements such as the warranty requirements
in 1800.49 and 1800.69 of this part and the listing of 1800.77 of
this part in lieu of the contractor.
Cost-effective means, generally, that the solar energy system or
energy conservation measure is expected to result in a dollar savings
over the life of such system or measure that exceeds its costs over its
useful life, as determined by an energy audit or energy design analysis
without consideration of the financial assistance of the Bank. Such
determination shall be made either on the basis of simple payback or
life-cycle cost analysis. Simple payback means the determination of the
time in years for recovery of the cost of an energy system based on
estimated annual energy savings in dollars at current energy prices.
The cost of a measure or system is divided by the annual savings to
yield the simple payback period. Life-cycle cost analysis means an
evaluation of investment alternatives to an energy conservation measure
or a solar energy system which considers all costs and economic benefit
parameters over the useful life of the measure or system as the common
time element for the evaluation. All present value costs are aggregated
and compared to the present value of all benefits and a measure or
system is deemed to be cost-effective when the benefits exceed the
costs. As a minimum, the evaluation shall compare the costs and
benefits of a measure or system to a non-energy improvement investment
alternative such as U.S. Treasury bonds. The general methodology to be
followed in the evaluation shall be as defined by a State and approved
by the Bank. A solar energy system or energy conservation measure will
also be considered cost-effective, in the case of applicants for
financial assistance who are excepted from the requirement to submit an
energy audit or energy design analysis stated in 1800.35, if such
system or measure is a program measure for the area under the
regulations governing the RCS program (10 CFR part 456) or (in States
for which there is no listing of program measures in the RCS
regulations) if such system or measure is listed in 1800.45(a),
1800.65(a), or 1800.65(b).
Covered product means:
(a) If the manufacturer provides a complete solar energy system to
the supplier for installation by the contractor, then the system.
(b) In all other cases, all components of a solar energy system which
are designed for use in solar energy systems and which are not ordinary
building materials generally used for construction purposes.
Dwelling unit means any building (including a manufactured home) or
part of a building designed for year-round non-transient residential use
by one family.
Energy audit means:
(a) An energy audit of a building or dwelling unit performed for
purposes of Title II or Title VII of the National Energy Conservation
Policy Act, 42 U.S.C. 8211 et seq. and 8281 et seq., respectively, or
(b) An on-site inspection of the building or dwelling unit using
procedures approved by a State or Federal government entity (or
performed by an energy auditor who is determined to be qualified by a
State or local government entity) which includes a determination of and
provides information on:
(1) The type, quantity, and rate of energy consumption of such
building or dwelling unit;
(2) Energy conserving maintenance and operating procedures which can
be employed to significantly reduce the energy consumption of such
building or dwelling unit; and
(3) The cost of purchasing and installing appropriate energy
conservation measures, a solar energy system, or both (excluding
measures or systems considered inappropriate for this purpose by a
State), and the savings in energy costs which are likely to result from
the installation of such measures or system.
Energy conservation measure means a measure listed in 1800.65.
Energy design analysis means a technical analysis performed on the
design of a building to assess the cost-effectiveness of the energy
conserving features and use of solar energy on an annual basis performed
by a licensed engineer or architect qualified to conduct such an
analysis, or by an energy auditor who is determined to be qualified by a
State or local governmental entity.
Family has the meaning used for lower-income housing programs of HUD
as set forth in part 812 of this title, as it may be amended from time
to time, or any replacement definition. It includes but is not limited
to an elderly family, a single person, the remaining member of a tenant
family, and a displaced person, as such terms are used in part 812, but
excludes certain aliens.
Financial assistance means the three forms of financial assistance
described in 1800.13 of this part.
Financial institution means:
(a) Any lender with a current contract of insurance under Section 2
of Title I of the National Housing Act, 12 U.S.C. 1703,
(b) Any utility providing financing for the purchase and installation
of energy conservation measures or solar energy systems in accordance
with the requirements of Title II of the National Energy Conservation
Policy Act, 42 U.S.C. 8211 et seq.,
(c) Any unit of general local government or Indian tribe which
receives a grant under Title I of the Housing and Community Development
Act of 1974, 42 U.S.C. 5301 et seq., which includes lending activities
to be undertaken by the unit of general local government or Indian
tribe.
(d) Any public body for which a local loan approval agreement is in
effect under the Section 312 Rehabilitation Loan program, 42 U.S.C.
1452(b),
(e) Any lender currently approved to participate in HUD mortgage
insurance programs under Title II of the National Housing Act, 12 U.S.C.
1709(b)(1),
(f) Any Public Housing Agency which is acting on behalf of
tenant-grantees pursuant to 1800.63(j) of this part,
(g) Any Neighborhood Housing Services corporation which is
administering a local program as described in 4100.1 of this title and
which meets all requirements of the Neighborhood Reinvestment
Corporation.
(h) Any State, unit of general local government or Indian tribe which
will provide financial assistance only in the form of grants,
(i)(1) Any chartered institution, permanent organization having
succession, or trust in the following forms:
(i) Any member of the Federal Reserve System or a lender whose
accounts are insured by the Federal Savings and Loan Insurance
Corporation, the Federal Deposit Insurance Corporation or the National
Credit Union Administration, or any depository institution which is
subject to the inspection and supervision of a governmental agency which
is required by law to make periodic examinations of its books and
accounts and has and maintains a net worth of not less than $100,000 in
assets acceptable to the State; or
(ii) Any institution which has as its principal activity the lending
or investment of funds in mortgages, consumer installment notes or
similar advances of credit, or the purchase of consumer installment
contracts, which is not included in paragraph (i)(1)(i) of this section;
and meets the following requirements:
(A) It shall have and maintain a net worth of not less than $100,000
in assets acceptable to the State,
(B) It shall have and maintain a reliable warehouse line of credit or
other loan funding program acceptable to the State in an amount of not
less than $250,000 available for use in loan financing, and
(C) It shall within 75 days of the close of its fiscal year and at
such other times as may be requested, file with the State an audit
report (a financial statement in a form acceptable to the State
consisting of a balance sheet, a statement of operations and retained
earnings, and an analysis of the lender's net worth adjusted to reflect
only assets acceptable to the State) based on an audit performed by a
Certified Public Accountant, or by a qualified Independent Public
Accountant (as defined by the Comptroller General of the United States)
licensed by a State or other political subdivision of the United States,
or
(iii) Any Federal or State governmental agency, unit of general local
government or agency thereof, Indian tribe, Federal Reserve Bank,
Federal Home Loan Bank, and National Mortgage Association which is
empowered to participate in a consumer installment lending operation.
(2) Any institution described in paragraphs (i)(1)(i), (ii) or (iii)
of this section must also meet the following requirements:
(i) It agrees to notify the State of termination of its supervision
by its supervising agency and all corporate changes (if a corporation),
including, but not limited to mergers, terminations, name, location,
control of ownership, and character of business,
(ii) It employs trained personnel competent to perform their assigned
responsibilities in consumer lending activities and the State determines
that it has adequate staff and facilities, and
(iii) It shall file a yearly report of its status and operations with
the State and shall submit a copy of its latest financial statement or
any other information upon request of the State, and
(j) Any other organization specifically approved by the Bank as a
financial institution.
Furnace means any single heating unit or multiple-zoned heating unit
either integral or modular, capable of meeting the heating capacity
requirement of the building or zone as appropriate, but does not include
a heat pump or a portable room heating unit.
Gross annual sales means the total revenues received over a 12 month
period from selling goods or performing services before any deductions
have been made for returns, allowances or discounts.
HUD means the Department of Housing and Urban Development.
Improvement cost means:
(a) The actual cost of an energy conservation measure (except an
energy audit) or solar energy system,
(b) Any incidental cost necessary to ensure the quality of the energy
conservation measure or solar energy system (for example, providing
adequate ventilation in connection with attic insulation), but not
including the cost of repairs,
(c) Cost of an energy audit (in excess of the first $15 in cost for
each dwelling unit covered by the audit for a one- to four-family or
multifamily residential building or for a commercial or agricultural
building), and
(d) The actual cost to the recipient of the labor involved in the
installation by a contractor.
Indian tribe means any entity which is eligible to receive a grant
under part 571 of this title or under 10 CFR 440.11 or which is a tribe
under 905.102 of this title.
Manufacturer means:
(a) For the purposes of warranties for solar energy systems, the
producer of any covered product, and
(b) For the purpose of warranties for energy conservation measures,
the producer of any energy conservation measure.
Median area income means the median annual income for an area as
determined by HUD for the section 8 housing assistance payment programs
of HUD which adjust median area income for family size and region. When
the annual income of an applicant must be determined in terms of
percentage of median area income, the median area income for the
appropriate family size must be used.
Multifamily residential building means any building which has 50
percent or more of its floor space used for residential purposes,
physically contains five or more dwelling units within the living space
of the building structure or building envelope and has at least one
system for heating or cooling or both. Where building class cannot be
readily defined due to unusual circumstances, the Bank will provide a
written determination upon request.
Non-profit owner or tenant means an owner or tenant of a commercial
or agricultural building, which is organized under Federal, State or
local law as a non-profit entity, and may include a public body.
One- to four-family residential building means any building which has
50 percent or more of its floor space used for residential purposes,
physically contains at least one and not more than four dwelling units
within the living space of the building structure or the building
envelope, except for single family attached construction (e.g.,
townhouses, rowhouses), and has at least one system for heating or
cooling or both. Where a building class cannot be readily defined due
to unusual circumstances, the Bank will provide a written determination
upon request.
Passive solar energy system means, with respect to a building, any
component, addition, alteration or improvement which is designed to
utilize solar energy for space or water heating or to provide space
cooling based primarily on convective, conductive, or radiant energy
transfer (or some combination of these types) to reduce the energy
requirements of the building. In addition, such a system for space
heating shall either contain the five recognition factors or shall be
approved in writing by the Bank. The five recognition factors are: (a)
A solar collection area, (b) an absorber, (c) a storage mass, (d) a heat
distribution method, and (e) a heat regulation device. A solar
collection area is a large area of transparent or translucent material,
such as glass, positioned so that the rays of the sun directly strike an
absorber. The collector area must be facing within 30 of south. An
absorber is a surface, such as a floor, that is exposed to the rays of
the sun. The absorber changes solar radiation into heat, and then
transfers the heat to a storage mass. A storage mass is material, such
as masonry, that receives and holds heat from the absorber and later
releases the heat to the inside of the building. The storage mass must
be large enough to store and deliver enough solar heat for the size of
the building. Also, the storage mass must be located so that the stored
heat is distributed directly to the conditioned areas of the building
through a heat distribution method. A heat distribution method is a
system that releases radiant or convective heating from the storage mass
to the conditioned areas of the building. A heat regulation device is a
shading or venting mechanism, such as awnings or insulated drapes, to
control the amount of solar heat admitted through the solar collection
areas, and nighttime insulation or its equivalent to control the amount
of heat permitted to escape from the inside of the building. A building
with a system for space cooling must be designed with a combination of
inherent features that limit heat gain, control temperature by
ambient/underground-cooled air ventilation, and provide a heat rejection
capability during the cooler portion of the day-night temperature swing.
Any passive solar energy space heating or cooling system must result in
a reduction in annual energy consumption as determined by an energy
design analysis versus a comparable building without such a system or
systems having the same insulation levels except for such unique
features as movable insulation.
Person means an individual or any corporation, partnership, joint
venture or other entity.
RCS means the Residential Conservation Service program of the
Department of Energy set forth in 42 U.S.C. 8211 et seq. and 10 CFR
part 456.
Recipient means a person receiving financial assistance under the
Act.
Solar domestic hot water system means an active or passive solar
energy system for heating potable water, and excludes any industrial
process heat applications.
Solar energy system means a system listed in 1800.45 of this part.
Solar pool heating system means an active or passive solar energy
system for heating water in a swimming pool which is part of a
commercial building and which is used predominantly for therapeutic or
similar non-recreational purposes.
Standard loan means a loan having over its amortization period a
fixed rate of interest and level monthly payments.
State means any State (which includes the District of Columbia,
Puerto Rico, Guam, the Northern Mariana Islands, the Virgin Islands,
American Samoa and the Trust Territory of the Pacific Islands). As
described in 1800.93(d)(2) of this part, an Indian Assistance
Coordinator designated by the Bank shall also be treated as a State for
most purposes.
Subsidy means financial assistance or the amount of financial
assistance.
Substantially rehabilitated means that, with respect to an existing
one- to four-family or multifamily residential building, a solar energy
system has been installed and other improvements (costing at least
$1,000 per dwelling unit) have been made.
Supplier means:
(a) For the purposes of warranties for solar energy systems, the
supplier (other than the manufacturer) of any covered product,
(b) For the purposes of warranties for energy conservation measures,
the supplier of any energy conservation measure, and
(c) For purposes of 1800.29 and 1800.77 of this part, a person who
supplies an energy conservation measure directly to the recipient.
Unit of general local government means any city, county, town,
township, parish, village, or other general purpose political
subdivision of a State, or a combination of such political subdivisions.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25014, June 14, 1985)
24 CFR 1800.5 Bank organization.
The organization of the Bank is described in the bylaws of the Bank,
which are published as part 1895 of this chapter. Amendments to the
bylaws are effective when adopted by the Board and will be published in
the Federal Register for information purposes.
24 CFR 1800.5 Subpart B -- Financial Assistance -- General
24 CFR 1800.11 General.
This subpart sets forth the conditions and requirements that are
applicable to financial assistance for both solar energy systems and
energy conservation measures.
24 CFR 1800.13 Types of assistance.
(a) General. The Bank is authorized to make payments to financial
institutions for use as financial assistance in the form of reductions
of the principal obligations of loans or qualifying portions of loans,
prepayments of the interest which would otherwise be due with respect to
loans or qualifying portions of loans, and grants.
(b) Forms of financial assistance for loans. (1) Except as specified
in paragraph (b)(2) of this section, financial assistance used in
connection with loans may be in the form of a reduction in principal,
prepayment of interest, or a combination of reduction in principal and
prepayment of interest, at the discretion of the financial institution.
(2) Reduction of principal shall be the only form of financial
assistance used in connection with loans other than standard loans.
(3) Financial assistance in the form of grants shall not be combined
with assistance in the form of a loan subsidy.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25015, June l4, 1985)
24 CFR 1800.15 Reduction of principal.
When financial assistance is in the form of reduction of principal, a
financial institution must have made a loan or at least a bona fide loan
commitment in the full unreduced principal amount to an eligible
recipient for use for eligible purposes under this part. Prior to
receiving payment from a State a financial institution may choose to
disburse loan proceeds for the unreduced principal amount or in an
amount equal to the difference between the loan commitment and the
subsidy amount as long as an amount equal to the rest of the loan
commitment is disbursed to the recipient whenever the financial
institution receives payment from the State. The loan repayment
schedule may be set based on the principal amount which will remain
owing after reduction of principal by the financial institution to avoid
recalculation of the repayment schedule. The loan must have an interest
rate not exceeding the rate for comparable unassisted loans.
(50 FR 25016, June 14, 1985)
24 CFR 1800.17 Prepayment of interest.
(a) Form. Prepayment of interest on a loan shall take the form of
reduction of the interest rate which would otherwise have been charged.
The available subsidy may be used entirely toward prepayment of interest
or a portion of it may be used as a reduction of principal with the
balance of the subsidy used toward prepayment of interest. Where the
two forms of loan subsidy are applied to a single loan, the reduction of
principal shall be applied first following 1800.15 of this part and the
prepayment of interest portion shall be calculated following paragraph
(b) of this section using the reduced principal amount of the loan.
(b) Calculation. (1) The amount of the interest rate reduction will
be calculated by taking into account the compounded growth of the value
of the assistance over the term of the loan where the projected annual
percentage growth rate is less than the interest rate of the unassisted
loan. The projected annual percentage growth rate will be determined by
applying a discount rate (determined in accordance with paragraph (b)(2)
of this section) to the interest rate prevailing for comparable loans on
the day the assisted loan is made. The projected annual percentage
growth rate will equal one minus the decimal discount rate, multiplied
by the prevailing interest rate and then rounded up to the nearest 0.25
percentage increment available.
(2) The Bank will prescribe the discount rate to be used in
calculating prepayment of interest. The Bank may make adjustments to
the discount rate, from time to time, as it deems appropriate or
necessary by increasing or decreasing the maximum allowable discount
rate. All such adjustments will be announced by notice in the Federal
Register. The initial discount rate for program implementation, and
until revised, is 60 percent. A State may vary the discount rate below
the 60 percent prescribed (or any subsequent maximum allowable discount
rate) as market demand/response to programs implemented in the State may
warrant.
(3) Appendix II to this part explains the calculation procedure for
assistance in the form of prepayment of interest or combined reduction
of principal and repayment of interest. Appendix III to this part
presents examples of calculations for assistance in the form of
prepayment of interest or combined reduction of principal and prepayment
of interest. States may adopt alternative procedures provided the
subsidy amount determined from any alternative procedure does not exceed
the subsidy determined by appendix II.
(4) In the case of a loan for which only a portion qualifies for
financial assistance, e.g., a home improvement loan of $2,000 which
includes $1,000 for eligible conservation measures, the subsidy may be
applied to the entire loan when calculated in accordance with procedures
contained in appendix II.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25016, June 14, 1985)
24 CFR 1800.19 Grants.
Before a grant is approved, the financial institution must receive
written certification from the applicant (or other evidence acceptable
to the financial institution) that financial resources are available to
the applicant which, when added to the grant, will be sufficient to pay
the full improvement cost of the energy conservation measures to be
purchased and installed. After receipt of the installation certificate
required by 1800.33 of this part, the financial institution may pay the
grant directly to the applicant, the contractor, or other person or
entity performing the installation, or the supplier (if the applicant
performs the installation), at the discretion of the financial
institution, unless a State prescribes a particular grant delivery
system.
24 CFR 1800.21 Repayment of loans.
(a) No prepayment penalty. There shall be no penalty imposed on the
borrower if the loan is repaid before the end of the term of repayment.
(b) Term of repayment. Unless financial institutions establish
shorter terms (but no less than one year) at the request of the
borrower, financial assistance may be provided in connection with loans
for:
(1) The purchase and installation of energy conservation measures
only if the term of repayment of the loan is not less than five and not
more than fifteen years,
(2) The purchase and installation of solar energy systems in one- to
four-family residential buildings, or the purchase of one- to
four-family residential buildings with such systems, only if the terms
of repayment of the loan is not less than five and not more than 30
years, or
(3) The purchase and installation of solar energy systems in
multifamily residential, commercial or agricultural buildings, or the
purchase of multifamily residential, commercial or agricultural
buildings with such systems, only if the term of repayment of the loan
is not less than five and not more than 40 years.
(c) Repayment to Bank. Subject to the qualifications set forth
herein, financial institutions must repay to the Bank the portion of any
prepaid interest which is in excess of the actual interest due on the
loan at the time a recipient fails to meet his or her obligations on the
loan. In calculating whether such excess interest exists, a financial
institution shall determine the amount of interest it would normally
have received on the loan at the prevailing interest rate to the time of
default and subtract it from the sum of the actual interest received on
the loan plus the amount of financial assistance provided in connection
with the loan. If this amount is more than $100.00 and default occurs
sooner than three years after the loan is made, the amount calculated is
to be repaid by the financial institution to the State, which shall
either repay the amount to the Bank or use the amount for other purposes
permitted by its cooperative agreement with the Bank (described in
1800.91 of this part).
(d) Pre-emption of State or local maximum loan terms. (1) Any State
or local law, ordinance, regulation or similar requirement which
establishes a legal maximum loan term of less than five years shall not
apply to a loan if either the principal of such loan is reduced or the
interest on such loan is prepaid in accordance with this part.
(2) A financial institution may require its borrower to agree that
the term of a loan shall be reduced to the maximum term permitted by
applicable law (if less than five years) if a loan with a term of five
years or more was made in good-faith reliance on an application for
financial assistance and the provisions of this paragraph, and financial
assistance is never provided in accordance with this part.
24 CFR 1800.23 Combined loan applications.
Recipients may recieve financial assistance with respect to a single
loan for a combination of eligible solar energy systems and/or energy
conservation measures. The amount of financial assistance provided will
be the sum of the amounts of financial assistance which would be
available if all solar energy systems were financed by one loan and all
energy conservation measures were financed by a separate loan.
24 CFR 1800.25 Limitations on retroactive assistance.
(a) Purchase and installation in existing buildings. Financial
assistance shall not be provided in connection with expenditures for
purchase and installation of solar energy systems or energy conservation
measures in existing buildings if the expenditures were made prior to
the date of the application for financial assistance.
(b) Purchase from builders. Financial assistance shall not be
provided in connection with a loan for the purchase of a building if
permanent financing has been closed prior to the date of the application
for financial assistance or if the expenditures were made by the
applicant prior to May 31, 1983.
(c) New construction by recipient. Financial assistance shall not be
provided in connection with expenditures for the purchase and
installation of solar energy systems in a building which is newly
constructed by the recipient, if the recipient has closed permanent
financing of the expenditures prior to the date of the application for
financial assistance or if the expenditures were made prior to May 31,
1983.
24 CFR 1800.27 Terms and conditions of loans similar to unassisted
loans.
Except as otherwise required by this part, the terms and conditions
of loans proposed to be assisted under this part must be comparable to
similar unassisted loans at the prevailing market rates provided by the
financial institution. Terms and conditions include the interest rate,
maturity and any required fees, points or security provisions.
24 CFR 1800.29 Debarred contractors, suppliers, and financial
institutions.
(a) Contractors. The financial institution must receive a written
certification from the contractor (or other evidence acceptable to the
financial institution) that the contractor is not on either of the
following lists:
(1) The Consolidated List of debarred, suspended and ineligible
contractors prepared by the General Services Administration pursuant to
48 CFR chapter 1, subchapter B, subpart 9.4;
(2) HUD's list of debarred, suspended and ineligible participants,
available from HUD field offices (see part 24 of this title).
If installation is not performed by a contractor, then the financial
institution must receive a written certification from the supplier (or
other evidence acceptable to the financial institution) that the
supplier is not on either of the lists.
(b) Financial institutions. No financial institution may participate
in the Bank's programs if it is on HUD's list of debarred, suspended and
ineligible participants available from HUD field offices (see part 24 of
this title).
(c) Alternative State procedures. Paragraphs (a) and (b) of this
section shall not apply for any State which has procedures for barring
participation by contractors and financial institutions which the Bank
has accepted as an alternative to the provisions of paragraphs (a) and
(b).
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25016, June 14, 1985)
24 CFR 1800.33 Installation certificate.
(a) Requirement for receiving Bank funds. No financial institution
may request any Bank funds in connection with a particular applicant's
solar energy system or energy conservation measure unless:
(1) The financial institution has received an installation
certificate from the applicant, or
(2) The applicant has agreed to provide an installation certificate
to the financial institution immediately upon completion of installation
of such solar energy system or energy conservation measure (not
applicable to grants), or
(3) A representative of the financial institution has executed an
installation certificate (applicable only when a grant will not be paid
directly to the recipient).
(b) Content of certificate.
(1) An installation certificate from an applicant must include the
following:
(i) The applicant's signature, and
(ii) A statement that the grant or loan proceeds will be used
immediately toward payment for eligible purposes under this part, or
toward reimbursement for payments for eligible purposes under this part.
(2) An installation certificate from a financial institution
representative must include the following:
(i) The signature of the representative, and
(ii) A statement that the grant will not be paid directly to the
recipient but will be used immediately by the financial institution for
payment of eligible purposes under this part, or toward reimbursement
for payments for eligible purposes under this part.
(3) In all cases except solar space heating or cooling systems,
installation certificates must also include:
(i) The improvement cost, or
(ii) A statement that the improvement cost equals or exceeds the cost
estimate (which shall be stated) which was used to determine the amount
of financial assistance, or
(iii) A statement that the improvement cost equals or exceeds the
loan amount (which shall be stated) used to determine the amount of
financial assistance.
(c) Reasonable costs. Costs in excess of reasonable costs are not
eligible for financial assistance and must be disregarded in an
installation certificate.
(50 FR 25016, June 14, 1985)
24 CFR 1800.35 Energy audit or energy design analysis required.
(a) General. An applicant for financial assistance for an existing
building (other than a substantially rehabilitated building with a solar
domestic hot water system only) must submit to the financial institution
a copy of an energy audit performed for the building or dwelling unit
for which financial assistance is requested (or an energy design
analysis, in the case of a newly constructed or substantially
rehabilitated building with solar space heating or cooling) before the
financial assistance is provided. In the case of a substantially
rehabilitated building or a newly constructed building with a solar
domestic hot water system only, either an energy audit or an energy
design analysis must be submitted.
(b) Exceptions. This section shall not apply if financial assistance
is provided only for purchase and installation in a one- to four-family
residential building of energy conservation measures listed in
1800.65(c) of this part. This section shall also not apply in the case
of one- to four-family residential buildings in areas in which energy
audits are not available under the provisions of Title II or Title VII
of the National Energy Conservation Policy Act, 42 U.S.C. 8211 et seq.
and 8281 et seq., respectively.
(Approved by the Office of Management and Budget under OMB control
number 2504-0001)
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25016, June 14, 1985)
24 CFR 1800.37 Financial assistance not available until notice.
Unless the Bank has published a notice in the Federal Register
stating that financial assistance may be provided for commercial and
agricultural buildings to applicants who are not non-profit owners or
tenants, or for passive solar space cooling systems in buildings other
than newly constructed one- to four-family residential buildings, no
financial assistance may be provided for such purposes, despite any
contrary provisions in subparts C and D of this part. This section is
not subject to waiver on a case-by-case basis pursuant to 1800.133 of
this part.
24 CFR 1800.37 Subpart C -- Solar Energy Assistance
24 CFR 1800.41 General.
This subpart sets forth the conditions and requirements that are
applicable only to financial assistance for solar energy systems.
24 CFR 1800.43 Eligible recipients.
(a) Existing buildings. An owner of an existing one- to four-family
or multifamily residential, commercial or agricultural building who
purchases and installs a solar energy system in such building with the
proceeds of a loan shall be eligible to receive financial assistance in
connection with such loan.
(b) Newly constructed or substantially rehabilitated buildings. A
purchaser of a newly constructed or substantially rehabilitated one- to
four-family or multifamily residential, commercial or agricultural
building with a solar energy system shall be eligible to receive
financial assistance in connection with a loan for the purchase of the
building.
(c) Joint applications. A joint owner of a dwelling unit or of a
building may apply for assistance individually, simultaneously with
other joint owners in a single application, or simultaneously with other
joint owners by a separate application. If simultaneous separate
applications are made by two or more joint owners with respect to the
same building or dwelling unit, such applicants collectively may not
receive assistance exceeding the maximum level of assistance established
for such building or dwelling unit under 1800.47. Spouses are not
considered joint owners. Each applicant in a joint application must be
eligible under this section. The average annual income of joint
applicants shall be used to determine compliance with paragraph (f) of
this section after December 31, 1985.
(d) Cooperatives and condominiums. The provisions in 1800.63(k) of
this part apply to assistance for solar energy systems.
(e) Assistance on behalf of others. Any person may receive financial
assistance on behalf of any owner or tenant who would be eligible to
receive financial assistance, if such owner or tenant consents to the
arrangement in writing. Such owner or tenant must comply with
1800.127(b), and must be reported to the Internal Revenue Service
pursuant to 1800.127(a). Such person shall be responsible for
compliance with all requirements of this part which would apply to the
owner or tenant if he or she had received the financial assistance.
Such person may receive the financial assistance in connection with a
single loan in an amount equal to the sum of the amounts of financial
assistance which each owner or tenant could have received.
(f) Income limitation. Financial assistance may not be provided in
connection with a loan made to an owner of an existing one- to
four-family residential building after December 31, 1985 if such owner
is not an individual or is an individual whose family has an annual
income in excess of 250 percent of the median area income.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25016, June 14, 1985)
24 CFR 1800.45 Eligible solar energy systems.
(a) Eligible systems. The following are eligible solar energy
systems, subject to paragraphs (b), (c) and (d) of this section:
(1) passive solar energy systems, and
(2) active solar energy systems.
(b) Cost-effectiveness. A solar energy system shall not be eligible
for assistance unless it has been found to be cost-effective.
(c) Water heating. The only eligible solar energy systems for water
heating are solar domestic hot water systems and solar pool heating
systems.
(d) Mixed use buildings. In a building in which floor space is used
for both residential and other purposes, no special rules apply if the
building is a commercial or agricultural building or is a one- to
four-family or multifamily residential building in which at least 80
percent of the floor space is used for residential purposes. Otherwise,
solar energy systems are eligible if they benefit the residential
portion of the building only or if the applicant is a non-profit owner
and the non-residential portion of the building is used for purposes
which, if extended throughout the building, would qualify the building
as a commercial or agricultural building.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25017, June 14, 1985)
24 CFR 1800.47 Levels of assistance.
Financial assistance shall not exceed the least of any applicable
amounts determined under paragraphs (a), (b), and (c) of this section.
(a) Fixed amount. (1) The maximum amount of assistance for solar
space heating systems or any combination of space heating with passive
space cooling and solar domestic hot water systems shall be as follows:
(i) $5,000 for a one-family residential building;
(ii) $7,500 for a two-family residential building;
(iii) $10,000 for a three- or four-family residential building;
(iv) For multifamily residential buildings, $2,500 multiplied by the
number of dwelling units; and
(v) $100,000 for commercial or agricultural buildings.
(2) The maximum amount of assistance for solar domestic hot water
systems shall be $1,000 per dwelling unit or 40 percent of the
improvement cost, whichever is less, for one- to four-family residential
buildings, and $12,500 or 40 percent of the improvement cost, whichever
is less, for multifamily residential, commercial, and agricultural
buildings.
(3) The maximum amount of assistance for solar pool heating systems
shall be $12,500 or 40 percent of the improvement costs, whichever is
less, for commercial buildings.
(4) The maximum amount of assistance for passive solar space cooling
systems shall be $5,000 for one- to four-family residential buildings.
(5) In the case of solar energy systems (except for solar domestic
hot water systems and passive solar space cooling systems) which do not
benefit all dwelling units within a building, the maximum dollar amounts
listed above shall be reduced by the percentage of dwelling units in the
building which do not benefit from the solar energy system. The number
of dwelling units in a building is determined using the definitions
contained in 1800.3.
(6) If more than one application for assistance is submitted by
eligible applicants in connection with a solar energy system which
benefits more than one dwelling unit, the aggregate financial assistance
for those applicants may not exceed the maximum amount of financial
assistance indicated in paragraphs (a) (1), (2), or (a)(3) of this
section, whichever is applicable.
(7) If more than one person is responsible for the cost of a solar
energy system, then the amount of financial assistance for a person
shall be based on the person's share of the total improvement cost.
(b) Energy saved. (1) For passive solar space heating systems in
one- to four-family residential buildings, the maximum amount of
assistance set forth in paragraph (a) of this section may be reduced on
a relative energy savings basis by use of (i) a climatic, or locational,
factor and a design performance factor as described in (b)(2) of this
section, or (ii) Btu's saved, as described in paragraph (b)(3) of this
section.
(2) The climatic factor takes into consideration the positive effect
of the passive system on heating degree days in the winter period as
well as the negative effect on cooling (air conditioning) requirements
in the summer period. The combination of those effects over a complete
year of heating and cooling determines the total net energy savings of
the system based on its geographic location. The climatic factor is
obtained by using the chart which appears as appendix I. The design
performance factor is based on the relationship between the solar
collection area of the passive system and the total gross heated living
floor area. This performance factor is determined by establishing the
ratio between the solar collection area in square feet (less a threshold
effective collection size of 40 square feet per dwelling unit) and the
gross heated living area floor space in square feet. A ratio of less
than zero provides a zero performance factor; for a ratio between 0.0
and 0.1, the factor is 10 times the ratio; for a ratio between 0.1 and
0.3, the factor is 1.0; for a ratio between 0.3 and 0.4, the factor is
4 minus 10 times the ratio; for a ratio more than 0.4, the factor is
again zero. The subsidy is determined by multiplying the maximum
subsidy set forth in paragraph (a) of this section by both the climatic
and performance factors.
(3) For passive solar space cooling systems in one- to four-family
residential buildings, solar space heating systems in multifamily
residential, commercial or agricultural buildings, and solar space
heating systems in one- to four-family residential buildings if climatic
and design performance factors are not used to determine the subsidy as
described in paragraph (b)(2) of this section, the amount of financial
assistance is $200 for each one million Btu reduction in annual energy
consumption as a result of the system.
(c) Interest prepaid. Where the assistance to be provided is in the
form of prepayment of interest, the amount of assistance shall not
exceed the amount of funds necessary to prepay all interest on any
portion of the loan financing eligible solar energy costs.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25017, June 14, 1985)
24 CFR 1800.49 Warranties.
(a) Statutory requirements. The Act requires that certain warranties
be provided in connection with solar energy systems purchased and
installed with financial assistance. The Act provides that:
(1) The manufacturer of a solar energy system shall, in connection
with such system, warrant in writing that the recipient, the contractor
who installs the system and the supplier of the system shall (for those
systems found within three years from the date of installation to be
defective due to materials, manufacture, or design) at a minimum be
entitled to obtain, within a reasonable period of time and at no charge,
appropriate replacement parts or materials;
(2) The supplier of such system shall, in connection with such
system, provide, at a minimum, to the recipient, a warranty equivalent
to that required under paragraph (a)(1) of this section; and
(3) The contractor for the installation of such system shall, in
connection with such system, warrant in writing that, at a minimum, any
defect in materials, manufacture, design, or installation found within
one year from the date of installation shall be remedied without charge
and within a reasonable period of time.
(b) Manner of compliance. In all cases, a manufacuter's warranty for
materials, manufacture and design and a contractor's warranty for
installation must be provided. Suppliers or contractors may provide
their own warranties for materials, manufacture and design in addition
to, but not instead of, the manufacturer's warranty. However, suppliers
and contractors are not required to provide separate warranties which
duplicate the manufacturer's warranty covering defects in materials,
manufacture or design, if they ensure that all rights under a
manufacturer's warranty complying with paragraphs (a)(1) and (c) of this
section have been fully assigned and are fully enforceable by the
recipient. A contractor would still be required to provide a separate
warranty as to installation. The financial institution must receive
evidence acceptable to it that the warranty requirements of this section
are satisfied. A contractor's or supplier's certification may be
accepted as such evidence. A recipient's certification may not be
accepted as such evidence by itself.
(c) Warranty terms. A warranty must comply with the applicable
statutory requirements set forth in paragraph (a) of this section, but
may be limited to ''covered products'' as defined in 1800.3 of this
part. A warranty may require that a recipient give notice of a defect
within a reasonable time (not less than 30 days) after discovery of such
defect by the recipient. Any replacement parts or materials provided
under any warranty must be provided at the site of installation without
charge for transportation and (if a contractor installed the original
parts or materials) must be installed without charge by the contractor.
(d) Other law. This section shall not be deemed to relieve a
warrantor under this section from full compliance with Federal and State
law applicable to warranties, except to the extent that such law is
inconsistent with the requirements of this section.
24 CFR 1800.51 Limitations on financial assistance by utilities.
No financial assistance shall be provided under this part by a
utility for the purchase and installation of a solar energy system in a
newly constructed building.
24 CFR 1800.53 Limitation on assistance to residents of housing
cooperatives.
Financial assistance may be provided to residents of housing
cooperatives only if the cooperative corporation has given prior written
consent to the resident for installation of a solar energy system.
24 CFR 1800.55 Standards.
If financial assistance is in connection with a loan to a purchaser
of a newly constructed or substantially rehabilitated one- to
four-family or multifamily residential building with any solar energy
system, the recipient must provide certification that the building meets
or exceeds the standards contained in Paragraph 607-3, Building
Insulation, of the HUD Minimum Property Standards for One and Two Family
Dwellings, 4900.1, or Multifamily Housing, 4910.1, as appropriate. If
the financial assistance is in connection with a loan to a purchaser of
a newly constructed commercial or agricultural building with a solar
energy space heating system, the purchaser must provide certification to
the financial institution that the building meets the minimum insulation
requirements of ASHRAE Standard 90A-1980 (Energy Conservation in New
Building Design) or any replacement.
24 CFR 1800.55 Subpart D -- Energy Conservation Assistance
24 CFR 1800.61 General.
This subpart sets forth the conditions and requirements that are
applicable only to financial assistance for energy conservation
measures.
24 CFR 1800.63 Eligible recipients.
(a) General. Subject to the provisions of this section, an owner of,
or a tenant in, a one- to four-family or multifamily residential,
commercial or agricultural building who purchases and installs energy
conservation measures in such building with the proceeds of a loan shall
be eligible to receive financial assistance in connection with such
loan. An owner of, or tenant in, a one- to four-family residential
building and a tenant in a multifamily residential building who
purchases and installs energy conservation measures in such building
shall be eligible to receive financial assistance in the form of a
grant. All buildings in which energy conservation measures are
installed must have been completed before January 1, 1980.
(b) Income limitations -- grants. In order to receive financial
assistance in the form of a grant, a recipient must be an individual
whose family has an annual income not in excess of 80 percent of the
median area income.
(c) Income limitations -- loan subsidies. In order to receive
financial assistance in the form of reduction of principal or prepayment
of interest:
(1) An owner-occupant of a one-family residential building, a tenant
in a one- to four-family or multifamily residential building, an
owner-occupant of a condominium dwelling unit, or a resident shareholder
of a housing cooperative corporation must be an individual whose family
has an annual income not in excess of 150 percent of the median area
income.
(2) A housing cooperative corporation or a residential condomium
association must be the owner of a cooperative or condominium with less
than five units in which no resident shareholder or member has a family
with an annual income in excess of 150 percent of the median area
income, or the owner of a cooperative or condominium with more than four
units which is located in a census tract in which the median income for
a four-person family does not exceed 150 percent of the median area
income for a four-person family.
(3) Except as provided in paragraphs (c)(1) and (c)(2) of this
section, an owner of a building shall not be subject to any income
requirement.
(4) An owner which is not an individual shall be treated as having a
family with an annual income in excess of 150 percent of the median area
income.
(d) Sales limitations. An owner of, or tenant in, a commercial or
agricultural building cannot have had gross annual sales of more than
$1,000,000 during the fiscal year of such owner or tenant preceding the
fiscal year in which an assisted loan is made.
(e) Owner-occupant. An owner of a commercial or agricultural
building must occupy the building in order to receive financial
assistance in connection with the building.
(f) Joint applications. (1) A joint owner of a dwelling unit or of a
building may apply for assistance individually, simultaneoulsy with
other joint owners in a single application, or simultaneously with joint
owners simultaneously by separate application. A tenant jointly renting
a dwelling unit or a building with other tenants may apply for
assistance individually, simultaneously with other tenants in a joint
application, or simultaneously with other tenants by separate
application.
(2) Spouses are not considered joint owners or tenants.
(3) If simultaneous separate applications are made by two or more
joint owners or by two or more joint tenants with respect to the same
building or dwelling unit, such applicants collectively may not receive
assistance which would exceed the maximum amount of assistance for which
the applicant with the lowest annual income would be eligible if such
applicant applied individually and did not share costs with anyone else.
(4) Each applicant in a joint application must be eligible under this
section. If a joint application is made, the average annual income of
all joint applicants shall be used for purposes of 1800.67(a). When
different family sizes are involved, the average size rounded up to the
nearest whole number should be used. The average annual income of joint
applicants when one or more is not an individual shall be considered in
excess of 150% of median area income.
(g) Assistance on behalf of others. (1) Any person may receive
financial assistance on behalf of an owner or tenant who would be
eligible to receive financial assistance, if such owner or tenant
consents to the arrangement in writing. Such owner or tenant must
comply with 1800.127(b), and must be reported to the Internal Revenue
Service pursuant to 1800.127(a). Such person shall be responsible for
compliance with all requirements of this part which would apply to the
owner or tenant if he or she had received the financial assistance.
(2) Such person may receive the financial assistance in the form of a
single grant in an amount equal to the sum of the grants which each
owner or tenant could have received. If the financial assistance is in
the form of reduction of principal or prepayment of interest, such
person may receive the financial assistance in connection with a single
loan in an amount equal to the sum of the amounts of financial
assistance which each owner or tenant could have received.
(h) Individually-metered tenants. A tenant in a residential building
for more than one family is eligible for financial assistance only if
the tenant will pay costs for space heating and cooling which are
measured by an individual meter after all the energy conservation
measures are installed.
(i) Public Housing Agencies. (1) A Public Housing Agency (PHA) which
owns one- to four-family or multifamily residential buildings may
receive financial assistance in connection with loans if all other
relevant requirements of this part are met.
(2) A PHA may receive a grant on behalf of any tenant in a PHA-owned
one- to four-family or multifamily residential building pursuant to
paragraph (g) of this section. A PHA may serve as a financial
institution and obtain payment directly from a State for such a grant,
or it may receive the grant from another financial institution.
(j) Cooperatives and condominiums. (1) When applying for assistance
under this subpart, an owner of a unit in a condominium and a
shareholder in a housing cooperative corporation are each regarded as
the owner of a one-family building, regardless of the number of units in
the condominium or cooperative. The principles stated in 1800.67(a)(2)
of this part do not apply. However, a tenant occupying a unit in a
condominium or housing cooperative corporation shall be treated the same
as a tenant in a rental building and the principles stated in
1800.67(a)(2) apply.
(2) When applying for assistance under this subpart, a condominium
association and a housing cooperative corporation are each regarded as
the owner of a building consisting of all units in the condominium or
cooperative.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25017, June 14, 1985)
24 CFR 1800.65 Eligible energy conservation measures.
(a) One- to four-family residential buildings. The following shall
be eligible energy conservation measures for one- to four-family
residential buildings, subject to paragraph (c) of this section:
(1) Caulking and weatherstripping,
(2) Furnace efficiency modifications including:
(i) Replacement burners, replacement furnaces, replacement boilers,
or any combination thereof, which increases the energy efficiency of the
heating system by at least 20%,
(ii) Devices for modifying flue openings which will increase the
energy efficiency of the heating system, and
(iii) Electrical or mechanical furnace ignition systems which replace
standing gas pilot lights,
(3) Clock thermostats or clock timers,
(4) Ceiling, attic, wall, floor, pipe, and duct insulation,
(5) Water heater insulation,
(6) Storm windows and doors, multiglazed windows and doors,
heat-absorbing or heat-reflecting window and door materials (including
films),
(7) Devices associated with load management techniques,
(8) Air-conditioning systems (not including heat pumps) provided
that:
(i) They are installed in buildings in areas which have 1,000 or more
average annual cooling degree days or meet some other reasonable basis
for eligibility as defined by a State and approved by the Bank and the
energy efficiency rating exceeds the average value of new air
conditioners, which shall be determined by the Bank and provided to
States, or
(ii) If they are replacement systems, they are also at least 20% more
energy efficient than the systems being replaced,
(9) Heat pumps which replace:
(i) Existing heat pumps, or
(ii) A combination of electrical resistance heating and air
conditioning,
(10) Heat pump water heaters in combination with or in replacement of
existing electrical resistance domestic water heaters,
(11) Water flow controllers,
(12) Conversion from master utility meters to individual meters, when
directly related to and undertaken with the installation of any of the
items specified in paragraphs (a) (2) through (11) of this section, and
(13) Energy audits (as included in the definition of ''improvement
cost'' in 1800.3 of this part).
(b) Other buildings. The following shall be eligible energy
conservation measures for multifamily residential buildings, commercial
buildings and agricultural buildings, if found to be cost-effective.
(1) Caulking and weatherstripping,
(2) The insulation of the building structure and any systems within
the building,
(3) Storm windows and doors, multiglazed windows and doors,
heat-absorbing or heat-reflecting window and door systems (including
films), glazing, reductions in glass area, and other window and door
system modifications,
(4) Automatic energy control systems,
(5) Equipment, associated with automatic energy control systems,
which is required to operate variable steam, hydraulic, and ventilating
systems,
(6) Furnace, or utility plant and distribution system, efficiency
modifications including:
(i) Replacement burners, replacement furnaces, replacement boilers,
or any combination thereof, which increases the energy efficiency of the
heating system by at least 20%,
(ii) Devices for modifying flue openings which will increase the
energy efficiency of the heating system, and
(iii) Electrical or mechanical furnace ignition systems which replace
standing gas pilot lights,
(7) Replacement or modification of a lighting system which increases
the energy efficiency of the lighting system without significantly
increasing the overall illumination of the building, including
daylighting dimmers (unless such increase in illumination is necessary
to conform to any applicable State or local law),
(8) Energy recovery systems which consist of equipment designed
primarily to recover building waste energy from sources such as
refrigeration or air conditioners for some useful purpose such as
heating water,
(9) Cogeneration systems and replacement or modification of
multifamily residential building water heaters,
(10) Air-conditioning systems (not including heat pumps) provided
that:
(i) The energy efficiency rating exceeds the average value of new air
conditioners, which shall be determined by the Bank and provided to
States, or
(ii) If they are replacement systems, they are at least 20% more
efficient than the systems being replaced.
(11) Water flow controllers (not including controllers for flow of
unheated water only),
(12) Conversion from master utility meters to individual meters, when
directly related to and undertaken with the installation of any of the
items specified in paragraphs (b) (2) through (11) of this section, and
(13) Energy audits (as included in the definition of ''improvement
cost'' in 1800.3).
(c) Limitations. An energy conservation measure listed in paragraph
(a) of this section shall not be eligible for assistance unless it has
been found to be cost-effective or unless it is one of the following
measures:
(1) Caulking and weatherstripping,
(2) Attic, pipe, and duct insulation,
(3) Water heater insulation,
(4) Devices for modifying flue openings located in conditioned living
space,
(5) Electrical or mechanical furnace ignition systems which replace
standing gas pilot lights,
(6) Clock thermostats or timers, or
(7) Water flow controllers.
(d) Mixed use buildings. In a building in which floor space is used
for both residential and other purposes, no special rules apply if the
building is a commercial or agricultural building or is a one- to
four-family or multifamily residential building in which at least 80
percent of the floor space is used for residential purposes. Otherwise,
energy conservation measures are eligible if they benefit the
residential portion of the building only or if the applicant is a
non-profit owner or tenant and the non-residential portion of the
building is used for purposes which, if extended throughout the
building, would qualify the building as a commercial or agricultural
building.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25017, June 14, 1985)
24 CFR 1800.67 Levels of assistance.
Financial assistance shall not exceed the least of any applicable
amounts determined under paragraphs (a) and (b) of this section.
(a) Fixed amount and percentage of costs. (1) The maximum amount of
assistance shall be determined according to the following chart (income
limits are applied to the annual income of the family of the owner or
tenant):
(2) In the case of energy conservation measures which do not benefit
all dwelling units within a building, any dwelling units in the building
which do not benefit from the energy conservation measures shall be
counted in determining the building type but shall not be counted in
determining maximum assistance. The number of dwelling units in a
building is determined using the definitions contained in 1800.3 of
this part.
(3) If more than one application for assistance is submitted by
eligible applicants in connection with energy conservation measures
which benefit more than one dwelling unit, the aggregate financial
assistance for those applicants may not exceed the maximum amount of
financial assistance indicated in paragraph (a)(1) of this section for
the number of units benefited.
(4) If more than one person is responsible for the cost of a measure
then the amount of financial assistance for a person shall be based on
the person's share of the total improvement cost.
(b) Interest prepaid. Where the assistance to be provided is in the
form of prepayment of interest, the amount of assistance shall not
exceed the amount of funds necessary to prepay all interest on any
portion of the loan financing eligible energy conservation measures.
(49 FR 9880, Mar. 16, 1984; 49 FR 12244, Mar. 29, 1984, as amended
at 50 FR 25018, June 14, 1985)
24 CFR 1800.69 Warranties.
(a) Basic requirement. (1) The contractor for the installation of
energy conservation measures shall, in connection with such measures,
warrant in writing that the recipient shall (for those measures found
within one year from the date of installation to be defective due to
materials, manufacture, design or installation) at a minimum be entitled
to obtain, within a reasonable period of time and at no charge,
appropriate replacement parts, materials or installation.
(2) If the energy conservation measures are not installed by a
contractor, the supplier must provide a warranty equivalent to that
required under paragraph (a)(1) of this section, except that the
supplier is not required to warrant against defective installation.
(b) Manner of compliance. In all cases, materials, manufacture and
design must be warranted. However, contractors or suppliers are not
required to provide separate warranties as to materials, manufacture and
design if they ensure that all rights under a manufacturer's or
supplier's warranty complying with paragraph (a) of this section have
been fully assigned and are enforceable by the recipient. (A contractor
would still be required to provide separate warranty as to
installation.) The financial institution must receive evidence
acceptable to it that the warranty requirements of this section are
satisfied. A contractor's or supplier's certification may be accepted
as such evidence in all cases. A recipient's certification may be
accepted as such evidence by itself only if there is no contractor.
(c) Additional warranty terms. A warranty may require that a
recipient give notice of a defect within a reasonable time (not less
than 30 days) after discovery of such defect by the recipient. Any
replacement parts or materials must be provided at the site of
installation without charge for transportation and (if a contractor
installed the original parts or materials) must be installed without
charge by the contractors.
(d) Other law. This section shall not be deemed to relieve a
warrantor under this section from full compliance with Federal and State
law applicable to warranties, except to the extent that such law is
inconsistent with the requirements of this section.
(e) No conflict with RCS requirements. Except in areas of a State
described in the second sentence of 1800.77 of this part, warranties in
compliance with the requirements of Section 542 of the Energy Security
Act (42 U.S.C. 8213) and applicable regulations shall be considered in
compliance with this section as applied to the purchase and installation
of energy conservation measures.
(f) Exceptions. No supplier's warranty is required for an energy
conservation measure listed in 1800.65(a) (1), (4), (5), or (11) or
1800.65(b) (1), (2), or (11) of this part, in a State which has made a
written determination based on evidence that neither manufacturers' nor
suppliers' warranties for such measures meeting the requirements of this
section are generally available in the State and that the quality of the
design, materials and manufacture for such measures is likely to be
adequate in the absence of such warranties. Warranties from contractors
will still be required in all cases where installation is by
contractors.
24 CFR 1800.71 Limitation on assistance to tenants.
Financial assistance may be provided to tenants only if the owner of
the tenant's building or dwelling unit has given written consent to the
tenant for installation of the energy conservation measures.
24 CFR 1800.73 Limitation on assistance to residents of housing
cooperatives.
Financial assistance may be provided to a resident of housing
cooperatives only if the cooperative corporation has given prior written
consent to the resident for installation of energy conservation
measures.
24 CFR 1800.75 Minimum expenditures for energy conservation measures.
The total improvement cost for energy conservation measures purchased
and installed with the assistance of a grant must exceed $250.
24 CFR 1800.77 Contractors and suppliers.
All contractors and suppliers who install or supply energy
conservation measures for which assistance is provided in the form of a
grant must appear on a list of approved contractors and suppliers which
meets the requirements of section 213(a) of the National Energy
Conservation Policy Act, 42 U.S.C. 8214. This requirement shall not
apply in areas of a State which are not served by a public utility
described in section 211(a) of the National Energy Conservation Policy
Act, 42 U.S.C. 8212, or areas where such list has not been made public
by a public utility under section 215(a)(3) of the National Energy
Conservation Policy Act, 42 U.S.C. 8216, or by the Secretary of Energy.
(50 FR 25018, June 14, 1985)
24 CFR 1800.79 Residential energy audit information.
Financial institutions must inform applicants for financial
assistance for energy conservation measures in one- to four-family or
multifamily residential buildings, no later than the time that the
application is submitted, of the availability of energy audits.
24 CFR 1800.79 Subpart E -- Program Operation
24 CFR 1800.91 Cooperative agreements with States.
The financial assistance program of the Bank is implemented through
States. Participating States will enter into cooperative agreements
with the Bank which will form the legal framework for Bank/State
relationships during program implementation. In addition to the matters
covered in other sections of this subpart E, the cooperative agreements
will cover such matters as the allocation and obligation of funds for
the State, the responsibilities of the State for the administration of
its approved programs, Federal requirements applicable to the
administration of its approved programs, and procedures covering
resolution of any disputes between the Bank and a State, suspension or
termination of a State's participation in programs of the Bank, and
program closeout.
24 CFR 1800.93 Program participants.
(a) Current State participants. Any State with a current cooperative
agreement (one which is legally effective on the date of any tentative
allocations under 1800.95 may elect to receive any additional funds
allocated under 1800.95 on the basis of programs approved in its
cooperative agreement. To receive any new allocation of funds, a State
must complete and return to the Bank a Bank-prepared cooperative
agreement amendment obligating such additional funds to the State within
a 30-day period from the time such amendment is provided by the Bank.
(b) States without cooperative agreements. A State without a current
cooperative agreement with the Bank may become a new participant in the
Bank program for any allocation of funds under 1800.95 by submitting a
written program proposal which is accepted by the Bank. The Bank
publishes, from time to time in the Federal Register, a Notice of
Funding Availability which should be referred to for guidance as to the
eligibility of a State and the contents of the program proposal.
(c) Local participation. (1) A State may elect to permit local
participants to assume responsibility for implementation of local
programs within the State, as long as the State retains responsibility
for:
(i) Designation of local participants,
(ii) Allocation of funds within the State, and
(iii) Requests to the Bank for changes to a State program or its
cooperative agreement with the Bank.
(2) ''Local participants'' may include metropolitan cities and urban
counties as defined in 570.3 of this title, other subdivisions of a
State empowered by State law to perform the function, and Indian tribes.
Such subdivisions may include units of general local government,
special purpose districts and multi-county districts as appropriate in
each State, provided that any such subdivisions provide the State with
documentation of the authority for the subdivision to perform the
required functions in implementing this part under the laws of the
State. Any other entity may be a local participant if approved by the
Bank.
(3) A local participant which exercises a function or responsibility
reserved to a State in this part shall be considered a State, to the
extent of such function or responsibility. A State which designates
local participants must retain ultimate responsibility for ensuring that
State programs operate in accordance with the requirements of this part
unless otherwise specified in its cooperative agreement.
(d) Indian tribes. (1) No more often than once in each Fiscal Year,
the Bank may designate one entity as Indian Assistance Coordinator (IAC)
for a period of at least one year. An IAC is responsible for ensuring
that members of Indian tribes have the opportunity to receive financial
assistance to the maximum extent permitted by funds available to the
IAC. The IAC must:
(i) Be capable of adequately and fairly representing the interests of
Indian tribes and their members,
(ii) Have experience in representing the interests of Indian tribes
and their members,
(iii) Have experience in dealing with Federal financial assistance
programs, preferably programs dealing with housing, solar energy, or
energy conservation,
(iv) Have adequate staff and financial resources to perform the
functions of a State under this part, and
(v) Meet all other requirements prescribed by the Bank for
administering a program under this rule as for other State entities.
(2) An IAC was initially designated on the basis of a written program
proposal and statement of qualifications submitted to the Bank in
response to a competitive solicitation announced in the Federal
Register. Whenever an IAC designation expires, the IAC may be
redesignated without competitive solicitation or a new competitive
solicitation may be announced in the Federal Register. Tentative
allocations of funds for an IAC shall be determined in the same manner
as for States under 1800.95(a) except that Factor ''A'' shall be
determined by the Indian population of the United States divided by
United States household size and then multiplied by energy consumption
per United States household. Values shall be given to Factor ''B'' on
the basis of a particular IAC's program performance only if the
resulting tentative allocation is expected to be obligated to the same
IAC without an intervening competitive solicitation. At the discretion
of the Bank, such allocation may be obligated to the then-designated IAC
by amendment of its cooperative agreement, obligated by a cooperative
agreement with a new IAC designated after competitive solicitation, or
reallocated pursuant to 1800.98. Except for designation and allocation
of funds, the IAC shall be treated as a State for purposes of this part.
(3) This paragraph does not authorize States to discriminate against
members of Indian tribes. States should ensure that members of Indian
tribes in the State are able to receive financial assistance through the
State program, regardless of the scope of any approved IAC program.
However, a State may coordinate its program with any approved IAC
program.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25018, June 14, 1985)
24 CFR 1800.95 Allocation of funds.
(a) Tentative allocation. (1) Each Fiscal Year in which funds are
legally available to the Bank for obligation, a tentative allocation
shall be made to each State with a cooperative agreement and all other
States which have submitted acceptable program proposals pursuant to
1800.93. The tentative allocation shall be made during February or
August at the Bank's option, but not both, depending on availability of
funds and the need for additional funds by States to sustain program
activities. In a Fiscal Year in which available funds are derived only
from recapture pursuant to 1800.97, the tentative allocation shall be
made in the same manner as described in this section but only to States
with Cooperative Agreements that have expended Bank funds for subsidies.
(2) The amount of funds allocated to each State is based on a score
which is the product of two factors, provided that the tentative
allocation of funds for each new State participant, if made, shall be
not less than $120,000. The tentative allocation for each current State
participant shall be not less than $20,000 unless there are insufficient
funds available in which case only those States receiving a tentative
allocation of at least $20,000 on the basis of Factor A and Factor B
scores will be eligible to receive funds. Where total funds available
for allocation are less than $40,000, the eligible State receiving the
highest score shall be awarded the available funds and if not accepted,
the funds shall be awarded in turn to the next highest scoring eligible
State which agrees to accept the funds. The score for each State is
divided by the sum of the scores of all States and the resulting ratio
is multiplied by the available funds to provide a tentative allocation.
(i) Factor ''A'' is determined by the sum of:
(A) The sum of 50 percent of the number of households in the State
with income at 80 percent or less of the median household income for the
State, 30 percent of the number of households with incomes greater than
80 percent of the median up to 150 percent of the median and 20 percent
of the number of households with income greater than 150 percent of the
median, normalized so that the largest value is equal to 100 with all
other ratios proportionately less with a weight of 0.5; and
(B) The average amount of energy consumed per household for the
State, normalized so that the largest resultant value is equal to 100
with a weight of 0.5.
(ii) Factor ''B'' is equal to one for a new participant pursuant to
1800.93(b) and otherwise is determined by the sum of one plus:
(A) The annual Btu savings for subsidized energy conservation
measures and solar energy systems per dollar of Bank subsidy expended
normalized so that the highest value equals 5 with a weight of 0.1;
(B) The calculation of the total dollar investment made in subsidized
measures and systems per dollar of Bank subsidy expended normalized so
that the highest value equals 5 with a weight of 0.1;
(C) The calculation of the ratio of dollars of Bank subsidy expended
to the total funds obligated to a State by the cooperative agreement
normalized so that the highest value equals 5 with a weight of 0.5; and
(D) The calculation of the ratio of dollars of Bank subsidy expended
to the total funds expended by all program participants normalized so
that the highest value equals 5 with a weight of 0.3.
(iii) ''Investment'' as used in paragraph (a)(2)(ii)(B) of this
section means the improvement cost for a measure or system when used as
the basis for calculating a subsidy; otherwise it means the estimated
system cost in the case of solar space heating or cooling systems.
(iv) The value for Factor ''B'' shall be reduced only if Bank
subsidies and other Federal subsidies are provided for the purchase and
installation of the same energy conservation measures or solar energy
systems, with a minimum reduction of 5 percent and reductions at the
rate of 5 percent for each 10 percent of total dollars of Bank subsidy
which are expended for measures or systems which also are subsidized by
other Federal subsidies to a maximum reduction of 50 percent.
(v) Factor ''B'' shall represent cumulative performance based on the
entire period of State participation in the Bank program or the
preceding 24 months, whichever period is less. The information needed
to calculate the value for Factor ''B'' shall be taken from the State
semi-annual reports due pursuant to 1800.107. If any such report has
not been received by the Bank from a State, no value will be given for
paragraphs (a)(2)(ii) (A) and (B) of this section; in such case
paragraphs (a)(2)(ii) (C) and (D) of this section shall be based on
information available to the Bank through its fund transfer system with
a 50 percent reduction applied to Factor B thus calculated for any State
not reporting.
(b) Obligation. The Bank shall inform each State of its tentative
allocation. Unless a State elects not to receive its tentative
allocation, the full amount of the State's tentative allocation shall be
obligated to a State by the cooperative agreement or an amendment to it,
provided that if the Bank has issued to a State a notice of intent to
recapture funds under 1800.97(b) the Bank shall have no duty to
obligate any additional funds to the State unless the violation is
resolved to the satisfaction of the Bank.
(50 FR 25018, June 14, 1985)
24 CFR 1800.97 Recapture of funds.
Each cooperative agreement shall contain:
(a) A requirement that the State obligate all funds within one year
of the date funds are obligated to the State by the Bank, or by the last
date the funds are available under the terms of the applicable
appropriation, whichever is later, to avoid recapture of funds by the
Bank, and
(b) A provision permitting the Bank to recapture all unobligated
funds from a State at any time following notice to the State of
violation of this part by a State, serious or persistent violations (as
determined by the Bank) of a cooperative agreement by a State, or
serious or persistent violations (as determined by the Bank) of this
part by local participants, financial institutions or recipients within
the State.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25019, June 14, 1985)
24 CFR 1800.98 Reallocation of funds.
Any funds which become available for reallocation after a tentative
allocation and while they remain legally available for obligation shall
be included in the next tentative allocation. A special reallocation
may be made for any such funds which would cease to be legally available
for obligation prior to the next anticipated tentative allocation and
any special reallocation shall be in a manner as described in 1800.95
using the most recent information available to the Bank. Funds
available for reallocation include funds tentatively allocated under
1800.95 to a State that does not elect to receive such funds or for an
IAC when the Bank determines not to obligate such funds and funds
recaptured under 1800.97.
(50 FR 25019, June 14, 1985)
24 CFR 1800.99 Authorized expenditures.
(a) Permissible uses of funds. Funds allocated by the Bank to States
for implementing financial assistance programs shall be expended only
for payments to financial institutions which have provided financial
assistance in accordance with this part, or for administrative expenses
or promotional expenses.
(b) Administrative expenses. Funds received from the Bank may be
used for payment of administrative expenses incurred in connection with
an approved State program, to the extent authorized in the cooperative
agreement. All funds obligated to a State prior to October 1, 1983,
which are used for administrative expenses must be matched with
resources other than Bank funds, so that the cumulative amount of such
funds drawn from the Bank for administrative expenses by a State or
other administrative entity does not at any time exceed fifty percent of
the cumulative amount of administrative expenses. For other funds, the
Bank shall authorize the amount requested by the State without any
matching requirement, subject to the following:
(1) No more than 12 percent of the amount of funds obligated to a
State during a fiscal year, or $20,000 of such funds, whichever is
greater, shall be authorized for administrative expenses; and
(2) If the State is not the sole administrative entity in connection
with an approved State program, no more than one-half of the maximum
amount of funds described in paragraph (b)(1) of this section may be
used for payment of administrative expenses incurred by the State, and
any remaining funds authorized for administrative expenses may be used
only for payment of administrative expenses of other designated
administrative entities within the State.
A State may not draw from the Bank more than one-half of the funds
authorized for administrative expenses until the first grant or
subsidized loan has been made in the State, and subsequently the
cumulative amount of administrative expenses drawn from the Bank shall
not exceed 50% of authorized administrative expenses multiplied by a
factor equal to one plus the ratio of the cumulative amount of funds
drawn to pay for subsidies to the cumulative amount of funds obligated
to a State for subsidies. This limitation on the amount of
administrative expenses available will expire on January 1, 1985.
Administrative expenses shall not include the purchase of nonexpendable
personal property (defined in attachment N to OMB Circular A-102,
''Property Management Standards'').
(c) Promotional expenses. Funds received from the Bank may be used
for payment of promotional expenses incurred in connection with an
approved State program, to the extent authorized in the cooperative
agreement. Promotional expenses may be incurred by the State and by any
other designated administrative entities in the State. The Bank will
not authorize payment of promotional expenses in excess of one percent
of the cumulative funds obligated to the State.
(d) Principles for determining allowable expenses. Administrative
and promotional expenses must be allowable under the principles and
standards established in OMB Circular A-87, ''Cost Principles for State
and Local Governments'', or A-122, ''Cost Principles for Non-profit
Organizations'', as applicable.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25019, June 14, 1985)
24 CFR 1800.101 Distribution of funds.
There is no predetermined distribution of funds for energy
conservation measures or solar energy systems nor for the type of
financial assistance to be made. The approval of funding levels and
specific programs for States by the Bank shall constitute an initial
distribution of funds for the energy conservation measures or solar
energy systems and the type of financial assistance described in the
approved State programs as contained in the cooperative agreement. A
State may make a redistribution of approved funds for different eligible
measures or types of financial assistance only with specific written
approval of the Bank and amendment of the cooperative agreement.
24 CFR 1800.103 Selection of financial institutions.
A State will select the financial institutions which will provide
financial assistance within the State. A State may serve as a financial
institution itself as long as it qualifies under the definition set
forth in 1800.3. A State not serving as a financial institution itself
may nevertheless perform any functions prescribed for a financial
institution by this part or a cooperative agreement to the extent agreed
by the financial institution, except for the actual making of a grant or
subsidized loan.
(50 FR 25019, June 14, 1985)
24 CFR 1800.105 State discretion.
A State may establish maximum levels of financial assistance which
are lower than the maximum levels set forth in this part. A State may
also restrict the lists of eligible solar energy systems and energy
conservation measures set forth in this part.
24 CFR 1800.107 Reporting and recordkeeping requirements.
(a) Semi-annual State reports. Each State shall submit reports to
the Bank within 30 days of the six month periods ending June 30 and
December 31 beginning with the first such period in which a cooperative
agreement is executed and continuing until program closeout. The
reports shall cover, as a minimum, the following:
(1) A summary of the overall program for the reporting period and
overall results to date, including financial reports required by
Attachment H of OMB Circular A-102, ''Uniform Administrative
Requirements for Grants-in-Aid to State and Local Governments'';
(2) Problems encountered and actions taken to resolve them;
(3) Acceptance/objections by industry, local governments, financial
institutions, and the public;
(4) The numbers of applicants for and recipients of loans and grants
by income category and type of building;
(5) Total costs of energy conservation and solar measures implemented
and amounts of subsidies by type of measure;
(6) The estimated energy savings by income category of recipients,
building type and type of measure;
(7) The cost-effectiveness of the program in terms of the percent of
Bank funds for subsidies expended in connection with some other form of
Federal subsidy, administrative costs, promotional costs, leveraging of
funds, energy savings in terms of dollars per barrel of oil equivalent
and other measures as may be appropriate; and
(8) Evaluation of the program in terms of achieving scheduled
milestones and events and in meeting program goals and objectives.
(b) Retention of records by States. Each State shall retain all
records pertaining to use of funds received from the Bank, including all
reports received from financial institutions, for a period of three
years from the date of submission of the semi-annual State report for
the period covered by such records, except that if any litigation, claim
or audit is started before the expiration of the three-year period, all
related records shall be retained for three years after final
disposition of the litigation, claim or audit.
(Approved by the Office of Management and Budget under control number
2504-0001)
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25019, June 14, 1985)
24 CFR 1800.109 Manner of payment.
Payments to States will be made by electronic funds transfer whenever
possible, letter of credit, or other means, pursuant to the cooperative
agreements in compliance with the Intergovernmental Cooperation Act (42
U.S.C. 4201 et seq.) and Treasury Circular No. 1075 (31 CFR part 205).
States may receive payments for administrative and promotional expenses
only after they have been incurred. States may receive other payments
only in amounts necessary to pay financial institutions for financial
assistance in connection either with energy conservation measures or
solar energy systems which have been purchased, or with loans which have
been closed or for which a bona fide loan commitment has been made if
energy conservation measures or solar energy systems will be installed
within 60 days of loan closing or 90 days of the loan commitment.
States shall utilize appropriate procedures to minimize the time
elapsing between the transfer of funds by the Treasury to the State and
the disbursement of funds by the State.
(50 FR 25019, June 14, 1985)
24 CFR 1800.109 Subpart F -- Miscellaneous
24 CFR 1800.120 Conflict of interest.
No financial institution and no person who is an employee, agent,
consultant, officer, or elected or appointed official of a State, local
participant, financial institution, or public or private entity acting
as agent of any of the foregoing, and who is in a position to
participate in a decisionmaking process or gain inside information with
respect to expenditures for administrative or promotional expenses or
assistance for eligible activities under this part, may obtain a
personal or financial interest in or benefit from such expenditures or
assistance, or have an interest in any contract, subcontract or
agreement with respect thereto, or the proceeds thereunder, either for
themselves or those with whom they have family or business ties, during
their tenure. This paragraph does not restrict financial assistance to
a publicly-owned building or to a person with respect to a single
dwelling unit which is the person's principal residence.
(50 FR 25019, June 14, 1985)
24 CFR 1800.121 Penalties and remedies.
(a) General. Any person (including an applicant or financial
institution) who knowingly makes any false statement or misrepresents
any material fact with respect to any financial assistance applied for
or provided under this part, or fails to make any disclosure or
statement required by this part, is subject to a fine of notmore than
$10,000, or imprisonment for not more than one year, or both, for each
offense. Each false statement, material misrepresentation or failure to
make a required disclosure or statement shall be a separate offense.
(b) Penalties in this section not exclusive. The penalties provided
for in paragraph (a) of this section shall be in addition to any civil
or criminal fines or penalties applicable under law, including title 18
of the United States Code and any other applicable provisions of
Federal, State or local law.
(c) Other relief. Nothing in this section shall limit any rights of
the Bank to recover funds from financial institutions, recipients or any
other persons or pursue any other remedies available under law.
24 CFR 1800.123 Retention of records by financial institutions and
recipients.
(a) Financial institution. Financial institutions (including States
acting as financial institutions) shall retain all records related to
applications for financial assistance for a period of three years from
the date the financial assistance is provided (or the date of
application, if never provided).
(b) Recipients. Recipients shall retain all records pertaining to
the application, the assisted loan or grant, the solar energy system or
energy conservation measures for which the loan or grant was sought, and
warranties for a period of three years after the financial assistance is
provided.
(Approved by the Office of Management and Budget under control number
2504-0001)
24 CFR 1800.125 Audit.
(a) Federal audits. The Bank, the HUD Inspector General, the
Comptroller General of the United States, or any duly authorized
representative, shall have access to all records required to be retained
by this part or by any agreement with the Bank for the purpose of audit
or other examinations or copying.
(b) State audits. HUD audit requirements in 24 CFR part 44 and OMB
Circular A-128 apply to States receiving funds under this part.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25020, June 14, 1985)
24 CFR 1800.127 Prohibition against tax credits and financial
assistance for same expenditure.
(a) Information provided to the Secretary of the Treasury. As
required by section 506(f) of the Act, the Bank shall provide to the
Secretary of the Treasury such information as the Secretary of the
Treasury determines is necessary to insure that no person is allowed for
the same expenditure both financial assistance under the Act and a
credit against Federal income taxes under 26 U.S.C. 38 (investment
credit) or 26 U.S.C. 23 (residential energy credit) except as permitted
by regulations or other legal interpretations of the Internal Revenue
Service. Except as otherwise directed by the Secretary of the Treasury,
the Bank intends to discharge this responsibility as well as the
information return requirements of 26 U.S.C. 6050D, where applicable, by
requiring either a State or financial institutions within a State to
submit Internal Revenue Service Form 6497 (''Information Return of
Nontaxable Energy Grants or Subsidized Energy Financing'') or any
replacement form duly approved by the Office of Management and Budget to
the appropriate office of the Internal Revenue Service.
(b) Information required from applicant. As a condition of financial
assistance, an applicant shall be required to provide to the financial
institution:
(1) All information which the Secretary of the Treasury determines is
necessary under paragraph (a) of this section and which is possessed by
the recipient, including the applicant's Social Security number or
taxpayer identification number and other information required for
Internal Revenue Service Form 6497 or any replacement form duly approved
by the Office of Management and Budget, and
(2) A certification that the applicant will not claim a Federal tax
credit under 26 U.S.C. 38 or 23 for amounts expended for the assisted
energy conservation measures or assisted solar energy system up to the
amount used as the basis for determining the financial assistance,
except as permitted by regulations or other legal interpretations of the
Internal Revenue Service. No certification shall be required from an
applicant for financial assistance for a building in Puerto Rico, Guam,
the Northern Mariana Islands, the Virgin Islands, American Samoa or the
Trust Territory of the Pacific Islands.
(Approved by the Office of Management and Budget under control number
2504-0001)
(50 FR 25020, June 14, 1985)
24 CFR 1800.129 No gross income.
The amount of any financial assistance provided under this chapter
shall not be included in the gross income of any recipient for purposes
of the Internal Revenue Code of 1954, 26 U.S.C. 1 et seq.
24 CFR 1800.131 No increase in basis.
No recipient shall receive any increase in basis under the Internal
Revenue Code of 1954, 26 U.S.C. 1 et seq., which is attributable to the
amount of any financial assistance provided under this chapter.
24 CFR 1800.133 Waiver of regulations.
Upon determination of good cause, the President of the Bank may waive
any provision of this part unless the provision is required by the Act.
Each such waiver will be in writing and shall be supported by
documentation of the pertinent facts and grounds for waiver. No person
shall have a right to a hearing in connection with any waiver or refusal
to waive by the President of the Bank.
24 CFR 1800.135 Applicability of general HUD regulations.
(a) Not subject to HUD regulations. The Bank is not subject to the
regulations of general applicability to HUD contained in this title and
issued by the Secretary of HUD or a delegatee of the Secretary, except
as required by the statute or Executive Order authorizing such
regulations, or except as such regulations are expressly adopted by the
Bank in this part or otherwise. Nothing in this section shall excuse
the Bank from compliance with statutes or Executive Orders.
(b) Regulations adopted. The following provisions of this title, as
they may be amended from time to time, are adopted by the Bank and shall
be binding as regulations governing the internal operations of the Bank,
except as they may be modified by the Board: part O (Standards of
Conduct), part 1 (Nondiscrimination), part 2 (Hearing Practice and
Procedures under part 1), part 7 (Equal Employment Opportunity), part 10
(Rulemaking: Policy and Procedures), part 15 (Production or Disclosure
of Material or Information), part 16 (Privacy Act), part 17
(Administrative Claims), part 20 (Board of Contract Appeals), part 44
(Non-Federal Governmental Audit Requirements), and part 50 (Procedures
for Protection and Enhancement of Environmental Quality). References to
''the Secretary'' in such provisions shall ordinarily be construed as
including the Board. In conjunction with its adoption of part 50 of
this title, the Bank adopts a categorical exclusion from requirements
for environmental clearances for approval of State programs and
allocation of funds to the States, as well, as for any actions taken by
States or financial institutions in accordance with approved State
programs.
(c) Future HUD regulations. The President of the Bank is authorized
to subject the Bank to any regulations of general applicability to HUD
which are added to this title in the future, by issuing a notice in the
Federal Register to that effect.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25020, June 14, 1985)
24 CFR 1800.137 Other Federal requirements.
(a) General. Financial assistance shall be provided by financial
institutions in compliance with all applicable Federal statutes and
regulations, as they may be amended from time to time including, but not
limited to, those cited in this part and those generally applicable to
''Federal financial assistance''.
(b) Non-discrimination. Title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d-1) and part 1 of this title, section 504 of the
Rehabilitation Act of 1973 as amended (42 U.S.C. 701 et seq.), and any
implementing HUD regulations adopted by the Bank, and the Age
Discrimination Act of 1975 as amended (42 U.S.C. 6101 et seq.), and any
implementing HUD regulations adopted by the Bank apply to the provision
of financial assistance under this part. Certain aspects of the Bank's
programs are subject to title VIII of the Civil Rights Act of 1968 (42
U.S.C. 3601 et seq.) and Executive Order 11063, and any regulations
under these provisions.
(c) Historic preservation. No financial assistance shall be provided
in connection with any energy conservation measure or solar energy
system with respect to any district, site, building, structure or object
included in or eligible for inclusion in the National Register
maintained by the Secretary of the Interior under 16 U.S.C. 470a as
determined by the State or a financial institution, unless: (1) Such
financial assistance is provided in compliance with the Bank's initial
Memorandum of Agreement with the Advisory Council on Historic
Preservation, or any subsequent such Memorandum of Agreement, or (2)
such financial assistance is in connection with an assistance program of
a Federal agency other than the Bank for which the other Federal agency
or a recipient of assistance under title I of the Housing and Community
Development Act of 1974 (42 U.S.C. 5301 et seq.) or section 17 of the
United States Housing Act of 1937 (42 U.S.C.1437o) has complied with the
procedures of the Advisory Council on Historic Preservation set forth in
36 CFR part 800 or (in the case of Urban Development Action Grants) 36
CFR part 801.
(d) Special flood hazard areas and wetlands. In order to carry out
the Federal policies stated in Executive Orders 11988 (''Floodplain
Management'') and 11990 (''Protection of Wetlands''), no financial
assistance shall be provided in connection with a newly constructed
building located in wetlands or in connection with any building located
in an area that has been identified by the Federal Emergency Management
Agency as having special flood hazards, unless such financial assistance
is in connection with as assistance program of a Federal agency other
than the Bank for which the Federal agency or a recipient of assistance
under title I of the Housing and Community Development Act of 1974 (42
U.S.C. 5301 et seq.) or section 17 of the United States Housing Act of
1937 (42 U.S.C. 1437o) has complied with the procedures set forth in
Executive Order 11988 or 11990. The preceding sentence shall not
restrict the providing of financial assistance in compliance with any
HUD regulations implementing Executive Orders 11988 and 11990 if such
regulations have been adopted by the Bank pursuant to 1800.135(c)
(e) Flood insurance purchase requirements. No financial assistance
shall be provided in connection with any building located in an area
that has been identified by the Federal Emergency Management Agency as
having special flood hazards unless the community in which the area is
situated is participating in the National Flood Insurance Program and
the regulations thereunder (44 CFR parts 59-79) or less than a year has
passed since FEMA notification regarding such hazards, and insurance on
the structure is obtained in compliance with section 102(a) of the Flood
Disaster Protection Act of 1973 (Pub. L. 93-234, 42 U.S.C. 4001 et
seq.).
(f) Coastal barriers. No financial assistance shall be provided in
connection with any building located in an undeveloped coastal barrier
(as defined in the Coastal Barriers Resources Act, 16 U.S.C. 3501 et
seq.).
(g) OMB Circular A-102. A State shall comply with the requirements
of Attachments G, H, J, L, N and O of OMB Circular A-102 and shall be
regarded as a grantee for the purposes of such requirements. The
cooperative agreement required by 1800.91 may clarify the requirements
as applied to the financial assistance program of the Bank.
(h) Lead-based paint. Lead-based paint (as defined in 35.61 of this
title) shall not be used in connection with the installation of energy
conservation measures or solar energy systems in one- to four-family or
multifamily residential buildings. No financial assistance shall be
provided for the purchase or installation of energy conservation
measures or solar energy systems containing lead-based paint in one- to
four-family or multifamily residential buildings. No financial
assistance shall be provided for the purchase of any newly constructed
or substantially rehabilitated one- to four-family or multifamily
residential building containing lead-based paint.
(i) Other laws. Financial institutions shall ensure that all
financial assistance is provided in accordance with the following
statutes and regulations to the extent applicable:
(1) Truth-in-Lending Act (15 U.S.C. 1601 et seq. and 12 CFR part 226
(Regulation Z)).
(2) Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2601 et
seq. and part 3500 of this title).
(3) Equal Credit Opportunity Act of 1976 (15 U.S.C. 1691 et seq. and
12 CFR part 202).
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25020, June 14, 1985)
24 CFR 1800.137 Pt. 1800, App. I
24 CFR 1800.137 Pt. 1800, App. II
24 CFR 1800.137 Appendix II to Part 1800 -- Procedure for Calculating
Subsidy and Reduced Interest Rate on Prepayment of Interest Loan
Assistance
I. Energy conservation measures and retrofit solar energy systems.
A. Determine amount of maximum subsidy based on recipient (borrower)
income eligibility and limitation based on cost-effectiveness of
measures as per 1800.47 and/or 1800.67 as appropriate.
B. Category 1 loan: A predetermined interest rate reduction below
prevailing market rate is to be made (e.g., 10% versus 15% conventional
rate).
1. Subtract finance charge of loan at the reduced interest rate from
the finance charge at the conventional rate.
2. Find the growth factor per dollar using monthly compounding
financial tables at the Bank authorized discount rate of 60% of
conventional interest rate, as per 1800.17(b), rounding up to the
nearest 0.25 percentage increment, for the loan repayment term.
3. Divide the amount from step B.1 by the growth factor in step B.2
above.
4. If the maximum subsidy amount available is equal to or greater
than the amount in step B.3 above, then the step B.3 amount is the
amount of the subsidy to be permitted. If the maximum subsidy amount
available is less than the step B.3 amount, this Class loan cannot be
made as there is insufficient subsidy available to ''buy-down'' the loan
to 10%. Use Category 2 loan procedures.
C. Category 2 loan: Determine interest rate reduction based on
amount of subsidy available as per I.A above.
1. Find the growth factor per dollar using monthly compounding
financial tables at the Bank authorized discount rate of 60% of
conventional interest rate, as per 1800.17(b), rounding up to the
nearest 0.25 percentage increment, for the loan repayment term.
2. Multiply the growth factor from step C.1 by the amount of subsidy
available.
3. Subtract the amount from step C.2 above from the finance charge of
the loan at the conventional interest rate.
4. If the result from step C.3 above is zero or greater, this result
is the net finance charge of the loan. If zero, the result is a zero
interest loan. If greater than zero, use a standard financial table or
formula to find the interest rate needed to yield the net finance charge
of the loan rounding up to the nearest percentage increment of interest
rate available. This establishes the reduced interest rate of the loan
and the entire amount of subsidy available is used.
5. If the result from step C.3 above is less than zero, meaning the
subsidy available exceeds the amount required to ''buy-down'' the
interest rate to zero percent, use the Category 1 loan procedure to
determine the subsidy amount for any specific interest rate reduction
down to zero percent.
II. Solar energy measures in buildings purchased.
Category 3 loan: Passive solar energy systems in new or
substantially rehabilitated residential buildings being financed.
1. Determine subsidy amount as follows:
A. For passive space heating systems:
1. Find climatic factor from Appendix I for specific site location of
building. If zero, subsidy is zero.
2. Find performance factor for specific building and passive system
as per 1800.47(b). If zero, subsidy is zero.
3. Multiply climatic and performance factors together and multiply
this product by the maximum subsidy available (e.g., $5,000 for a single
dwelling unit building).
Note: For the alternate passive solar space heating subsidy
determination procedure, or for active solar space heating or passive
space cooling, the subsidy would be $200 for each million Btu's
reduction in annual energy consumption for the building or dwelling
unit.
B. For water heating systems the subsidy is per 1800.47(a)(2). For
both a space and a water heating system the subsidy amounts would be
combined, subject to the appropriate maximum amount in 1800.47(a)(1).
2. Find the growth factor per dollar using monthly compounding
financial tables at the Bank authorized discount rate of 60% of
conventional interest rate as per 1800.17(b), rounding up to the
nearest 0.25 percentage increment, for the loan repayment term.
3. Multiply subsidy available from step 1 above by the growth factor
from step 2 above.
4. Subtract the amount from step 3 above from the finance charge of
the loan at the conventional interest rate. This is the net finance
charge for the loan.
5. Find the interest rate required to yield the net finance charge,
using a standard financial table or formula, rounding up to the nearest
percentage increment of interest rate available. This establishes the
reduced interest rate of the loan.
III. Portion of loan qualifies for a subsidy.
Category 4 loan: A portion of a loan is eligible for subsidized
financial assistance.
1. Consider the entire loan as having two parts where one part (part
A) represents the amount of the loan for which subsidized financial
assistance is available. Part B is the balance of the loan amount.
2. Determine the amount of subsidy and the finance charge reduction
for part A of the loan using procedures for Category 1, 2, or 3 loans,
as applicable.
3. Subtract the finance charge reduction in step 2 above from the
finance charge of the entire loan at the conventional interest rate.
This is the net finance charge of the entire loan.
4. Use a standard financial table or formula to find the interest
rate needed to yield the net finance charge of the loan rounding up to
the nearest percentage increment of interest rate available. This is
the reduced interest rate for the entire loan.
IV. Combined reduction of principal and prepayment of interest.
Category 5 loan.
1. Determine subsidy amount available as per 1800.47 and 1800.67 as
applicable.
2. Determine amount of subsidy to be used for reduction of principal.
This would normally be estimated based on the amount of interest
buydown desired as for a Category 1 loan.
3. Subtract the portion of the subsidy to be used as a reduction of
principal from the loan amount to obtain the amount to be repaid.
4. Using the amount to be repaid and the portion of the available
subsidy to be used toward prepayment of interest, calculate the loan
repayment terms and subsidy amount as per steps C.1 through C.5 for a
Category 2 loan.
5. The amount of Bank assistance to be provided is the sum of the
subsidy amounts determined by steps 2 and 4 above. An iterative process
may be needed to maximize use of an available subsidy if desired.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25021, June 14, 1985)
24 CFR 1800.137 Pt. 1800, App. III
24 CFR 1800.137 Appendix III to Part 1800 -- Prepayment of Interest
Loan Subsidy Examples
It is desired to offer loans for energy conservation measures at 10%
where the conventional rate is 15%. The applicant is the owner-occupant
of a single-family dwelling and is at the 80-100% of median income
level. Energy audit results show the cost of measures to be installed
is $2,000 and estimated energy cost savings per year is $500. The loan
will be for 5 years.
1. From the rule income limitation, the maximum level of assistance
is $875 or 35% of $2000, whichever is less. In this case the limit is
$700 (35% of $2000).
2. As per step B.1 of the procedure for Category 1 loans, the
difference in finance charges from 15% to 10% for $2000 is $304.80
($854.80 -- $550.00).
3. From step B.2, the discounted rate growth factor at 6.0% for 5
years is 1.3489.
4. Per step B.3, the amount of subsidy required to reduce the
interest rate to 10% is $225.96 ($304.80 divided by 1.3489). Since this
amount is within the allowable subsidy of $700, the $225.96 is the
subsidy amount.
It is desired to offer a reduced interest rate loan for energy
conservation measures using the full amount of the subsidy available.
The applicant is the owner-occupant of a single family dwelling and is
at 140% of median income level. Energy audit results show the estimated
cost of measures to be installed is $1,500 and the estimated energy cost
savings is $300 per year. The loan will be for 5 years where the
conventional interest rate is 16%.
1. From the interim rule income limitation, the maximum level of
assistance is $500 or 20% of $1,500, whichever is less. In this case,
the limit is $300 (20% of $1,500).
2. As per step C.1 of the procedure for Category 2 loans, the
discounted rate growth factor is 1.3828 (6.5 for 5 years). Applying
this to the allowable subsidy yields $414.84 ($300 x 1.3828) as per step
C.2.
3. Per step C.3, the net finance charge of the loan is $273.81
(normal finance charge of $688.65 -- $414.84).
4. Using financial tables per step C.4, the interest needed to yield
the net finance charge of the loan is found to be 7.0%, after rounding
up to the nearest .25% increment. The loan is thus reduced to a 7.0%
rate with a subsidy of $300.
Note: For a comparison of a reduction of principal type loan to
example 2, the principal would be $1200 at 16% interest for 5 years, the
monthly payment would be $29.18 and the total payment would be
$1,750.80.
A new single-family dwelling has a $70,000 sale price located in
Greensboro, NC. The solar collection area of the passive solar space
heating system is 354 square feet and the gross heated living floor area
is 1700 square feet. The passive system meets the five recognition
factors defined in the interim rule. The mortgage will be $56,000 for
30 years where the conventional interest rate is 14%.
1. The climatic factor for Greensboro, NC is 0.6 from Appendix I
based on a value of 3805 heating degree days and 916 cooling hours (from
Handbook of Air Conditioning Heating and Ventilating, Third Edition,
1979). The performance factor is 1.0 as per 1800.47(b). As per step
1.A of the procedures for Category 3 loans, the subsidy amount is $3,000
(0.6 $5,000 maximum subsidy available).
2. From step 2, the growth factor is 5.5894 (5.75% for 30 years).
3. The amount of interest prepaid, per step 3, is $16,768.20 ($3,000
5.5894).
4. The net finance charge of the loan, per step 4, is $166,099.80
($16,768.20 subtracted from $182,868, the finance charge at 14%).
5. Per step 5, the interest rate needed to yield the net finance
charge, after rounding up to the nearest 0.25 percent increment, is 13%.
Note: If the subsidy had been the maximum allowable of $5,000 (for a
more northerly climate) the interest rate would be 12.25%, the monthly
payment $586.83 and the total payments $211,258.80.
Also, for a comparison to a reduction of principal loan at a $3,000
subsidy ($53,000 at 14% for 30 years) the monthly payment would be
$627.98.
A home improvement loan for $3,500 is being made which includes
$1,500 of eligible energy conservation measures. The conditions for the
loan are otherwise as for example 2 of this appendix.
1. The amount of subsidy and the finance charge reduction for the
eligible portion of the loan is $300 and $414.84 respectively as
determined in example 2.
2. The finance charge of the entire loan at the conventional interest
rate is $1606.85 and the net finance charge of the entire loan is
$1192.01 ($1606.85^$414.84).
3. Using financial tables, the interest needed to yield the net
finance charge of the entire loan is 12.25% after rounding up to the
nearest 0.25% increment. The loan is thus reduced to a 12.25% rate with
a subsidy of $300.
It is desired to offer reduced interest rate loans at a level
competitive with rates of return available to individuals to discourage
early repayment of loans but yet make the total amount of assistance
attractive to individuals to encourage installation of energy conserving
measures. Accordingly, a situation as per Example 1 is desired with a
$500 reduction in principal in addition to the 10% reduced interest rate
loan.
1. Using Category 5 procedures, a $500 reduction in principal is
applied to the loan making the amount to be repaid $1,500.
2. The difference in finance charges from 15% to 10% for $1,500 is
$229.05 ($641.25 ^ $412.20).
3. The discounted rate growth factor is 1.3489 as per example 1.
4. The amount of prepayment of interest subsidy required to reduce
the interest rate to 10% is $169.80 ($229.05 divided by 1.3489).
5. The total amount of assistance to be provided is then $669.80
($500 + $169.80). Since this is within the allowable subsidy of $700,
the $669.80 is the subsidy amount.
Note: The calculations made for finance charges on loans and the
interest rates needed to yield specific finance charges are based on
tables in Thorndike's Financial Encyclopedia. Monthly payments are
rounded up to the next $0.01. This rounding up accounts for some
differences in the finance charges expressed in the calculations
compared to the total payments (principal plus finance charge) shown in
the summary following each example.
(49 FR 9880, Mar. 16, 1984, as amended at 50 FR 25021, June 14, 1985)
24 CFR 1800.137 PART 1895 -- BYLAWS
Authority: Title V of the Energy Security Act, the Solar Energy and
Energy Conservation Act of 1980, secs. 505 and 506, Pub. L. 96-294
(12 U.S.C. 3603 and 3604)
24 CFR 1895.1 Bylaws of the bank.
The bylaws of the Solar Energy and Energy Conservation Bank duly
adopted July 22, 1980 and hereby certified to, are set forth in the
following appendix.
Section 1.01 Name. The name of the Bank is the Solar Energy and
Energy Conservation Bank (the Bank).
Section 1.02 Functions, powers and duties. The Bank shall perform
the functions and exercise the powers and duties set forth in the Solar
Energy and Energy Conservation Bank Act (the Act), and any other
additional functions, powers and duties which may be prescribed by the
Board of Directors of the Bank (the Board).
Section 1.03 Principal office. The principal office of the Bank
shall be in the City of Washington, District of Columbia. Initially,
the principal office shall be in the Department of Housing and Urban
Development, 451 7th Street, SW., Washington, DC 20410. The Bank shall
have offices at such other places as it may deem necessary or desirable
in the conduct of its business.
Section 1.04 Seal.The seal of the Bank is set forth below and may be
affixed to any documents by impression, facsimile, printing, rubber
stamp or otherwise.
The Recording Secretary and any Assistant Recording Secretaries are
the only officials of the Bank to affix the seal.
Section 1.05 Fiscal Year. The Fiscal Year of the Bank shall end on
the 30th day of September of each year.
Section 2.01 The Bank shall have power to adopt, alter, and use a
corporate seal which shall be judicially noticed (which seal is set
forth in sec. 1.04 above); to enter into and perform contracts, leases,
cooperative agreements, or other transactions, on such terms as it may
deem appropriate, with any agency or instrumentality of the United
States, or with any State, Territory, or possession, or the Commonwealth
of Puerto Rico, or with any political subdivision thereof, or with any
person, firm, association, or corporation; to execute, in accordance
with these Bylaws, all instruments necessary or appropriate in the
exercise of any of its powers; in its corporate name, to sue and to be
sued, and to complain and to defend, in any court of competent
jurisdiction, State or Federal, but no attachment, injunction, or other
similar process, mesne or final, shall be issued against the property of
the Bank or against the Bank with respect to its property; to conduct
its business without regard to any qualification or similar statute in
any State of the United States, including the District of Columbia, the
Commonwealth of Puerto Rico, and the Territories and possessions of the
United States; to lease, purchase, or acquire any property real,
personal, or mixed, or any interest therein, to hold, rent, maintain,
modernize, renovate, improve, use, and operate such property, and to
sell, for cash or credit, lease, or otherwise dispose of the same, at
such time and in such manner as and to the extent that the Bank may deem
necessary or appropriate; to accept gifts or donations of services, or
of property, real, personal, or mixed, tangible, or intangible, in aid
of any of its purposes; and to do all things as are necessary or
incidental to the proper management of its affairs and the proper
conduct of its business.
Section 3.01 Powers. The Board shall exercise general supervision and
direction of the operations of the Bank and shall take all actions
reserved to the Board in the Act.
Section 3.02 Composition: Substitute Directors. The Board shall
consist of five (5) Directors (the Directors) who shall be the
Secretaries of Housing and Urban Development, Energy, Treasury,
Agriculture and Commerce. Each Director may designate under the
established delegation provisions of his or her Department one person
who shall occupy a position equivalent at least to Assistant Secretary,
who may act in the absence of the designating Director (a Substitute
Director). Each Director may also designate an Alternate Substitute
Director for the purpose of attending and participating in meetings of
the Board in the absence of the Substitute Director. The Alternate
Director shall also occupy a position equivalent at least to Assistant
Secretary. In the event of the designation of a Substitute Director (or
an Alternate Substitute Director), the Substitute Director, in the
absence of the designating Director (or the Alternate Substitute
Director) will be deemed to be a member of the Board and will have all
the powers and duties of the Director. Any act of the Substitute
Director (or Alternate Substitute Director) in his or her capacity
thereof will constitute an act of the designating Director.
The Substitute Director or Alternate Substitute Director will serve
until the designation of a replacement. Any reference in these Bylaws
in any section other than Section 3.02 to a Director shall be construed
also to be a reference to a Substitute Director or Alternate Substitute
Director.
Section 3.03 Chairperson. The Chairperson of the Board shall be the
Secretary of Housing and Urban Development (the Chairperson). In the
event the Chairperson has designated a Substitute Director in accordance
with sec. 3.02 of these bylaws, such Substitute Director shall be the
Chairperson in the absence of the Secretary of Housing and Urban
Development. The Chairperson or such Substitute Director shall preside
at meetings of the Board. In their absence or unavailability, the
Directors present at the meeting shall designate a presiding Director.
Section 3.04 Meetings. Meetings of the Board shall be held in the
Chairperson's conference room in the Department of Housing and Urban
Development in the City of Washington, DC, upon the call of the
Chairperson unless notice of another place is given. Written notice of
any meeting shall be given at least three days before the meeting. The
attendance of a Director at a meeting will constitute a waiver of notice
of the meeting. One or more Directors may request in writing a meeting
of the Board and upon receipt of such request, the Chairperson will
establish a meeting date at the earliest convenient time.
Section 3.05 Quorum. Three Directors shall constitute a quorum.
Section 3.06 Voting. The act of the majority of the Directors present
at any meeting at which there is a quorum shall be the act of the Board.
A Director shall be considered present and may participate at any
meeting of the Board by means of conference telephone or similar
communcations equipment which permits all persons participating in the
meeting to communicate with each other.
Section 3.07 Written action. Any action required or permitted to be
taken at any meeting of the Board may be taken without a meeting, if all
Directors consent in writing and the writing or writings are filed with
the Recording Secretary of the Board as part of the minutes and
proceedings of the Board.
Section 4.01 The officers of the Bank shall consist of the President
(the President), the Executive Vice President for Energy Conservation,
the Executive Vice President for Solar Energy, the Secretary (who shall
be the President of the Bank), the General Counsel, the Recording
Secretary and such other additional officers as the Board may deem
necessary. Such additional officers shall be authorized by the Board
and appointed by the Chairperson.
Section 4.02 The President. The office of President of the Bank is
established within the Department of Housing and Urban Development. The
President shall be appointed by the President of the United States with
the advice and consent of the United States Senate.
The President shall be the chief executive officer of the Bank, and
under the general direction of the Board shall have responsibility for
management and supervision of the affairs of the Bank. The President
will be responsible for the preparation of the Annual Report of the
Bank, and shall submit the Annual Report to the Board for approval and
issuance. Except as otherwise prescribed by these Bylaws, the President
shall have the power and authority to perform all duties ordinarily
incident to the office of president and shall perform such other duties
as may be assigned from time to time by the Board. As Secretary to the
Board, the President shall have such duties and responsibilities as the
Board may assign.
The President shall appoint an Executive Vice President for Energy
Conservation and an Executive Vice President for Solar Energy. The
President shall designate one of the Executive Vice Presidents of the
Bank to act in the event of his or her absence or disability. The
designated Executive Vice President will have all of the functions,
powers, and duties of the President during the term of absence or
disability of the President. The positions of Executive Vice President
for Energy Conservation and Executive Vice President for Solar Energy
may be filled by the same person.
The Board shall set the compensation for the Executive Vice
Presidents.
Section 4.03 The Executive Vice President for Energy Conservation.
The Executive Vice President for Energy Conservation shall have the
functions, powers and duties prescribed by the President.
Section 4.04 The Executive Vice President for Solar Energy. The
Executive Vice President for Solar Energy shall have the functions,
powers, and duties prescribed by the President.
Section 4.05 The Recording Secretary. The Board shall designate a
Recording Secretary. The Recording Secretary shall keep the minutes of
all meetings of the Board and maintain the minute book, shall be the
custodian of the records and seal of the Bank, shall give proper notice
of meetings of Directors, and in general shall perform all the duties
ordinarily incident to the office of corporation secretary and such
other duties as may be assigned by the Board. The Recording Secretary
is expressly empowered to attest all signatures on, and to affix the
seal to, all documents the execution of which on behalf of the Bank
under its seal is duly authorized. The Board may also designate as many
Assistant Recording Secretaries as may be needed to perform the
functions of the Recording Secretary.
Section 4.06 General Counsel. The General Counsel of the Department
of Housing and Urban Development shall be the General Counsel of the
Bank and shall perform or oversee all legal work for the Bank.
Section 5.01 Appointment. The Board shall appoint two advisory
committees of five (5) members each, one called the Energy Conservation
Advisory Committee and one called the Solar Energy Advisory Committee.
Members of the Advisory Committees shall not be officers or employees of
any governmental entity, and shall have the individual qualifications
specified in the Act.
Section 5.02 Energy Conservation Advisory Committee. The Energy
Conservation Advisory Committee shall advise the Board on matters
relating to residential and commercial energy conserving improvements.
Section 5.03 Solar Energy Advisory Committee. The Solar Energy
Advisory Committee shall advise the Board regarding solar energy
systems.
Section 5.04 Operations of the Advisory Committee. Members of each
Advisory Committee shall elect a chairperson of the Committee. The
Advisory Committees will comply with the Federal Advisory Committee Act,
except to the extent that Title V of the Energy Security Act
specifically otherwise provides.
Section 6.01 Operations. Except as otherwise authorized by the Board,
the operations of the Bank shall be carried out through the facilities
and personnel of the Department of Housing and Urban Development, as
permitted by the Secretary of Housing and Urban Development.
Section 6.02 Books, records and accounts. The Board shall cause to
be kept records of all proceedings of the Board and such other records,
and books and accounts as shall be necessary and appropriate to the
conduct of the Bank's business. Such records, books and accounts and
these Bylaws shall be kept at the principal office of the Bank, and
shall be available, upon request, to any Director.
Section 6.03 Regulations. The Board shall adopt such regulations as
the Board determines are necessary to carry out its functions.
Section 6.04 Fees and charges. The Board may establish a schedule of
fees or charges for the services of the Bank. These receipts will be
deposited into the miscellaneous receipts of the United States Treasury.
Section 7.01 Amendments. These Bylaws may be amended or altered by a
majority vote of the Board at any meeting at which a quorum is present:
Provided That notice of such proposed amendment or change shall have
been included in the notice given to the Directors of such meeting.
Section 8.01 Termination. The Bank will cease to exist after
September 30, 1987, and the assets and liabilities of the Bank shall be
transferred to the Secretary of the Treasury, unless Congress provides
otherwise.
(45 FR 61290, Sept. 16, 1980, as amended at 48 FR 54481, Dec. 5,
1983)
24 CFR 1895.1 24 CFR Ch. XII (4-1-92 Edition)
24 CFR 1895.1 Office of Inspector General, HUD
24 CFR 1895.1 CHAPTER XII -- OFFICE OF INSPECTOR GENERAL, DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT
Part
Page
2000 Organization, functions and delegations of authority
2002 Availability of information to the public
2004 Production in response to subpoenas or demands of courts or
other authorities
24 CFR 1895.1
24 CFR 1895.1 24 CFR Ch. XII (4-1-92 Edition)
24 CFR 1895.1 Office of Inspector General, HUD
24 CFR 1895.1 PART 2000 -- ORGANIZATION, FUNCTIONS AND DELEGATIONS OF
AUTHORITY
Sec.
2000.1 General statement.
2000.2 Duties.
2000.3 Authorities.
2000.4 Semiannual reports.
2000.5 Headquarters organization.
2000.6 Regional organization.
2000.7 Requests for service.
2000.8 Delegations of authority.
2000.9 Succession of authority.
Authority: Inspector General Act of 1978 (5 U.S.C. App.); sec.
7(d), Department of Housing and Urban Development Act (42 U.S.C.
3535(d)); Delegation of Authority Jan. 9, 1981 (46 FR 2389).
Source: 49 FR 11162, Mar. 26, 1984, unless otherwise noted.
24 CFR 2000.1 General statement.
(a) The Inspector General Act of 1978 (the Act) (Pub. L. 95-452, 5
U.S.C. app.) established an Office of Inspector General (OIG) in various
executive branch departments and agencies, including the Department of
Housing and Urban Development (HUD). The Act provided an explicit
statutory basis for the Office of Inspector General, which was created
by the Secretary of HUD (Secretary) in 1972. The Act was substantially
amended in 1988 by the Inspector General Act Amendments of 1988 (Pub. L.
100-504).
(b) The function of the OIG is to conduct and supervise audits and
investigations relating to HUD programs and activities. The audits and
investigations are designed to determine the efficiency and
effectiveness of HUD's programs and to prevent and detect fraud and
abuse. The OIG is also charged with the responsibility of keeping the
Secretary and the Congress fully and currently informed about problems
and deficiencies relating to the operation of HUD programs and the
necessity for and progress of corrective action.
(c) The Inspector General (IG) or, in his or her absence, the person
acting in that capacity, reports directly to the Secretary or his or her
designee and shall not report to or be subject to the supervision of any
other officer of HUD. As such, the Inspector General is an independent
official of HUD and is free from any undue influence or constraints in
performing his or her functions. The Inspector General:
(1) Cannot be prevented or prohibited from initiating, carrying out
or completing any audit or investigation or from issuing any related
report or subpoena during an audit or investigation; and
(2) Can report matters to Congress without either prior agency
clearance or the imposition of any restrictions which might influence or
alter the subject matters being reported.
(49 FR 11162, Mar. 26, 1984, as amended at 57 FR 2226, Jan. 21, 1992)
24 CFR 2000.2 Duties.
(a) The IG has the following duties and responsibilities concerning
the programs and operations of HUD:
(1) To conduct, supervise and provide policy direction for audits and
investigations relating to the programs and operations of HUD;
(2) To review existing and proposed legislation and regulations and
make recommendations to the Secetary and the Congress on the impact such
laws or regulations will have on the economy and efficiency of program
administration or on the prevention and detection of fraud and abuse in
the programs and operations of HUD;
(3) To recommend policies for and conduct activities designed to
promote economy and efficiency in HUD programs and to prevent and detect
fraud and abuse in such programs;
(4) To recommend policies for and conduct activities designed to
coordinate relationships between HUD and other Federal agencies and
State and local governments with respect to (i) promoting economy and
efficiency in HUD programs and detecting fraud and abuse in such
programs and (ii) identifying and prosecuting participants in such fraud
and abuse; and
(5) To keep the Secretary and Congress fully and currently informed
by means of the reports which are required in 2000.4 and otherwise on
fraud, abuse, deficiencies, and other such problems relating to the
operation of HUD programs; to recommend corrective action concerning
such problems; and to report on the progress of actions taken to
correct such problems.
(b) In carrying out such duties specified in the Act and in paragraph
(a)(1) of this section the IG shall:
(1) Comply with standards which are established by the Comptroller
General of the United States for audits of Federal establishments,
programs, and functions;
(2) Establish guidelines for determining when it shall be appropriate
to use non-Federal auditors; and
(3) Ensure that any work done by non-Federal auditors complies with
the standards established by the Comptroller General as described in
paragraph (b)(1) of this section.
(c) In carrying out the duties enumerated in the Act and in paragraph
(a) of this section, the IG shall avoid duplication of, and ensure
effective coordination with, the activities of the Comptroller General
of the United States.
(d) In carrying out the duties enumerated in the Act and in paragraph
(a) of this section, the IG shall report expeditiously to the Attorney
General whenever the IG has reasonable grounds to believe there is a
violation of Federal criminal law.
(49 FR 11162, Mar. 26, 1984, as amended at 57 FR 2226, Jan. 21, 1992)
24 CFR 2000.3 Authorities.
(a) In carrying out the provisions of the Act, the IG is authorized
to:
(1) Have access to all records, reports, audits, reviews, documents,
papers, recommendations or other material available to the Department
which relate to programs and operations for which the IG has
responsibility;
(2) Make such investigations and reports relating to the
administration of programs and operations of the Department as are in
the judgment of the IG necessary or desirable;
(3) Require by subpoena the production of all information, documents,
reports, answers, records, accounts, papers, data and other documentary
evidence necessary in the performance of duties and responsibilities
specified in the Act and in 2000.2. (Procedures other than subpoenas
shall be used to obtain documents and information from other federal
Agencies);
(4) Request such information or assistance as may be necessary for
carrying out the duties and responsibilities provided by the Inspector
General Act from any federal, state, or local governmental agency or
unit thereof;
(5) Administer or take from any person an oath, affirmation, or
affidavit, whenever necessary in the performance of the functions of the
OIG, that shall have the same force and effect as if administered by an
officer having a seal;
(6) Receive and investigate complaints or information from any HUD
employee concerning (i) possible violations of law or regulations; (ii)
mismanagement; (iii) gross waste of funds; (iv) abuse of authority;
or (v) substantial and specific dangers to the public health and safety;
(7) Have direct access to the Secretary for any purpose pertaining to
the performance of the duties specified in the Act or in 2000.2(a)(2);
(8) Select, appoint, and employ necessary officers and employees in
OIG, including those in the senior executive service, such as a Deputy
Inspector General, an Assistant Inspector General for Audit (AIGA), an
Assistant Inspector General for Investigation (AIGI), and an Assistant
Inspector General for Management and Policy (AIG-OMAP), in accordance
with laws and regulations governing the civil service;
(9) Obtain services which are authorized by 5 U.S.C. 3109 and which
relate to the employment of experts and consultants;
(10) Enter into contracts and other arrangements for audits, studies,
analyses and other services with public agencies and private persons and
make such payments as may be necessary to carry out the provisions of
the Act to the extent, and in such amounts, as may be provided in an
appropriation Act.
(b) In addition to the above statutory duties, responsibilities and
authorities, the following, have been delegated to the Inspector General
by the Secretary:
(1) To issue regulations necessary to carry out OIG's
responsibilities and duties (46 FR 2389);
(2) To refer to the Merit Systems Protection Board (MSPB) cases or
matters that involve a violation or possible violation of the Hatch Act
(5 U.S.C. 7321-27), and to transmit to MSPB information and materials
pertaining to violations or alleged violations;
(3) To refer to the United States Secret Service, Department of the
Treasury, cases or matters that involve the alleged forgery of United
States Treasury checks or alleged irregularities with regard to imprest
funds, and to transmit to the United States Secret Service information
and material pertaining to the alleged forgeries or irregularities;
(4) To receive directly from:
(i) The Department of Justice, any reports concerning action taken on
criminal matters referred by HUD on the basis of an OIG investigation;
(ii) The MSPB, any reports concerning action on matters referred by
HUD in accordance with paragraph (b)(2) of this section;
(iii) The United States Secret Service, Department of the Treasury,
any reports concerning action taken on matters referred by HUD in
accordance with paragraph (b)(3) of this section;
(iv) The Federal Bureau of Investigation, information requested by
HUD with respect to a person who is presently, or is prospectively to
be, employed or retained in an advisory capacity; information with
respect to the arrest of an employee; reports of investigation; and
information and materials relating to any other investigative or audit
matters not specified in this paragraph or paragraph (b)(5) or (d); of
this section;
(5) To maintain direct exchange of information and materials with the
Organized Crime and Racketeering Section, Criminal Division, Department
of Justice;
(6) To develop and direct the Department Personnel Security Program
under the requirements of Executive Order 10450, entitled ''Security
Requirements for Government Employment'' (18 FR 2489, 3 CFR 1949-1953
Comp., p. 936.).
(7) To develop and publish minimum standards, procedures,
specifications, and to implement instructions for the administration of
Executive Order 12356, entitled ''National Security Information'' (47 FR
14874, 3 CFR, 1982 Comp., p. 166.).
(8) To initiate administrative actions and to impose sanctions, such
as debarments, suspensions, determinations of ineligibility and
voluntary exclusions, of contractors and participants, in accordance
with 24 CFR part 24.
(9) To provide recertifications for the senior executive service
employees in OIG, pursuant to section 506 of the Ethics Reform Act of
1989 (Pub. L. 101-194).
(c) In addition to the authorities enumerated in paragraphs (a) and
(b) of this section IG may exercise additional powers as may be
authorized by Congress, the Secretary, or other governmental units.
(d) Authority excepted. Notwithstanding any delegation of authority
in paragraph (b) of this section neither the Inspector General nor the
Deputy Inspector General is authorized to:
(1) Refer any case or matter or to transmit information or material
directly to the Department of Justice with respect to violations or
possible violations of the Civil Rights Act of 1968 (42 U.S.C. 3601);
(2) Exercise the power in Executive Order 10450 to:
(i) Waive the requirements for completion of full investigations
before assumption by applicants or employees of critical-sensitive
positions;
(ii) Suspend, with or without pay, or reassign or detail temporarily
to a non-sensitive position, and then remove, any employee from a
sensitive position. (5 U.S.C. 7532);
(iii) Reinstate or restore individuals suspended or removed for
national security reasons. (5 U.S.C. 3571).
(e) Authority to redelegate. The IG is authorized to redelegate to
employees of OIG any of the power or authority delegated under this
section, except the IG may not delegate the authority to issue subpoenas
described in paragraph (a)(3) of this section or the rulemaking
authority listed in paragraph (b)(1) of this section.
(49 FR 11162, Mar. 26, 1984, as amended at 57 FR 2226, Jan. 21, 1992)
24 CFR 2000.4 Semiannual reports.
(a) In addition to the duties enumerated in 2000.2, the IG shall
prepare a semiannual report no later than April 30 and October 31 of
each year. Each report shall summarize the activities of the OIG for
the preceding six-month period ending March 31 and September 30 and
shall include, but is not limited to:
(1) A description of significant problems, abuses and deficiencies
relating to the administration of HUD programs and operations during the
reporting period and a description of the recommendations made to
correct such problems;
(2) An identification of each significant recommendation described in
previous semiannual reports on which corrective action has not yet been
completed;
(3) A summary of matters referred to prosecutive authorities and the
prosecutions and convictions which have resulted;
(4) A summary of each report, regarding information unreasonably
refused or not provided, made during the reporting period to the
Secretary under section 6(b)(2) of the Act;
(5) A list of each audit report issued by the OIG during the
reporting period and, where applicable, the total dollar value of
questioned costs and the dollar value of recommendations that funds be
put to better use, with summaries of each significant audit report;
(6) Statistical tables showing the total number of audit reports and,
for various defined categories of audit reports, the total dollar value
of questioned costs and the dollar value of recommendations that funds
be put to better use by management;
(7) A summary of each audit report issued before the commencement of
the reporting period for which no management decision has been made by
the end of the reporting period, with an explanation of the reasons the
decision has not been made and a statement concerning the desired
timetable for achieving a decision;
(8) A description and explanation of the reasons for any significant
revised management decision made during the reporting period; and
(9) Information concerning any significant management decision with
which the IG is in disagreement.
(b) The semiannual report shall be transmitted to the Secretary no
later than April 30 and October 31 of each year and shall be submitted
by the Secretary to the appropriate Congressional committees or
subcommittees within thirty calendar days after receipt of the report,
together with a report by the Secretary that contains the following:
(1) Any comments that the Secretary considers appropriate;
(2) Statistical tables showing the total number of audit reports and,
for various defined categories of audit reports, the dollar value of
disallowed costs and of recommendations agreed to in a management
decision that funds be put to better use by management; and
(3) A statement containing information with regard to certain audit
reports on which management decisions have been made but final action
has not been taken.
(c) Within 60 days of the transmission of a semiannual report to
Congress, the Secretary will make the report available to the public
upon request and at a reasonable cost, unless particular information
included in the report is protected from disclosure by law or by an
executive order, or is part of an ongoing criminal investigation;
(d) Notwithstanding the responsibility of the IG to prepare
semiannual reports, the IG will report immediately to the Secretary when
the IG becomes aware of serious or flagrant problems, abuses, or
deficiencies relating to the programs and operations of HUD. The
Secretary will transmit any such report to the appropriate congressional
committees or subcommittees within seven calendar days, together with a
report by the Secretary containing any comments that the Secretary
considers appropriate.
(57 FR 2226, Jan. 21, 1992)
24 CFR 2000.5 Headquarters organization.
(a) The IG has a Headquarters office in Washington, DC and Regional
offices throughout the Nation. The Headquarters office consists of the
immediate office of the Inspector General and three operational units,
the Office of Audit, the Office of Investigation, and the Office of
Management and Policy. The immediate office of the Inspector General
consists of the Inspector General, a Deputy Inspector General, and
support staff. The function of the Deputy IG is to assist the Inspector
General in the performance of the duties and responsibilities of the IG
and to assume those duties and responsibilities when the IG is absent.
(b) Operational units. (1) The Office of Audit is headed by the
Assistant Inspector General for Audit (AIGA). The AIGA is responsible
to the IG primarily for supervising and coordinating the performance of
all OIG auditing activities relating to the Department's programs and
operations and recommending corrective action concerning abuses and
deficiencies. Two divisions assist in carrying out these functions:
the Audit Operations Division and the Audit Planning and Oversight
Division.
(2) The Office of Investigation is headed by the Assistant Inspector
General for Investigation (AIGI). The AIGI is responsible to the IG for
supervising the performance of all OIG investigations and investigative
activities relating to the Department's programs and operations. Two
divisions assist in carrying out these functions: the Headquarters
Operations Division and the Field Operations Division.
(3) The Office of Management and Policy is headed by the Assistant
Inspector General for Management and Policy (AIG-OMAP). The AIG-OMAP is
responsible to the IG for carrying out OIG's programs concerning the
prevention and detection of fraud, waste, and mismanagement; for
implementing certain administrative activities in support of internal
OIG operations and the Act; for writing the IG's semiannual report to
Congress; and for conducting evaluations of trends and patterns in
program deficiencies and controls. Four divisions assist in carrying
out these functions: The Program Integrity Division, the Publications
and Awareness Division, the ADP Technology and Assistance Division, and
the Budget and Administrative Services Division.
(57 FR 2227, Jan. 21, 1992)
24 CFR 2000.6 Regional organization.
(a) The Regional Offices of Inspector General consist of the Office
of the Regional Inspector General for Audit (RIGA) and the Office of the
Regional Inspector General for Investigation (RIGI). The address for
each Regional Office is listed in paragraph (d) of this section.
(b) RIGA. Each RIGA is responsible for conducting and supervising
the performance of all OIG auditing activities relating to the
Department's programs and operations within the assigned geographic area
and for maintaining liaison on audit matters with Regional
Administrators, and Field Office Managers.
(c) RIGI. Each RIGI is responsible for supervising the performance
of all OIG investigative activities relating to the Department's
programs and operations within the assigned geographic area and for
maintaining liaison on investigation matters with United States
Attorneys, FBI Field Offices, and officials and staff of the HUD Field
Offices, within the assigned geographic area.
(d) Regional offices and territories served:
(49 FR 11162, Mar. 26, 1984, as amended at 57 FR 2227, Jan. 21, 1992)
24 CFR 2000.7 Requests for service.
Any person may direct a request for audit or investigative services
to:
(a) The Regional Inspector General for Audit or the Regional
Inspector General for Investigation having jurisdiction for the
geographic area involved;
(b) The Assistant Inspector General for Audit or the Assistant
Inspector General for Investigation; or
(c) The Inspector General.
24 CFR 2000.8 Delegations of authority.
(a) Except as indicated in paragraph (b) of this section, Assistant
Inspectors General listed in 2000.5 are authorized to take any
necessary actions to carry out their assigned functions provided that
such action has been delegated by the IG. This authority may be
redelegated.
(b) Assistant Inspectors General and Regional Inspectors General are
not authorized to:
(1) Issue subpoenas, or
(2) Release information in OIG files in response to a demand or
subpoena of a court or other authority without the prior approval of the
Inspector General.
(c) With respect to any duties delegated by the IG, the IG reserves
the right to perform such duties.
24 CFR 2000.9 Succession of authority.
In the absence or temporary incapacity of the Inspector General, the
following individuals, successively, according to availability, shall
act in the capacity of the Inspector General: Deputy Inspector General,
Assistant Inspector General for Audit, Assistant Inspector General for
Investigation, and Assistant Inspector General for Management and
Policy.
(57 FR 2227, Jan. 21, 1992)
24 CFR 2000.9 PART 2002 -- AVAILABILITY OF INFORMATION TO THE PUBLIC
Sec.
2002.1 Scope of the part and applicability of other HUD regulations.
2002.3 Request for records.
2002.5 Records produced upon request when reasonably described.
2002.7 Fees.
2002.9 Fees to be charged -- categories of requesters.
2002.11 Review of records, aggregating requests and waiving or
reducing fees.
2002.13 Charges for interest and for unsuccessful searches;
utilization of Debt Collection Act.
2002.15 Advance payments.
2002.17 Time limitations.
2002.19 Authority to release records or copies.
2002.21 Authority to deny requests for records and form of denial.
2002.23 Effect of denial of request.
2002.25 Administrative review.
Authority: Freedom of Information Act, as amended (5 U.S.C. 552);
Inspector General Act of 1978, as amended (5 U.S.C. app.); sec. 7(d) of
the Department of Housing and Urban Development Act (42 U.S.C.
3535(d)), unless otherwise noted.
Source: 49 FR 11165, Mar. 26, 1984, unless otherwise noted.
24 CFR 2002.1 Scope of the part and applicability of other HUD
regulations.
(a) General. This part contains the regulations of the Office of
Inspector General of HUD which implement the Freedom of Information Act
(5 U.S.C. 552). It tells the public how to request records and
information from the Office of Inspector General and explains the
procedure to use if a request is denied. Requests for documents made by
subpoena or other order are governed by procedures contained in part
2004 of this chapter. In addition to the regulations in this part, the
following provisions of part 15 of this title covering the production or
disclosure of material or information apply (except as limited in
paragraph (b) of this section) to the production or disclosure of
material in the possession of the Office of Inspector General:
Sec.
15.1 Definitions.
15.3 Statement of policy.
15.11 Publication in the Federal Register.
15.12 Materials not published in the Federal Register.
15.31 Information Centers.
15.32 Information officers.
15.33 Material in Department Central Information Center.
(b) Limited applicability of some sections of part 15. Sections
15.12 and 15.33 of this title describe Department material generally
available for public inspection and copying in one or more Department
Information Centers. To the extent the Information Centers listed in
15.31 of this title maintain Office of Inspector General material of
this type, part 15 applies and members of the public may seek assistance
at these centers. A request for specific documents made under the
Freedom of Information Act must be made using the procedures identified
in this part 2002.
(c) Use of the term ''Department.'' For purposes of this part, when
the word Department is used in 15.12, 15.31, 15.32 and 15.33 of this
title, the term means Department as defined in 15.1 of this title.
When the word Department is used in 15.3 and 15.11 of this title, the
terms means Office of Inspector General.
(d) Request for declassification and release of classified material.
Section 15.81 of this title contains the provisions for requesting
declassification and release of declassified material.
(49 FR 11165, Mar. 26, 1984, as amended at 57 FR 2227, Jan. 21, 1992)
24 CFR 2002.3 Request for records.
(a) A request for Office of Inspector General records may be made in
person during normal business hours at the Regional Offices listed in
2000.6(d) of this chapter. A written request may be addressed to the
Office of Inspector General, Department of Housing and Urban
Development, Washington, DC 20410, or to a particular Regional office.
Although oral requests may be honored, a requester may be asked to
submit the request in writing.
(b) Each request must reasonably describe the desired record
including the name, subject matter, and number or date, where possible,
so that the record may be identified and located. The request should
include the name, address and telephone number of the requester. In
order to enable the Office of Inspector General to comply with the time
limitations set forth in 2002.17, both the envelope containing a
written request and the letter itself should clearly indicate that the
subject is a Freedom of Information Act request.
(c) The request must be accompanied by the fee or an offer to pay the
fee as determined in 2002.7. At its discretion, the Office of Inspector
General may require advance payment in accordance with 2002.15.
(d) Copies of available records will be made as promptly as possible.
Copying service will be limited to not more than 10 copies of any
single page. Records which are published or available for sale need not
be reproduced.
(49 FR 11165, Mar. 26, 1984, as amended at 53 FR 37550 and 37552,
Sept. 27, 1988; 57 FR 2227, Jan. 21, 1992))
24 CFR 2002.5 Records produced upon request when reasonably described.
(a) When a request is made which reasonably describes a record of the
Office of Inspector General (see 2002.3) which has been stored in the
National Archives or other record center of the General Services
Administration, the record will be requested by the Office of Inspector
General if it otherwise would be available under this part.
(b) Every effort will be made to make a record in use by the staff of
the Office of Inspector General available when requested, and such
availability will be deferred only to the extent necessary to avoid
serious interference with the business of the Office of Inspector
General.
24 CFR 2002.7 Fees.
(a) Copies of records. HUD will charge $0.10 per page for copies of
documents up to 11 14 . For copies prepared by computer, such as
tapes or printouts, HUD will charge the actual costs, including operator
time, of production of the tape or printout. For other methods of
reproduction or duplication, HUD will charge the actual direct costs of
producing the document(s).
(b) Manual searches for records. Whenever feasible, HUD will charge
at the salary rate(s) (i.e., basic pay plus 16 percent) of the
employee(s) making the search. However, where a homogeneous class of
personnel is used exclusively in a search (e.g., all
administrative/clerical, or all professional/executive), HUD will charge
$9.25 per hour for clercial time and $18.50 per hour for professional
time. Charges for search time less than a full hour will be billed by
five-minute ( 1/12 of one hour) segments.
(c) Computer searches for records. HUD will charge at the actual
direct cost of providing the service. This will include the cost of
operating the central processing unit (CPU) for that portion of
operating time that is directly attributable to searching for records
responsive to a FOIA request and operator/programmer salary
approtionable to the search.
(d) Contract services. HUD will contract with private sector sources
to locate, reproduce and disseminate records in response to FOIA
requests when that is the most efficent and least costly method. When
doing so, however, HUD will ensure that the ultimate cost to the
requester is no greater than it would be if HUD itself had performed
these tasks. In no case will HUD contract out responsibilities which
the FOIA provides that HUD alone may discharge, such as determining the
applicability of an exemption, or determining whether to waive or reduce
fees. HUD will ensure that when documents that would be responsive to a
request are maintained for distribution by agencies operating
statutory-based fee schedule programs such as the National Technical
Information Service, HUD will inform requesters of the steps necessary
to obtain records from those sources. Information provided routinely in
the normal course of business will be provided at no charge.
(e) Restrictions on assessing fees. With the exception of requesters
seeking documents for commercial use, HUD will provide the first 100
pages of duplication and the first two hours of search time without
charge. For non-commercial use requesters, HUD will not begin to assess
fees until after HUD has provided the free search and reproduction. No
charge will be assessed non-commercial use requesters when the search
time and reproduction costs, over and above the free search time and
reproduction allocation, totals no more than $5.00. For commercial use
requesters, no charge will be assessed when the search time,
reproduction and review costs total no more than $5.00. Search time in
this context is based on manual search. To apply this term to searches
made by computer, HUD will determine the hourly cost of operating the
central processing unit and the operator's hourly salary plus 16
percent. When the cost of the search (including the operator time and
the cost of operating the computer to process a request) equals the
equivalent dollar amount of two hours of the salary of the person
performing the search, i.e., the operator, HUD will begin assessing
charges for computer search.
(f) Payment of fees. Payment of fees under this section and under
2002.11(a) shall be made in cash or by U.S. money order or by certified
bank check payable to the Treasurer of the United States. The fees
shall be sent to the organizational unit within HUD responding to the
request.
(g) Definitions. As used in this subpart:
(1) Direct costs means those expenditures which HUD actually incurs
in searching for and duplicating (and, in the case of commercial
requesters, reviewing) documents to respond to a FOIA request. Direct
costs include, for example, the salary of the employee performing work
(the basic rate of pay for the employee plus 16 percent of that rate to
cover benefits) and the cost of operating duplicating machinery. Not
included in direct costs are overhead expenses such as costs of space,
and heating or lighting the facility in which the records are stored.
(2) Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents. Such activity is
distinguished from review of material in order to determine whether the
material is exempt from disclosure.
(3) Duplication means the process of making a copy of a document
necessary to respond to a FOIA request. Such copies can take the form
of paper copy, microform, audio-visual materials, or machine readable
documentation (e.g., magnetic tape or disk), among others.
(4) Review means the process of examining a document located in
response to a request that is for a commerical use to determine whether
any portion of it may be withheld, excising portions to be withheld and
otherwise preparing the document for release. Review does not include
time spent resolving general legal or policy issues regarding the
application of exemptions.
(53 FR 37550, Sept. 27, 1988)
24 CFR 2002.9 Fees to be charged -- categories of requesters.
There are four categories of FOIA requesters: Commercial use
requesters; educational and non-commercial scientific institutions;
representatives of the news media; and all other requesters. Specific
levels of fees are prescribed for each of these categories:
(a) Commercial use requesters. (1) HUD will assess charges which
recover the full direct costs of searching for, reviewing for release,
and duplicating records sought for commercial use. Requesters must
reasonably describe the records sought. Commercial use requesters are
not entitled to two hours of free search time or 100 free pages of
reproduction of documents.
(2) Commercial use refers to a request from or on behalf of one who
seeks information for a use or purpose that furthers the commercial,
trade, or profit interests of the requester or the person on whose
behalf the request is made. In determining whether a requester properly
belongs in this category, HUD must determine the use to which a
requester will put the documents requested. Moreover, where HUD has
reasonable cause to doubt the use to which a requester will put the
records sought, or where that use is not clear from the request itself,
HUD will seek additional clarification before assigning the request to a
specific category.
(b) Educational and non-commercial scientific institution requesters.
(1) HUD will provide documents to educational and non-commercial
scientific institutions for the cost of reproduction alone, excluding
charges for the first 100 pages. To be eligible for inclusion in this
category, requesters must show that the request is being made as
authorized by and under the auspices of a qualifying institution and
that the records are not sought for a commercial use, but are sought for
furtherance of scholarly (if the request is from an educational
institution) or scientific (if the request is from a non-commercial
scientific institution) research. Requesters must reasonably describe
the records sought.
(2) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
(3) Non-commercial scientific institution means an institution that
is not operated on a commercial basis as that term is referenced in
2002.9(a) and which is operated solely for the purpose of conducting
scientific research the results of which are not intended to promote any
particular product or industry.
(c) Requesters who are representatives of the news media. (1) HUD
will provide documents to representatives of the news media for the cost
of reproduction alone, excluding charges for the first 100 pages. In
reference to this class of requester, a request for records supporting
the news dissemination function of the requester shall not be considered
to be a request that is for a commercial use. Requesters must
reasonably describe the records sought.
(2) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that
is about current events or that would be of current interest to the
public. Examples of news media entities include television or radio
stations broadcasting to the public at large, and publishers of
periodicals (but only in those instances when they can qualify as
disseminators of news) who make their products available for purchase or
subscription by the general public. Freelance journalists may be
regarded as working for a news organization if they can demonstrate a
solid basis for expecting publication through that organization, even
though not actually employed by it. A publication contract would be the
clearest proof, but HUD may also look to the past publication record of
a requester in making this determination.
(d) All other requesters. HUD will charge requesters who do not fit
into any of the categories above fees which recover the full reasonable
direct cost of searching for and reproducing records that are responsive
to the request, except that the first 100 pages of reproduction and the
first two hours of search time shall be furnished without charge.
Requests from subjects for records about themselves filed in agencies'
systems of records will continue to be treated under the fee provisions
of the Privacy Act of 1974 which permit fees only for reproduction.
Requesters must reasonably describe the records sought.
(53 FR 37551, Sept. 27, 1988)
24 CFR 2002.11 Review of records, aggregating requests and waiving or
reducing fees.
(a) Review of records. Only requesters who are seeking documents for
commercial use may be charged for time HUD spends reviewing records to
determine whether they are exempt from mandatory disclosure. Charges
may be assessed only for the initial review; i.e., the review
undertaken the first time HUD analyzes the applicability of a specific
exemption to a particular record or portion of a record. HUD will not
charge for review at the administrative appeal level of an exemption
already applied. However, records or portions of records withheld in
full under an exemption which is subsequently determined not to apply
may be reviewed again to determine the applicability of other exemptions
not previously considered. The costs for such a subsequent review would
be properly assessable. Review time will be assessed at the same rates
established for search time in 2002.7.
(b) Aggregating requests. A requester may not file multiple requests
at the same time, each seeking portions of a document or documents,
solely in order to avoid payment of fees. When HUD reasonably believes
that a requester or a group of requesters acting in concert, is
attempting to break a request down into a series of requests for the
purpose of evading the assessment of fees, HUD may aggregate any such
requests and charge accordingly.
(c) Waiving or reducing fees. HUD will furnish documents without
charge or at reduced charge if disclosure of the information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester. The
official authorized to grant access to records may waive or reduce the
applicable fee where requested. The determination not to waive or
reduce the fee will be subject to administrative review as provided in
2002.25 after the decision on the request for access has been made. Six
factors shall be used in determining whether the requirements for a fee
waiver or reduction are met. These factors are as follows:
(1) The subject of the request: Whether the subject of the requested
records concerns ''the operations or activities of the government'';
(2) The informative value of the information to be disclosed:
Whether the disclosure is ''likely to contribute'' to an understanding
of government operations or activities;
(3) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ''public understanding'';
(4) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ''significantly'' to
public understanding of government operations or activities;
(5) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(6) The primary interest in disclosure: Whether the magnitude of the
identified commercial interest of the requester is sufficiently large,
in comparison with the public interest in disclosure, that disclosure is
''primarily in the commercial interest of the requester.''
(53 FR 37551, Sept. 27, 1988)
24 CFR 2002.13 Charges for interest and for unsuccessful searches;
utilization of Debt Collection Act.
(a) Charging interest. HUD will begin assessing interest charges on
an unpaid bill starting on the 31st day following the day on which the
billing was sent. A fee received by HUD, even if not processed, will
suffice to stay the accrual of interest. Interest will be at the rate
prescribed in section 3717 of Title 31 U.S.C. and will accrue from the
date of the billing.
(b) Charge for unsuccessful search. Ordinarily no charge for search
time will be assessed when the records requested are not found or when
the records located are withheld as exempt. However, if the requester
has been notified of the estimated cost of the search time and has been
advised specifically that the requested records may not exist or may be
withheld as exempt, fees shall be charged.
(c) Use of Debt Collection Act of 1982. When a requester has failed
to pay a fee charged in a timely fashion (i.e., within 30 days of the
date of the billing), HUD may, under the authority of the Debt
Collection Act and part 17, subpart C of this title, use consumer
reporting agencies and collection agencies, where appropriate, to
recover the indebtedness owed the Department.
(53 FR 37552, Sept. 27, 1988)
24 CFR 2002.15 Advance payments.
(a) HUD may not require a requester to make an advance payment, i.e.,
payment before work is commenced or continued on a request, unless:
(1) HUD estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250. Then, HUD
will notify the requester of the likely cost and obtain satisfactory
assurance of full payment where the requester has a history of prompt
payment of FOIA fees, or require an advance payment of an amount up to
the full estimated charges in the case of requesters with no history of
payment; or
(2) Where a requester has previously failed to pay a fee charged in a
timely fashion (i.e., within 30 days of the date of the billing), HUD
may require the requester to pay the full amount owed plus any
applicable interest as provided by 2002.13(a) or demonstrate that he
has, in fact, paid the fees, and to make an advance payment of the full
amount of the estimated fee before HUD begins to process a new request
or a pending request from that requester.
(b) When HUD acts under paragraph (a)(1) or (a)(2) of this section,
the administrative time limits prescribed in subsection (a)(6) of the
FOIA (i.e., 10 working days from receipt of initial requests and 20
working days from receipt of appeals from initial denial, plus
permissible extensions of these time limits) will begin only after HUD
has received fee payments described above.
(c) Where it is anticipated that either the duplication fee
individually, the search fee individually, or a combination of the two
exceeds $25.00 over and above the free search time and duplication
costs, where applicable, and the requesting party has not indicated in
advance a willingness to pay so high a fee, the requesting party shall
be promptly informed of the amount of the anticipated fee or such
portion thereof as can readily be estimated. The notification shall
offer the requesting party the opportunity to confer with agency
representatives for the purpose of reformulating the request so as to
meet that party's needs at a reduced cost.
(53 FR 37552, Sept. 27, 1988)
24 CFR 2002.17 Time limitations.
(a) Upon receipt of a request for records, any of the Assistant
Inspectors General listed in 2000.5 of this chapter, as appropriate,
will determine within ten working days whether to grant the request.
The appropriate Assistant Inspector General will notify the requester
immediately in writing of the determination, the reasons for the
determination and the right of the person to request a review by the
Inspector General of HUD of an adverse determination.
(b) The time of receipt for processing a request for records purposes
is the time it is received by the appropriate office for review. If a
request is misdirected by the requester, the Office of Inspector General
or Department official who receives the request will promptly refer it
to the appropriate office and will advise the requester about the
delayed time of receipt.
(c) A determination with respect to a request for review by the
Inspector General of HUD under 2002.25 will be made within 20 working
days after receipt and will be communicated immediately to the person
requesting review.
(d) If the Office of Inspector General grants the request for
records, the records will be made available promptly to the requester.
(e) In unusual circumstances as specified in this paragraph, and
subject to the concurrence of any of the Assistant Inspectors General
listed in 2000.5 of this chapter, the time limits prescribed in either
paragraph (a) or (c) of this section may be extended. Any extension
will be in writing to the requester and will include reasons for the
extension and the date on which the disposition of the request will be
sent. No extension will be for more than ten working days. As used in
this paragraph, unusual circumstances means (but only to the extent
necessary to the proper processing of the particular request) that there
is a need:
(1) To search for and collect the requested records from field
facilities or other establishments that are separate from the office
processing the request; or
(2) To search for, collect, and appropriately examine a voluminous
amount of separate and distinct records which are demanded in a single
request; or
(3) For consultation, which shall be conducted with all practicable
speed, with another agency having a substantial interest in the
determination of the request or among two or more offices of the Office
of Inspector General having a substantial interest in the subject matter
of the request.
(49 FR 11165, Mar. 26, 1984. Redesignated and amended at 53 FR 37550
and 37552, Sept. 27, 1988; 57 FR 2227; Jan. 21, 1992)
24 CFR 2002.19 Authority to release records or copies.
Any of the Assistant Inspectors General of HUD listed in 2000.5 of
this chapter or appointed designees, as appropriate, is authorized to
release any record (or copy) pertaining to activities for which he or
she has primary responsibility, unless disclosure is clearly
inappropriate under this part. No authorized person may release records
for which another officer has primary responsibility without the consent
of the officer or his or her designee.
(49 FR 11165, Mar. 26, 1984. Redesignated at 53 FR 37550, Sept. 27,
1988)
24 CFR 2002.21 Authority to deny requests for records and form of
denial.
(a) The Assistant Inspectors General described in 2000.5 of this
chapter may deny a request for a record. Any denial will:
(1) Be in writing;
(2) State simply the reasons for the denial;
(3) State that review of the denial by the Inspector General of HUD
may be requested;
(4) Set forth the steps for obtaining review consistent with
2002.25; and
(5) Be signed by the Assistant Inspector General responsible for the
denial.
(b) The classes of records authorized to be exempted from disclosure
by the Freedom of Information Act (5 U.S.C. 552) are those which concern
matters that are:
(1)(i) Specifically authorized under criteria established by an
executive order to be kept secret in the interest of national defense or
foreign policy; and
(ii) Are in fact properly classified under the cited executive order;
(2) Related solely to the internal personnel rules and practices of
HUD;
(3) Specifically exempted from disclosure by statute (other than
section 552b of title 5), provided that the statute either:
(i) Requires that the matters be withheld from the public in a manner
that leaves no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information that are
obtained from a person and are privileged or confidential;
(5) Inter-agency or intra-agency memoranda or letters that would not
be available by law to a party other than an agency in litigation with
HUD;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records
or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local, or foreign agency or
authority, or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if the disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(c) With regard to a request for commercial or financial information,
predisclosure notification to business submitters is required by
Executive Order 12600 (3 CFR, 1987 Comp., p. 235) to afford the business
submitter an opportunity to object to disclosure of the requested
information.
(d) Any reasonably segregable portion of a record shall be provided
to any person requesting the record, after deletion of the portions that
are exempt under this section.
(57 FR 2228, Jan. 21, 1992)
24 CFR 2002.23 Effect of denial of request.
Denial of a request shall terminate the authority of the Assistant
Inspector General or his or her designee to release or disclose the
requested record, which thereafter may not be made available except with
express authorization of the Inspector General of HUD.
(49 FR 11165, Mar. 26, 1984. Redesignated at 53 FR 37550, Sept. 27,
1988)
24 CFR 2002.25 Administrative review.
(a) Review is available only from a written denial of a request for a
record issued under 2002.21 and only if a written request for review is
filed within 30 days after issuance of the written denial.
(b) A review may be initiated by mailing a request for review to the
Inspector General of HUD, Department of Housing and Urban Development,
451 Seventh Street, SW., Room 8256, Washington, DC 20410. Each request
for review must contain the following:
(1) A copy of the request, if in writing;
(2) A copy of the written denial issued under 2002.21; and
(3) A statement of the circumstances, reasons, or arguments advanced
in support of disclosure of the original request for the record.
In order to enable the Inspector General of HUD to comply with the
time limitations set forth in 2002.17, both the envelope containing the
request for review and the letter itself should clearly indicate that
the subject is a Freedom of Information Act request for review.
(c) Review will be made promptly by the Inspector General of HUD on
the basis of the written record described in paragraph (b) of this
section. Before a denial, the Inspector General will obtain the
concurrence of legal counsel for the Office of Inspector General.
(d) The time of receipt for processing of a request for review
purposes is the time it is received by the Inspector General of HUD. If
a request is misdirected by the requester and is received by one other
than the Inspector General, the Office of Inspector General or
Department official who receives the request will forward it promptly to
the Inspector General and will advise the requester about the delayed
time of receipt.
(e) The decision after review will be in writing, will constitute
final agency action on the request, and, if the denial of the request
for records is in full or in part upheld, the Inspector General will
notify the person making the request of his or her right to seek
judicial review under 5 U.S.C. 552(a)(4).
(49 FR 11165, Mar. 26, 1984. Redesignated and amended at 53 FR 37550
and 37552, Sept. 27, 1988)
24 CFR 2002.25 PART 2004 -- PRODUCTION IN RESPONSE TO SUBPOENAS OR
DEMANDS OF COURTS OR OTHER AUTHORITIES
Sec.
2004.1 Purpose and scope.
2004.2 Service of an Inspector General subpoena.
2004.3 Production or disclosure prohibited unless approved by the
Inspector General.
2004.5 Procedure in the event of a demand for production or
disclosure.
2004.7 Procedure in the event of an adverse ruling.
Authority: Inspector General Act of 1978, as amended (5 U.S.C.
app.); sec. 7(d) of the Department of Housing and Urban Development Act
(42 U.S.C. 3535(d)), unless otherwise noted.
Source: 49 FR 11168, Mar. 26, 1984, unless otherwise noted.
24 CFR 2004.1 Purpose and scope.
This part contains provisions for service of a subpoena issued by the
Inspector General and procedures with regard to demands of courts or
other authorities for Office of Inspector General (OIG) documents or
testimony by employees of the OIG. For purposes of this part, the term
''employees of the Office of Inspector General'' includes all officers
and employees of the United States appointed by, or subject to the
supervision of, the Inspector General.
(57 FR 2228, Jan. 21, 1992)
24 CFR 2004.2 Service of an Inspector General subpoena.
Service of a subpoena issued by the Inspector General may be
accomplished as follows:
(a) Personal service. Service may be made by delivering the subpoena
to the person to whom it is addressed. If the subpoena is addressed to
a corporation or other business entity, it may be served upon an
employee of the corporation or entity. Service made to an employee,
agent or legal representative of the addressee shall constitute service
upon the addressee.
(b) Service by mail. Service may also be made by mailing the
subpoena, certified mail -- return receipt requested, to the addressee
at his or her last known business or personal address.
(57 FR 2228, Jan. 21, 1992)
24 CFR 2004.3 Production or disclosure prohibited unless approved by
the Inspector General.
(a) The rules and procedures in paragraphs (b) and (c) of this
section shall be followed when a subpoena, order or other demand
(hereinafter referred to as a ''demand'') of a court or other authority
is issued for the production of documents or disclosure of testimony
concerning:
(1) Any material contained in the files of the Office of Inspector
General;
(2) Any information relating to material contained in the files of
the Office of Inspector General; or
(3) Any information or material which an individual acquired while an
employee of the Office of Inspector General as a part of the performance
of official duties or because of his or her official status.
(b) Without prior approval of the Inspector General, no employee or
former employee of the Office of Inspector General shall, in response to
a demand of a court or other authority, produce any material contained
in the files of the Office of Inspector General, or disclose any
information relating to material contained in the files of the Office of
Inspector General, or disclose any information or produce any material
acquired as a part of the performance of official duties or because of
official status.
(c) With regard to a request for testimony of a present or former OIG
employee as an expert or opinion witness, the employee may not be called
to testify as an expert or opinion witness by any party other than the
United States.
(57 FR 2228, Jan. 21, 1992)
24 CFR 2004.5 Procedure in the event of a demand for production or
disclosure.
(a) Whenever a demand is made upon an employee or former employee of
the Office of Inspector General for the production of material or the
disclosure of information described in 2004.1, he or she shall notify
immediately the Inspector General and the Office of General Counsel. If
possible, the Inspector General shall be notified before the employee or
former employee concerned replies to or appears before the court or
other authority.
(b) If oral testimony is sought by the demand, the party seeking
testimony, or his or her attorney, must furnish to the Inspector General
an affidavit, or if that is not feasible, a statement setting forth a
summary of the testimony desired.
(c) If response to the demand is required before the instructions
from the Inspector General are received, the United States Attorney, or
such other attorney as may be designated for the purpose, will appear
with the individual upon whom the demand has been made. The attorney
will furnish the court or other authority with a copy of the regulations
contained in this part and will inform the court or other authority that
the demand has been or is being, as the case may be, referred for the
prompt consideration of the Inspector General. The court or other
authority shall be respectfully requested to stay the demand pending
receipt of the requested instructions from the Inspector General.
(49 FR 11168, Mar. 26, 1984)
24 CFR 2004.7 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand in response to a request by the Inspector General made in
accordance with 2004.5(c), or if the court or other authority rules
that the demand must be complied with irrespective of the instructions
from the Inspector General not to produce the material or disclose the
information sought, the employee or former employee upon whom the demand
has been made shall respectfully decline to comply with the demand
United States ex rel. Touhy v. Ragen, 340 U.S. 462).
(49 FR 11168, Mar. 26, 1984, as amended at 57 FR 2229, Jan. 21, 1992)
24 CFR 2004.7 24 CFR Ch. XV (4-1-92 Edition)
24 CFR 2004.7 Mortgage Insurance and Loan Programs, HUD
24 CFR 2004.7 CHAPTER XV -- MORTGAGE INSURANCE AND LOAN PROGRAMS UNDER
THE EMERGENCY HOMEOWNERS' RELIEF ACT, DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
Part
Page
2700 Emergency homeowners' relief program
24 CFR 2004.7
24 CFR 2004.7 24 CFR Ch. XV (4-1-92 Edition)
24 CFR 2004.7 Mortgage Insurance and Loan Programs, HUD
24 CFR 2004.7 PART 2700 -- EMERGENCY HOMEOWNERS' RELIEF PROGRAM
24 CFR 2004.7 Subpart A -- General
Sec.
2700.1 Purpose.
2700.5 Definitions.
2700.10 Determination of emergency.
24 CFR 2004.7 Subpart B -- Eligibility
2700.101 Eligible properties.
2700.105 Eligible lending institutions.
2700.110 Eligible homeowners.
24 CFR 2004.7 Subpart C -- Terms of Emergency Loans
2700.201 Eligible notes and mortgages.
2700.205 Loan amount.
2700.210 Finance charges.
24 CFR 2004.7 Subpart D -- Coinsurance
2700.301 Loan applications.
2700.305 Conditions of insurance.
2700.310 Fees.
2700.315 Insurance premiums.
2700.320 Servicing.
2700.325 Termination.
2700.330 Default.
2700.335 Claims.
2700.340 Payment of insurance benefits.
2700.345 Administrative reports and examinations.
2700.350 Sale, assignment, and pledge of insured loan.
24 CFR 2004.7 Subpart E -- Direct Loans
2700.401 Participation by lending institutions.
2700.405 Application for loans.
2700.410 Transmittal of funds.
2700.415 Fees.
2700.420 Servicing.
2700.425 Default.
2700.430 Collection.
2700.435 Payment to the Secretary.
2700.440 Administrative reports and examination.
24 CFR 2004.7 Subpart F -- Appendices
Appendix 1 -- Application for insurance or direct loan authority
allocation -- application for contract
Appendix 2 -- Application for insured loan
Appendix 3 -- Premium form
Appendix 4 -- Insurance claim form
Appendix 5 -- Application for direct loan
Appendix 6 -- Monthly accounting of direct loans
Appendix 7 -- Direct loan final accounting
Appendix 8 -- Income computation form
Authority: Sec. 108(a), 12 U.S.C. 2707, 89 Stat. 252, Pub. L.
94-50.
Source: 40 FR 59867, Dec. 30, 1975, unless otherwise noted.
24 CFR 2004.7 Subpart A -- General
24 CFR 2700.1 Purpose.
The purpose of this chapter is to describe and establish a standby
program, authorized by the Emergency Homeowners' Relief Act, to prevent
widespread mortgage foreclosures and distress sales of homes resulting
from the temporary loss of employment and income. If it becomes
necessary to implement the program, HUD would provide emergency relief
under the standby program by coinsuring loans made by private lenders or
by making direct loans to homeowners to assist them in making their
mortgage payments. In the event that this emergency program is needed,
coinsurance under subpart D is intended to be the primary method of
assistance.
24 CFR 2700.5 Definitions.
For purposes of this chapter:
(a) Act means the Emergency Homeowners' Relief Act.
(b) Delinquent mortgage means a mortgage which is at least 3 months
delinquent at the time of the application for assistance under this
chapter and with respect to which such assistance is to be used or has
been used to make payments.
(c) Department and HUD means the Department of Housing and Urban
Development.
(d) Direct loan means an emergency loan made pursuant to subpart E
with funds of the United States of America, evidenced by a note payable
to the United States of America.
(e) Emergency loan means an emergency mortgage relief loan made
pursuant to this chapter.
(f) Family means one or more persons related by blood, marriage, or
operation of law, who occupy the same dwelling unit.
(g) Finance charge means the cost of credit as determined in 12 CFR
226.4, a section in Regulation Z of the Federal Reserve System's
regulations on Truth in Lending.
(h) Financially unable to make full mortgage payments means that a
homeowner is unable to make his monthly mortgage payment with 25 percent
of his gross monthly income and that his assets (excluding the equity in
his principal residence, household furniture, equipment used in his
trade, clothing and automobiles) have a current value not in excess of
$5,000.
(i) Gross monthly income means the total monthly income, before taxes
and other deductions, received by all members of the homeowner's family.
There shall be included in this total income all wages, social security
payments, retirement benefits, military and veteran's disability
payments, unemployment benefits, welfare benefits, food stamp benefits,
and interest and dividend payments.
(j) Homeowner means a mortgagor or mortgagors who are in need of
mortgage assistance pursuant to this chapter.
(k) Investor means a lending institution which owns a delinquent
mortgage. The investor may also be the lender or servicer.
(l) Involuntary unemployment or underemployment due to adverse
economic conditions means the status of a homeowner who is able to work
full-time in work which is suitable for the homeowner on the basis of
experience and training, who is available for and actively seeking such
suitable work, and who is either totally unemployed or working part-time
in any job, suitable or unsuitable, or working full-time in work which
is unsuitable, but who has suffered a substantial reduction in income.
(Registration with the local office of the state employment service will
be considered one form of evidence of active search for work.)
(m) Lender means a lending institution which makes an emergency loan
pursuant to subpart D, or its assignee or successor in interest.
(n) Mortgage means any mortgage, deed of trust, executory land sales
contract, conditional sales contract, or other form of security and the
obligation secured thereby on a one- to four-family dwelling which is
either real estate or a manufactured home. It includes a mortgage on a
condominium unit and a security interest in stock in a housing
cooperative.
(o) Monthly mortgage payment means the monthly amount of principal,
interest, taxes, ground rents, hazard insurance and mortgage insurance
premiums due to be paid under a homeowner's mortgage(s).
(p) Secretary means the Secretary of Housing and Urban Development.
(q) Servicer means a lending institution which services an emergency
loan made by the Secretary pursuant to subpart E.
(r) Servicing institution means the lending institution that services
the delinquent mortgage. The servicing institution may also be the
lender or servicer.
(s) Substantial reduction in income means that the homeowner's
average gross monthly income during the period the homeowner is in
arrears on the delinquent mortgage is less than 80 percent of his
average gross monthly income during the 24 month period preceding the
beginning of his involuntary unemployment or underemployment.
(Sec. 108(a), 12 U.S.C. 2707, 89 Stat. 252, Pub. L. 94-50, sec.
7(d), Department of Housing and Urban Development Act (42 U.S.C.
3535(d)))
(40 FR 59867, Dec. 30, 1975, as amended at 50 FR 9269, Mar. 7, 1985)
24 CFR 2700.10 Determination of emergency.
(a) The Department has constructed a nationwide composite index of
delinquencies of 60 days or more (including loans in the process of
foreclosure) for mortgage loans on one-to four-family dwellings. It is
a quarterly index which is based on a weighted average of delinquency
rates published by: the Department of Veterans Affairs, the National
Association of Mutual Savings Banks, the Mortgage Bankers Association of
America, the American Life Insurance Association, and the U.S. League of
Savings Associations. The rates are weighted according to the
percentage of the long-term mortgage loans, held by the respective
lender group represented by the data in each individual series at the
end of each quarter.
(b) If the composite rate of delinquencies should reach 1.20 percent
the Secretary will, after consultation with the Federal agencies that
regulate institutions which make home mortgage loans, make a finding and
determination as to whether the Act should be implemented. If the
determination of the Secretary is not to implement the Act, and if the
composite rate of delinquencies should continue at a level of 1.20
percent or above, the Secretary shall continue to consult with such
agencies and shall issue such a finding and determination at the end of
each 30 days period during which the rate is at or above the 1.20
percent level.
(c) If the Emergency Homeowners' Relief Program is activated pursuant
to paragraph (b) of this section, the Secretary shall publish a notice
thereof in the Federal Register, inviting lending institutions qualified
under 2700.105 that are interested in participating in the program to
submit a request for an insurance or direct loan authority allocation in
the form specified in Appendix 1. Such request shall also serve as an
application for a contract of insurance pursuant to subpart D, or for a
contract to act as the Secretary's servicer pursuant to subpart E,
depending on the type of allocation requested. The allocation request
may be based upon anticipated applications with respect to mortgages
held by other institutions. In such a case, the requesting institution
should indicate the basis for its estimate of the number of such
mortgages and the amount of assistance which will be sought pursuant
thereto. An allocation of insurance authority shall constitute
acceptance by the Secretary of the lending institution's application for
a contract of insurance, the terms of which are embodied in this
chapter. Similarly, an allocation of direct loan authority shall
constitute acceptance by the Secretary of the institution's application
for a contract to act as the Secretary's servicer, the terms of which
are embodied in this chapter.
(d) If, after the program is activated, the Secretary determines that
the emergency conditions which led to the activation of the program have
abated, no new emergency loans may be made. Furthermore, if an
allocation is not used as the applicant represented that it would be
used, all or part of the unused allocation may be rescinded by the
Secretary. Moreover, no emergency loans may be made after June 30,
1976.
(40 FR 59867, Dec. 30, 1975, as amended at 54 FR 39525, Sept. 27,
1989)
24 CFR 2700.10 Subpart B -- Eligibility
24 CFR 2700.101 Eligible properties.
In order to qualify for an emergency loan under subpart D or subpart
E of this part, the mortgaged property must:
(a) Be the principal residence of the homeowner;
(b) Be subject to a delinquent mortgage, as defined in 2700.5, but
not subject to liens having a total outstanding principal balance at the
time of filing of the application for an emergency loan under this
chapter in excess of $55,000, or such other amount as approved by the
Secretary; and
(c) Have flood insurance, pursuant to the National Flood Insurance
Program, in an amount equal to at least the initial principal amount of
the emergency loan, if the property is located in an area that has been
identified by the Secretary at least one year before the origination of
the emergency loan as an area having special flood hazards.
24 CFR 2700.105 Eligible lending institutions.
(a) In order to participate in the Emergency Homeowners' Relief
Program as a lender or servicer, a lending institution must be approved
as a mortgagee pursuant to 203.1 through 203.4 (except 203.4(e)) of
this title.
(b) Approval of a lending institution pursuant to paragraph (a) of
this section may be withdrawn at any time by notice from the Secretary
by reason of:
(1) The transfer of an insured loan to a nonapproved entity;
(2) The failure of a lending institution to submit the required
annual audit report of its financial condition within 75 days of the
close of its fiscal year; or
(3) The failure of a lending institution to comply with the
regulations of this chapter.
Withdrawal of a lending institution's approval shall not affect the
insurance on the loans accepted for insurance.
(c) All approved lending institutions are responsible for servicing
of emergency loans in accordance with acceptable mortgage practices of
prudent lending institutions.
24 CFR 2700.110 Eligible homeowners.
In order to qualify for an emergency loan under subpart D or subpart
E the homeowner must:
(a) Be at least 3 months in arrears in his payments on the delinquent
mortgage;
(b) Have incurred a substantial reduction in income as a result of
involuntary unemployment or underemployment due to adverse economic
conditions;
(c) Be financially unable to make full mortgage payments on his
principal residence;
(d) Have a reasonable prospect of being able to make the adjustments
necessary for a full resumption of mortgage payments on the delinquent
mortgage the month after the last advance under the emergency loan and
for the repayment of the emergency loan pursuant to the terms of the
note taken in connection with that loan (a favorable employment and
credit history prior to the beginning of his current unemployment or
underemployment will be considered one form of evidence of the homeowner
having such a prospect);
(e) Have not received another emergency loan pursuant to this
chapter;
(f) Have been notified that the investor intends to foreclose; and
(g) Sign the application to be sent to the Secretary, as specified in
Appendices 2 and 5 of this part, which certifies that to the best of his
knowledge the information in the application which the homeowner
provided is accurate, that circumstances make it probable that there
would be a foreclosure if emergency mortgage relief were not given, and
that he is in need of such relief.
24 CFR 2700.110 Subpart C -- Terms of Emergency Loans
24 CFR 2700.201 Eligible notes and mortgages.
(a) The note, mortgage and lending agreement, if any, in connection
with an emergency loan pursuant to subpart D or E of this part shall be
in a form, approved by the Regional Administrator of the HUD Regional
Office, for the State in which the mortgaged property is located.
(b) The note evidencing the emergency loan shall bear the signature
of the homeowner as maker, shall be valid and enforceable against him,
and shall be complete and regular on its face.
(c) Loans shall be secured by an additional mortgage upon the
property which shall be recorded at the time of the closing of the loan.
(d) The note, or a separate lending agreement which may be
incorporated by reference in the note, shall provide for the
disbursement of the loan proceeds within 12 months. However, the note
or lending agreement shall provide that if at any time before the last
disbursement under the emergency loan is made, the homeowner's average
gross monthly income during the preceding 3 months has increased or
decreased by 20 percent or more in relation to the gross monthly income
of the homeowner at the time the loan amount was established, the
homeowner must notify the lender or servicer within 30 days. In such a
case, the emergency loan shall be recast with respect to the amount of
principal and interest on the basis of the homeowner's new income in
such a way as to satisfy the requirements of 2700.205(a).
(e) The maximum first disbursement of the loan proceeds may be in an
amount equal to the loan amount as determined under 2700.205 divided by
12, times the number of months, not exceeding 12, that the delinquent
mortgage is in arrears.
(f) The note shall provide for payments to principal in equal
installments falling due monthly beginning no later than 12 months
following the date of the last disbursement of loan proceeds.
(g) The note shall provide for payments of interest earned during the
disbursement period and interest earned thereafter beginning no later
than 6 months following the date of the last disbursement under the
loan.
(h) The note shall contain a provision for acceleration of maturity,
at the option of the holder, in the event of default on the emergency
loan, as defined in 2700.330(b) and 2700.425(b).
(i) The maximum permissible maturity of the note is 10 years from the
date of the note.
24 CFR 2700.205 Loan amount.
(a) Subject to the limitation specified in paragraph (b) of this
section, the principal amount of the loan, exclusive of finance charges,
made under subparts D and E of this part shall be equal to the lesser
of:
(1) 12 times $250; or
(2) The sum of (i) 12 times the homeowner's monthly mortgage payment
after 25 percent of his monthly income has been subtracted therefrom,
and (ii) the fees allowed under 2700.310(a) and 2700.415(a).
(b) The lender or servicer shall not approve an emergency loan when
the outstanding balance, including delinquent interest, of the
delinquent mortgage when added to the other liens against the mortgaged
property, plus the maximum loan which may be advanced to the homeowner
pursuant to this chapter, exceeds the value of the mortgaged property.
(In determining the value of the property, the lender or servicer may
rely upon previously obtained appraisals or other determinations of
value of the property and need not obtain a current appraisal.)
24 CFR 2700.210 Finance charges.
The maximum permissible finance charge, exclusive of fees and charges
as provided in 2700.310, and 2700.415, which may directly or
indirectly be paid to or collected by the lender or the servicer, in
connection with an emergency loan transaction shall not exceed simple
interest on the outstanding principal balance at the annual interest
rate for FHA-insured home mortgages as specified in 203.20 of this
title at the time of the closing of the loan. No points or discounts of
any kind may be assessed or collected in connection with an emergency
loan transaction.
24 CFR 2700.210 Subpart D -- Coinsurance
24 CFR 2700.301 Loan applications.
(a) Lending institutions which have contracts of insurance pursuant
to 2700.10(c) and this subpart are authorized to accept, process, and
approve applications for emergency loans under this subpart. That
authority includes making determinations relating to eligibility of the
emergency loan, the homeowner, and the property under the provisions of
this chapter.
(b) A lender may make an emergency loan on the terms specified in
subpart C if it is satisfied that the application meets all of the
relevant requirements of this chapter. The lender shall prepare a note,
loan agreement, if any, and mortgage as required by subpart C of this
part which it shall record upon the execution of those documents.
(c) On the last working day of the month during which a loan is
closed, the lender shall submit to the Secretary an application for an
insured loan in the form specified in appendix 2 of this part, signed by
the lender and homeowner, which certifies that: the lender, homeowner,
and property meet the eligibility requirements of subpart B of this
part, that circumstances (such as the volume of delinquent loans in the
investor's portfolio likely to remain uncured) make it probable that
there would be a foreclosure if emergency mortgage relief were not
given; that the homeowner is in need of such relief; that the investor
has indicated to the homeowner its intention to foreclose; and that the
first disbursement of the principal amount of the emergency loan has
been paid or credited to the homeowner's account with the servicing
institution.
24 CFR 2700.305 Conditions of insurance.
When the requirements of this subpart have been complied with, the
lender's insurance coverage under its insurance contract will apply to a
particular loan as of the date of closing, if the lender has not
exceeded the insurance authority allocation which the Secretary has
given the lender pursuant to 2700.10(c). When the investor is the
lender, the insurance of the emergency loan pursuant to subpart D shall
be conditioned upon the investor's agreement, for a period up to the
month after the last advance under the emergency loan, to refrain from
instituting foreclosure proceedings against the homeowner as long as the
amount delinquent at the time of the origination of the emergency loan,
excluding interest thereon, does not increase, unless the prior approval
of the Secretary is obtained. From the effective date of the loan until
the termination of the insurance with respect to that loan, the
Secretary and the lender shall be bound by the provisions of this
chapter as they relate to the loan.
24 CFR 2700.310 Fees.
(a) The lender may collect from the homeowner during the year
following the origination of the emergency loan the following fees or
charges in conjunction with providing the emergency loan:
(1) A charge to compensate the lender for expenses incurred in
originating and closing the emergency loan, including preparation of a
note, loan agreement, if any, and a mortgage in a form satisfactory for
recordation, the total charge not to exceed $25;
(2) Actual amounts charged by state or local governments or
government officials for recording fees and recording taxes or other
charges incident to making the loan;
(3) An amount equal to the annual premium for flood insurance
required by 2700.101(c) (the lender shall pay the homeowner's flood
insurance premium for that year to the extent it collects such an
amount); and
(4) An amount equal to the annual mortgage insurance premium required
under 2700.315.
(b) Subsequent to the year following the origination of the emergency
loan and up to the termination of insurance under 2700.325, the lender
may collect from the homeowner the following fees and charges in
connection with the emergency loan: an amount equal to the mortgage
insurance premium required under 2700.315.
24 CFR 2700.315 Insurance premium.
(a) On March 1 of each year the insured shall pay to the Secretary an
insurance premium equal to one-half of 1 percent of the average
outstanding balance, during the previous calendar year, of all the
emergency loans which the lender held during that period pursuant to
this part.
(b) With respect to the payment provided for in paragraph (a) of this
section, the lender shall submit a breakdown of the premium in the form
prescribed in appendix 3 to this part.
(c) Any adjustments of the insurance premium already paid in
connection with an emergency loan the mortgage on which is transferred
between insureds, shall be made by the insureds, except that any unpaid
installments of the insurance premium shall be paid by the purchasing
insured.
(d) There shall be no refund or abatement of any portion of the
insurance premium except when the premium relates to a loan found to be
ineligible. However, no refund shall be made unless a claim is denied
by the Secretary or the ineligibility is reported by the insured
promptly upon discovery and an application for refund is made. In no
event shall charges be refunded when the application for refund is not
made until after the loan is paid in full.
24 CFR 2700.320 Servicing.
Servicing functions during the period that the loan is coinsured
shall be performed by the lender or the servicing institution acting for
the lender. The lender is responsible to the Secretary for proper
servicing, even though the actual servicing is not performed by the
lender.
24 CFR 2700.325 Termination.
The insurance coverage and the insured lender's obligation to remit
insurance premiums with respect to an emergency loan shall be terminated
upon whichever of the following first occurs:
(a) The loan is paid in full;
(b) The lender acquires the property securing the loan and notifies
the Secretary that no claim for insurance benefits has been or will be
made;
(c) The homeowner and the lender jointly request termination; or
(d) The lender files an insurance claim pursuant to 2700.335.
24 CFR 2700.330 Default.
(a) If the homeowner fails to make a scheduled payment or to perform
any other obligation under the mortgage securing the emergency loan, the
homeowner shall be deemed to be delinquent on the loan.
(b) For purposes of this subpart, the date of default shall be the
earliest of:
(1) 30 days after the first day the homeowner is delinquent on the
emergency loan, if the delinquency remains uncorrected;
(2) The date the mortgaged property is sold before full repayment of
the emergency loan; and
(3) The date a lien superior to that securing the emergency loan is
foreclosed.
(c) If after default and prior to the foreclosure of the mortgage
securing the emergency loan, the homeowner cures the default, the loan
shall be treated as if a default had not occurred, provided the
homeowner pays the lender for any expenses the lender incurred in
connection with the lender's attempt to collect on the loan.
24 CFR 2700.335 Claims.
(a) Claims for reimbursement for loss on an emergency loan shall be
made on the form specified in Appendix 4 and executed by a duly
qualified officer or agent of the insured. The claim shall be
accompanied by the lender's complete credit and collection file, or a
copy of such file certified by the lender to be a complete and exact
copy of the file retained by the lender pertaining to the transaction.
(b) Claims may be filed upon the homeowner's default on the emergency
loan.
(c) When the homeowner defaults on the emergency loan, the lender may
elect to: (1) Proceed against the mortgage on the loan or attempt to
collect on the note and then make a claim under its insurance contract
if there is any net loss, or (2) make a claim under its insurance
contract without proceeding against the security or the note.
(d) Claims shall be filed on the last working day of the month, no
later than 90 days after the date of default, unless the lender proceeds
against the mortgage securing the emergency loan in which case no later
than 1 year after the date of default, or such other time period as the
Secretary approves. If at the time of default or at any time subsequent
to the default a person primarily or secondarily liable for the
repayment of a loan is a person in military service, as such term is
defined in the Soldier's and Sailor's Civil Relief Act of 1940, as
amended, the lender shall refrain from instituting foreclosure
proceedings during the period which he is in military service and 3
months thereafter and that period shall be excluded in computing the
time within which a claim for insurance benefits under this subpart may
be made.
(e) An insured lender will be reimbursed for its losses on loans made
in accordance with this chapter, in an amount equal to 90 percent of the
sum of the following:
(1) The unpaid principal amount of the loan less the amount
recovered;
(2) The uncollected interest earned up to the date of claim;
(3) Uncollected court costs, including fees paid for issuing, serving
and filing summonses;
(4) Attorney's fees actually paid not exceeding the lesser of: (i)
25 percent of the amount collected by the attorney on the defaulted
note, or (ii) 15 percent of the balance due on the note; and
(5) Up to $25 for expenses actually incurred in recording assignments
of mortgages to the United States of America.
(f) The note and any mortgage held or judgment taken by the claimant
must be assigned in its entirety and if any claim has been filed in
bankruptcy, insolvency, or probate proceedings, such claim shall be
likewise assigned to the United States of America. The assignment shall
be in the form, approved by the Regional Administrator of the HUD
Regional Office, for the state in which the mortgaged property is
located.
24 CFR 2700.340 Payment of insurance benefits.
Upon receipt of a claim for insurance benefits which meets the
requirements of 2700.335 and the other provisions of this chapter, the
Secretary shall make a payment of insurance benefits in cash to the
claimant in an amount equal to the amount specified in 2700.335(e),
subject to the following limitation: The aggregate amount of insurance
benefits payable by the Secretary to any lender shall not exceed 40
percent of the aggregate amount advanced by such lender pursuant to this
subpart.
24 CFR 2700.345 Administrative reports and examinations.
At any time, the Secretary may call upon an insured lender for such
reports as are deemed to be necessary in connection with the regulations
of this chapter and may inspect the books or accounts of the lender as
they pertain to the loans which are coinsured pursuant to this subpart.
24 CFR 2700.350 Sale, assignment and pledge of insured loan.
(a) No lender may sell or otherwise dispose of any insured loan
except pursuant to this section.
(b) An insured loan may be sold to a lending institution eligible
under 2700.105. Upon such sale, both the seller and the buyer shall
notify the Secretary within 30 days.
(c) When an insured loan is sold to another lending institution
eligible under 2700.105, the buyer shall thereupon succeed to all the
rights and become bound by all the obligations of the seller under the
contract of insurance under this part, and the seller shall be released
from its obligations under the contract of insurance.
(d) An assignment, pledge, or transfer of an insured loan not
constituting an actual transfer of legal title, may be made by the
lender to another eligible lending institution, subject to the following
conditions:
(1) The assignor, pledgor or transferor shall remain the lender for
purposes of the contract of insurance under this part.
(2) The Secretary shall have no obligation to recognize or deal with
any party other than that lender with respect to the rights, benefits
and obligations of the lender under the contract of insurance.
Notice to or approval of the Secretary is not required in connection
with assignments, pledges or transfers pursuant to this subsection.
24 CFR 2700.350 Subpart E -- Direct Loans
24 CFR 2700.401 Participation by lending institutions.
A lending institution eligible under 2700.105, which has a contract
to act as the Secretary's servicer pursuant to 2700.10(c) and this
subpart, is authorized to accept, process and approve applications for
direct loans under this subpart in the form specified in appendix 5 to
this part. That authority includes making determinations relating to
the eligibility of the direct loan, homeowner, and property, pursuant to
the provisions of this chapter. Direct loans, however, may only be made
pursuant to this part when the investor cannot make an emergency loan
under subpart D of this part for one of the following reasons:
(a) The investor has a liquidity problem and cannot obtain advances
as authorized by section 113 of the Emergency Homeowners' Relief Act or
by sections 10, 10b and 11 of the Federal Home Loan Bank Act; or
(b) Other good reason, as determined by the Secretary.
24 CFR 2700.405 Application for loans.
The agreement to process an application for a direct loan shall
constitute an acceptance of the lending institution of the
responsibility to act as the servicer of the Secretary with respect to
that particular application. The servicer shall make a loan on behalf
of the Secretary on the terms specified in subpart C of this part if it
is satisfied that the application meets all of the requirements of this
chapter. The servicer shall prepare a note, loan agreement, if any, and
mortgage in the form specified in 2700.201. The servicer shall record
the mortgage upon the closing of the loan. The servicer shall make the
first advance of the loan, as provided for in 2700.201(e), using its
own funds. On the last working day of the month during which the loan
is closed, the servicer shall submit to the Secretary a copy of the
application signed by the agent and the homeowner certifying: That the
agent, homeowner, and property qualify under subpart B of this part;
that circumstances (such as the volume of delinquent loans in the
investor's portfolio likely to remain uncured) make it probably that
there would be a foreclosure if emergency mortgage relief were not
given; that the homeowner is in need of such relief; that the investor
has indicated to the homeowner its intention to foreclose; and that the
first advance of the emergency loan has been paid or credited to the
homeowner's account with the servicing institution.
24 CFR 2700.410 Transmittal of funds.
When the requirements of this part have been complied with, the
Secretary will transmit to the servicer, pursuant to the monthly
accounting prescribed in 2700.420, the emergency loan proceeds as long
as the agent has not exceeded the lending authority allocation which the
Secretary has given the servicer pursuant to 2700.10(c). When the
investor is the servicer, the transmittal of funds under this section
shall be conditioned upon the investor's agreement, for a period up to
the month after the last advance under the emergency loan, to refrain
from instituting foreclosure proceedings against the homeowner as long
as the amount delinquent at the time of the origination of the emergency
loan, excluding interest thereon, does not increase, unless the
Secretary's prior approval is obtained. From the processing of the
application until the satisfaction of the debt or the final accounting
pursuant to 2700.435, the Secretary and the servicer shall be bound by
the provisions of this chapter with respect to a particular direct loan.
24 CFR 2700.415 Fees.
(a) The servicer may collect from the homeowner during the year
following the origination of the emergency loan the following fees or
charges in conjunction with providing the emergency loan:
(1) A charge to compensate the servicer for expenses incurred in
originating and closing the emergency loan, including preparation of a
note, loan agreement, if any, and a mortgage in a form satisfactory for
recordation, the total charge not to exceed $25;
(2) Actual amounts charged by state or local governments or
government officials for recording fees and recording taxes or other
charges incident to making the loan;
(3) An amount equal to the annual premium for flood insurance
required by 2700.101(c) (the servicer shall pay the homeowner's flood
insurance premium for that year to the extent it collects such an
amount); and
(4) An amount equal to the annual premium required under
2700.420(d).
(b) Subsequent to the year following the origination of the emergency
loan and up to the final accounting on the loan under 2700.435, the
servicer may collect from the homeowner the following fees and charges:
an amount equal to premium required under 2700.420(d).
24 CFR 2700.420 Servicing.
(a) Servicing functions during the period that the loan is
outstanding shall be performed by the servicer.
(b) On the same day each month, while the servicer is servicing
direct loans for the Secretary, the servicer shall submit a monthly
accounting in the form prescribed in appendix 6 to this part for all of
the direct loans which it services. The accounting shall list the
amount of funds which it advanced under direct loans during the previous
calendar month. In addition, the accounting shall list the amount paid
to the servicer under the direct loans serviced by the servicer during
the previous calendar month.
(c) If, pursuant to the monthly accounting, the amount HUD owes the
servicer exceeds the amount the servicer owes HUD, the Secretary shall
remit the difference to the services as long as the Secretary finds the
accounting in order. If, pursuant to the monthly accounting, the amount
the servicer owes HUD exceeds the amount HUD owes the servicer, the
servicer shall remit the difference when he submits the monthly
accounting to the Secretary.
(d) In March of each year, the servicer, in addition to making its
monthly accounting, shall pay to the Secretary a premium equal to one
half of 1 percent of the average outstanding balance during the previous
calendar year of all the direct loans it serviced during that period.
That payment shall be accompanied by a breakdown of the premium in the
form prescribed in appendix 3 to this part.
24 CFR 2700.425 Default.
(a) If the homeowner fails to make any payment or to perform any
other obligation under the mortgage securing the emergency loan, the
homeowner shall be deemed to be delinquent on the loan.
(b) For purposes of this subpart, the date of default shall be the
earliest of:
(1) 30 days after the first day the homeowner is delinquent on the
emergency loan, if the delinquency remains uncorrected;
(2) The date the mortgaged property is sold before full repayment of
the emergency loan; and
(3) The date a lien superior to that securing the emergency loan is
foreclosed.
(c) If after default and prior to the foreclosure of the mortgage
securing the emergency loan, the homeowner cures the default, the loan
shall be treated as if the default had not occurred, provided the
homeowner pays the servicer for any expenses the servicer incurred in
connection with the servicer's attempt to collect on the loan.
24 CFR 2700.430 Collection.
(a) If a homeowner defaults on a direct loan, the servicer shall
elect: (1) To wait while the Department of Justice proceeds against the
mortgage securing the loan or attempts to collect on the note, and then
to make an accounting and payment to the Secretary, as provided in
2700.435, or (2) to make an accounting and payment, as provided in
2700.435, without waiting while the Department of Justice proceeds
against the mortgage or note.
(b) If, pursuant to paragraph (a) of this section, the servicer
elects to make an accounting without waiting while the Department of
Justice against the mortgage or note, the servicer, at the time of that
accounting, will have the option of purchasing the loan and underlying
mortgage for a price equal to 0.5 times the unpaid principal balance.
(41 FR 23298, June 9, 1976)
24 CFR 2700.435 Payment to the Secretary.
(a) Before the expiration of the period of 90 days after the date of
default, or such other time period as the Secretary approves, the
servicer shall transmit to the Secretary on the last working day of the
month the complete credit and collection file pertaining to the
emergency loan.
(b) At the same time the servicer makes the transmittal as provided
in paragraph (a) of this section, it shall share the loss on the loan by
making a payment to the Secretary in an amount equal to 10 percent of
the sum of: (1) The unpaid principal amount of the loan less the amount
recovered; and (2) the uncollected interest earned up to the date of
the final accounting. Accompanying that payment shall be a final
accounting of the loan in the form specified in subpart F, appendix 7 of
this part and the note and mortgage executed in connection with the
emergency loan.
(c) Notwithstanding the provisions of paragraph (b) of this section,
in the event that the aggregate loss borne by the Secretary reaches 40
percent of the aggregate amount advanced by the servicer on behalf of
the Secretary under this subpart, the servicer shall bear the burden of
any loss in excess of that 40 percent by making an appropriate payment
to the Secretary within the time period specified in paragraph (a) of
this section.
(d) If at the time of default or at any time subsequent to default, a
person primarily or secondarily liable for the repayment of the loan is
a person in military service, as such term is defined in the Soldier's
and Sailor's Civil Relief Act of 1940, as amended, the period he is in
the military service and 3 months thereafter will be excluded in
computing the time within which an accounting and payment are to be made
pursuant to paragraph (a) of this section.
(41 FR 23298, June 9, 1976)
24 CFR 2700.440 Administrative reports and examinations.
The Secretary may at any time call for a report from any servicer on
the delinquency status of the loans serviced by the servicer on behalf
of the Secretary or call for such reports as may be deemed to be
necessary in connection with the provisions of this chapter, or the
Secretary may inspect the books or accounts of the servicer as they
pertain to those loans.
24 CFR 2700.440 Subpart F -- Appendices
24 CFR 2700.440 Pt. 2700, App. 1
Insert illus 5A
24 CFR 2700.440 Pt. 2700, App. 2
Insert illus 6A
24 CFR 2700.440 Pt. 2700, App. 3
Insert illus 7A
24 CFR 2700.440 Pt. 2700, App. 4
Insert illus 8A
24 CFR 2700.440 Pt. 2700, App. 5
Insert illus 9A
24 CFR 2700.440 Pt. 2700, App. 6
Insert illus 10A
24 CFR 2700.440 Pt. 2700, App. 7
Insert illus 11A
24 CFR 2700.440 Pt. 2700, App. 8
Insert illus 12A
24 CFR 2700.440 24 CFR Ch. XX (4-1-92 Edition)
24 CFR 2700.440 Office of Asst. Sec. for Housing, HUD
24 CFR 2700.440 CHAPTER XX -- OFFICE OF ASSISTANT SECRETARY FOR HOUSING
-- FEDERAL HOUSING COMMISSIONER, DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
Part
Page
3280 Manufactured home construction and safety standards
3282 Manufactured home procedural and enforcement regulations
3283 Manufactured Home Consumer Manual requirements
3500 Real Estate Settlement Procedures Act
24 CFR 2700.440
24 CFR 2700.440 24 CFR Ch. XX (4-1-92 Edition)
24 CFR 2700.440 Office of Asst. Sec. for Housing, HUD
24 CFR 2700.440 PART 3280 -- MANUFACTURED HOME CONSTRUCTION AND SAFETY STANDARDS
24 CFR 2700.440 Pt. 3280
24 CFR 2700.440 Subpart A -- General
Sec.
3280.1 Scope.
3280.2 Definitions.
3280.3 Acceptance of plans.
3280.4 Incorporation by reference.
3280.5 Data plate.
3280.6 Serial number.
3280.7 Excluded structures.
3280.8 Certification label.
24 CFR 2700.440 Subpart B -- Planning Considerations
3280.101 Scope.
3280.102 Definitions.
3280.103 Light and ventilation.
3280.104 Ceiling heights.
3280.105 Exit facilities; exterior doors.
3280.106 Exit facilities; egress windows and devices.
3280.107 Interior privacy.
3280.108 Interior passage.
3280.109 Space planning.
3280.110 Room requirements.
3280.111 Minimum room dimensions.
3280.112 Toilet compartments.
3280.113 Hallways.
3280.114 Glass and glazed openings.
24 CFR 2700.440 Subpart C -- Fire Safety
3280.201 Scope.
3280.202 Definitions.
3280.203 Flame spread limitations and fire protective requirements.
3280.204 Kitchen cabinet protection.
3280.205 Carpeting.
3280.206 Firestopping.
3280.207 Requirements for foam plastic thermal insulating materials.
3280.208 Fire detection equipment.
3280.209 Fire testing.
24 CFR 2700.440 Subpart D -- Body and Frame Construction Requirements
3280.301 Scope.
3280.302 Definitions.
3280.303 General requirements.
3280.304 Materials.
3280.305 Structural design requirements.
3280.306 Windstorm protection.
3280.307 Resistance to elements and use.
3280.308 Formaldehyde emission controls for certain wood products.
3280.309 Health Notice on formaldehyde emissions.
24 CFR 2700.440 Subpart E -- Testing
3280.401 Structural load tests.
3280.402 Test procedures for roof trusses.
3280.403 Standard for windows and sliding glass doors used in
manufactured homes.
3280.404 Standard for egress windows and devices for use in
manufactured homes.
3280.405 Standard for swinging exterior passage doors for use in
manufactured homes.
3280.406 Air chamber test method for certification and qualification
of formaldehyde emission levels.
24 CFR 2700.440 Subpart F -- Thermal Protection
3280.501 Scope.
3280.502 Definitions.
3280.503 Materials.
3280.504 Condensation control (vapor barriers).
3280.505 Air infiltration.
3280.506 Heat loss.
3280.507 Comfort heat gain.
3280.508 Heat loss, heat gain and cooling load calculations.
3280.509 Criteria in absence of specific data.
3280.510 Heat loss certificate.
3280.511 Comfort cooling certificate and information.
24 CFR 2700.440 Subpart G -- Plumbing Systems
3280.601 Scope.
3280.602 Definitions.
3280.603 General requirements.
3280.604 Materials.
3280.605 Joints and connections.
3280.606 Traps and cleanouts.
3280.607 Plumbing fixtures.
3280.608 Hangers and supports.
3280.609 Water distribution systems.
3280.610 Drainage systems.
3280.611 Vents and venting.
3280.612 Tests and inspection.
24 CFR 2700.440 Subpart H -- Heating, Cooling and Fuel Burning Systems
3280.701 Scope.
3280.702 Definitions.
3280.703 Minimum standards.
3280.704 Fuel supply systems.
3280.705 Gas piping systems.
3280.706 Oil piping systems.
3280.707 Heat producing appliances.
3280.708 Exhaust duct system and provisions for the future
installation of a clothes dryer.
3280.709 Installation of appliances.
3280.710 Venting, ventilation and combustion air.
3280.711 Instructions.
3280.712 Marking.
3280.713 Accessibility.
3280.714 Appliances, cooling.
3280.715 Circulating air systems.
24 CFR 2700.440 Subpart I -- Electrical Systems
3280.801 Scope.
3280.802 Definitions.
3280.803 Power supply.
3280.804 Disconnecting means and branch-circuit protective equipment.
3280.805 Branch circuits required.
3280.806 Receptacle outlets.
3280.807 Fixtures and appliances.
3280.808 Wiring methods and materials.
3280.809 Grounding.
3280.810 Electrical testing.
3280.811 Calculations.
3280.812 Wiring of expandable units and dual units.
3280.813 Outdoor outlets, fixtures, air conditioning equipment, etc.
3280.814 Painting of wiring.
3280.815 Polarization.
3280.816 Examination of equipment for safety.
24 CFR 2700.440 Subpart J -- Transportation
3280.901 Scope.
3280.902 Definitions.
3280.903 General requirements for designing the structure to
withstand transportation shock and vibration.
3280.904 Specific requirements for designing the transportation
system.
Authority: Sec. 7(d), Department of Housing and Urban Development
Act, 42 U.S.C. 3535(d), Title VI, Housing and Community Development Act
of 1974 (42 U.S.C. 5401), unless otherwise noted.
Source: 40 FR 58752, Dec. 18, 1975, unless otherwise noted.
Redesignated at 44 FR 20679, Apr. 6, 1979.
Editorial Note: For nomenclature changes affecting this part, see 47
FR 28092, June 29, 1982.
24 CFR 2700.440 Subpart A -- General
24 CFR 3280.1 Scope.
(a) This standard covers all equipment and installations in the
design, construction, fire safety, plumbing, heat-producing and
electrical systems of manufactured homes which are designed to be used
as dwelling units. The Secretary may approve such equipment and
installations which are listed or labeled by an approved testing or
listing agency. Equipment and installations not listed or labeled may
be approved by the Secretary upon a determination that such equipment
and installations are adequate for the protection of health, safety and
the general welfare.
(b) These Federal manufactured home construction and safety standards
seek, to the maximum extent possible, to establish performance
requirements. In certain instances, however, the use of specific
requirements in the Standard is necessary because, at this time, that is
the best available means of identifying the desired performance. The
use of specific requirements is not intended to prohibit the utilization
of any material, piece of equipment, or system which cannot meet the
precise specifications, but which upon evaluation provides equivalent or
superior performance. Where any material, piece of equipment, or system
which does not meet precise specifications set out in the standard is
shown, to the satisfaction of the Secretary, to meet the level of
performance of a material, piece of equipment or system which meets the
precise specifications, the Secretary may waive the specifications set
out in the standard for that material, piece of equipment, or system.
Whenever a waiver is issued, the Secretary shall issue an interpretative
bulletin which announces the waiver, states that the material, piece of
equipment or system meets the required standard of performance, and sets
out any limitations or other requirements with respect to how the
material, piece of equipment, or system must be used, including any
tests of the material, piece of equipment, or system which the Secretary
determines must be carried out before it can be used. Where a waiver
has been issued, the requirements of the section of the Federal standard
to which the waiver relates may be met either by meeting the
specifications set out in the standard or by meeting any requirements
set out in the interpretative bulletin which announces the waiver.
(c) Interpretative bulletins may also be issued for the following
purposes:
(1) To clarify the meaning of the standard; and
(2) To assist in the enforcement of the standard.
24 CFR 3280.2 Definitions.
(a) Definitions in this subpart are those common to all subparts of
the standard and are in addition to the definitions provided in
individual parts.
(1) Approved, when used in connection with any material, appliance or
construction, means complying with the requirements of the Department of
Housing and Urban Development.
(2) Center means the midline between the right and left side of a
manufactured home.
(3) Certification label means the approved form of certification by
the manufacturer that, under 3280.8, is permanently affixed to each
transportable section of each manufactured home manufactured for sale in
the United States.
(4) Combustible Material means materials made of, or surfaced with,
wood, compressed paper, plant fibers, or other material that will ignite
and burn. Such materials shall be considered as combustible even though
flameproofed, fire-retardant treated, or plastered.
(5) Defect includes any defect in the performance, construction,
components, or material of a manufactured home that renders the home or
any part thereof not fit for the ordinary use for which it was intended.
(6) Department means the Department of Housing and Urban Development.
(7) Dwelling Unit means one or more habitable rooms which are
designed to be occupied by one family with facilities for living,
sleeping, cooking and eating.
(8) Equipment includes materials, appliances, devices, fixtures,
fittings or accessories both in the construction of, and in the fire
safety, plumbing, heat-producing and electrical systems of manufactured
homes.
(9) Federal manufactured home construction and safety standard means
a reasonable standard for the construction, design, and performance of a
manufactured home which meets the needs of the public including the need
for quality, durability, and safety.
(10) Imminent safety hazard means a hazard that presents an imminent
and unreasonable risk of death or severe personal injury.
(11) Installations means all arrangements and methods of
construction, as well as fire safety, plumbing, heat-producing and
electrical systems used in manufactured homes.
(12) Labeled means a label, symbol or other identifying mark of a
nationally recognized testing laboratory, inspection agency, or other
organization concerned with product evaluation that maintains periodic
inspection of production of labeled equipment or materials, and by whose
labeling is indicated compliance with nationally recognized standards or
tests to determine suitable usage in a specified manner.
(13) Length of a Manufactured Home means its largest overall length
in the traveling mode, including cabinets, and other projections which
contain interior space. Length does not include bay windows, roof
projections, overhangs, or eaves under which there is no interior space,
nor does it include drawbars, couplings or hitches.
(14) Listed or Certified means included in a list published by a
nationally recognized testing laboratory, inspection agency, or other
organization concerned with product evaluation that maintains periodic
inspection of production of listed equipment or materials, and whose
listing states either that the equipment or material meets nationally
recognized standards or has been tested and found suitable for use in a
specified manner.
(15) Manufacturer means any person engaged in manufacturing or
assembling manufactured homes, including any person engaged in importing
manufactured homes for resale.
(16) Manufactured Home means a structure, transportable in one or
more sections, which in the traveling mode, is eight body feet or more
in width or forty body feet or more in length, or, when erected on site,
is three hundred twenty or more square feet, and which is built on a
permanent chassis and designed to be used as a dwelling with or without
a permanent foundation when connected to the required utilities, and
includes the plumbing, heating, air-conditioning, and electrical systems
contained therein. Calculations used to determine the number of square
feet in a structure will be based on the structure's exterior dimensions
measured at the largest horizontal projections when erected on site.
These dimensions will include all expandable rooms, cabinets, and other
projections containing interior space, but do not include bay windows.
This term includes all structures which meet the above requirements
except the size requirements and with respect to which the manufacturer
voluntarily files a certification pursuant to 3282.13 and complies with
the standards set forth in part 3280. Nothing in this subsection should
be interpreted to mean that a manufactured home necessarily meets the
requirements of HUD's Minimum Property Standards (HUD Handbook 4900.1)
or that it is automatically eligible for financing under 12 U.S.C.
1709(b).
(17) Manufactured Home Construction means all activities relating to
the assembly and manufacture of a manufactured home including, but not
limited to, those relating to durability, quality and safety.
(18) Manufactured Home Safety means the performance of a manufactured
home in such a manner that the public is protected against any
unreasonable risk of the occurrence of accidents due to the design or
construction of such manufactured home, or any unreasonable risk of
death or injury to the user or to the public if such accidents do occur.
(19) Registered Engineer or Architect means a person licensed to
practice engineering or architecture in a state and subject to all laws
and limitations imposed by the state's Board of Engineering and
Architecture Examiners and who is engaged in the professional practice
of rendering service or creative work requiring education, training and
experience in engineering sciences and the application of special
knowledge of the mathematical, physical and engineering sciences in such
professional or creative work as consultation, investigation,
evaluation, planning or design and supervision of construction for the
purpose of securing compliance with specifications and design for any
such work.
(20) Secretary means the Secretary of Housing and Urban Development,
or an official of the Department delegated the authority of the
Secretary with respect to title VI of Pub. L. 93-383.
(21) State includes each of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, the
Canal Zone, and American Samoa.
(22) Width of a Manufactured Home means its largest overall width in
the traveling mode, including cabinets and other projections which
contain interior space. Width does not include bay windows, roof
projections, overhangs, or eaves under which there is no interior space.
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 960, Jan. 4, 1977.
Redesignated at 44 FR 20679, Apr. 6, 1979, and amended at 47 FR 28092,
June 29, 1982)
24 CFR 3280.3 Acceptance of plans.
(a) Each manufacturer of manufactured homes shall submit the building
plans for every model of such manufactured home to the Secretary, or
Secretary's designee, for the purpose of inspection for conformance to
this standard.
(b) The manufacturer shall certify that each such building plan meets
the Federal construction and safety standard in force at that time
before the manufactured home involved is produced.
(c) Regulations pertaining to enforcement of these standards and to
labeling of manufactured homes shall be as prescribed by the Secretary.
24 CFR 3280.4 Incorporation by reference.
(a) The specifications, standards and codes of the following
organizations are incorporated by reference in this Standard pursuant to
5 U.S.C. 552(a) and 1 CFR part 51 as though set forth in full. The
incorporation by reference of these standards has been approved by the
Director of the Federal Register. Wherever reference standards and this
Standard are inconsistent, the requirements of this Standard prevail to
the extent of the inconsistency.
(b) The abbreviations, and addresses of organizations issuing the
referenced standards appear below. Reference standards which are not
available from their producer organizations may be obtained from the
Office of Manufactured Housing and Construction Standards, Manufactured
Housing Standards Division, U.S. Department of Housing and Urban
Development, 451 Seventh Street, SW., Washington, DC 20410.
AA -- Aluminum Association, 818 Connecticut Avenue, NW., Washington,
DC 20006
AGA -- American Gas Association, 1515 Wilson Boulevard, Arlington, VA
22209
AAMA -- American Architectural Manufacturers Association, 2700 River
Road, Suite 118, Des Plains, IL 60018
AISC -- American Institute of Steel Construction, 400 North Michigan
Avenue, Chicago, IL 60611
AISI -- American Iron and Steel Institute, 1000 16th Street, NW.,
Washington, DC 20036
AITC -- American Institute of Timber Construction, 333 W. Hampden
Avenue, Englewood, CO 80110
ANSI -- American National Standards Institute, 1430 Broadway, New
York, NY 10018
APA -- American Plywood Association, P.O. Box 11700, Tacoma, WA 98411
ARI -- Air Conditioning and Refrigeration Institute, 1815 North Ft.
Myer Drive, Arlington, VA 22209
ASHRAE -- American Society of Heating, Refrigeration and Air
Conditioning Engineers, 1791 Tullie Circle, NE., Atlanta, GA 30329
ASME -- American Society of Mechanical Engineers, 345 East 47th
Street, New York, NY 10017
ASTM -- American Society for Testing and Materials, 1916 Race Street,
Philadelphia, PA 19103
CISPI -- Cast Iron Soil Pipe Institute, 1499 Chain Bridge Road,
McLean, VA 22101
FS -- Federal Specifications, General Services Administration,
Specifications Branch, Room 6039, GSA Building, 7th and D Streets, SW.,
Washington, DC 20407
GAL -- Gas Appliance Laboratory, 3133 East Olympic Boulevard, Los
Angeles, CA 90023
HPMA -- Hardwood Plywood Manufacturers Association, P.O. Box 2789,
Reston, VA 22090
HUD-FHA -- Department of Housing and Urban Development, 451 Seventh
Street, SW., Washington, DC 20410
IAPMO -- International Association of Plumbing and Mechanical
Officials, 5032 Alhambra Avenue, Los Angeles, CA 90032
IITRI -- IIT Research Institute, 10 West 35th Street, Chicago, IL
60616
MIL -- Military Specifications and Standards, Naval Publications and
Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120
NFPA -- National Fire Protection Association, Batterymarch Park,
Quincy, MA 02269
(N)FPA -- National Forest Products Association, 1250 Connecticut
Avenue, Washington, DC 20036
NPA -- National Particleboard Association, 2306 Perkins Place, Silver
Spring, MD 20910
NSF -- National Sanitation Foundation, P.O. Box 1468, Ann Arbor, MI
48105
NWMA -- National Woodwork Manufacturers Association, 205 West Toughy
Avenue, Park Ridge, IL 60068
PS -- Product Standards, U.S. Government Printing Office, Washington,
DC 20410
SAE -- Society of Automotive Engineers, 400 Commonwealth Drive,
Warrendale, PA 15096
SJI -- Steel Joist Institute, Suite A, 48 Avenue North, Myrtle Beach,
SC 29577
TPI -- Truss Plate Institute, 100 West Church Street, Frederick, MD
21701
UL -- Underwriters' Laboratories, Inc., 333 Pfingsten Road,
Northbrook, IL 60062
(c) The Department will enforce the listed editions of material
incorporated by reference into this standard. If a later edition is to
be enforced, the Department will publish a notice of change in the
Federal Register.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(47 FR 49385, Nov. 1, 1982, as amended at 52 FR 4580, Feb. 12, 1987;
52 FR 47553, Dec. 15, 1987)
24 CFR 3280.5 Data plate.
(a) Each manufactured home shall bear a data plate affixed in a
permanent manner near the main electrical panel or other readily
accessible and visible location. Data plates shall contain not less
than the following information:
(1) The name and address of the manufacturing plant in which the
manufactured home was manufactured.
(2) The serial number and model designation of the unit and the date
the unit was manufactured.
(3) The statement, ''This manufactured home is designed to comply
with the Federal manufactured home construction and safety standards in
force at the time of manufacture.''
(4) A list of major factory-installed equipment including the
manufacturer's name and the model designation of each appliance.
(5) Reference to the structural zone and wind zone for which the home
is designed and duplicates of the maps as set forth in 3280.305(c)(4).
This information may be combined with the heating/cooling certificate
and insulation zone maps required by 3280.510 and 3280.511.
(6) The statement: ''Design Approval by'' followed by the name of
the agency which approved the design.
(42 FR 960, Jan. 4, 1977. Redesignated at 44 FR 20679, Apr. 6, 1979)
24 CFR 3280.6 Serial number.
(a) A manufactured home serial number which will identify the
manufacturer and the state in which the manufactured home is
manufactured, must be stamped into the foremost cross member. Letters
and numbers must be 3/8 inch minimum in height. Numbers must not be
stamped into hitch assembly or drawbar.
24 CFR 3280.7 Excluded structures.
Certain structures may be excluded from these Standards as modular
homes under 24 CFR 3282.12.
(52 FR 4581, Feb. 12, 1987)
24 CFR 3280.8 Certification label.
(a) A permanent label shall be affixed to each transportable section
of each manufactured home for sale or lease in the United States. This
label shall be separate and distinct from the data plate which the
manufacturer is required to provide under 3280.5 of the standards.
(b) The label shall be approximately 2 in. by 4 in. in size and
shall be permanently attached to the manufactured home by means of 4
blind rivets, drive screws, or other means that render it difficult to
remove without defacing it. It shall be etched on 0.32 in. thick
aluminum plate. The label number shall be etched or stamped with a 3
letter designation which identifies the production inspection primary
inspection agency and which the Secretary shall assign. Each label
shall be marked with a 6 digit number which the label supplier shall
furnish. The labels shall be stamped with numbers sequentially.
(c) The label shall read as follows:
As evidenced by this label No. ABC 000001, the manufacturer
certifies to the best of the manufacturer's knowledge and belief that
this manufactured home has been inspected in accordance with the
requirements of the Department of Housing and Urban Development and is
constructed in conformance with the Federal manufactured home
construction and safety standards in effect on the date of manufacture.
See data plate.
(d) The label shall be located at the tail-light end of each
transportable section of the manufactured home approximately one foot up
from the floor and one foot in from the road side, or as near that
location on a permanent part of the exterior of the manufactured home
unit as practicable. The road side is the right side of the
manufactured home when one views the manufactured home from the tow bar
end of the manufactured home.
(42 FR 960, Jan. 4, 1977. Redesignated at 44 FR 20679, Apr. 6, 1979
and amended at 52 FR 4581, Feb. 12, 1987; 52 FR 47553, Dec. 15, 1987)
24 CFR 3280.8 Subpart B -- Planning Considerations
24 CFR 3280.101 Scope.
Subpart B states the planning requirements in manufactured homes.
The intent of this subpart is to assure the adequacy of architectural
planning considerations which assist in determining a safe and healthful
environment.
24 CFR 3280.102 Definitions.
(a) Gross floor area means all space, wall to wall, including
recessed entries not to exceed 5 sq. ft. and areas under built-in
vanities and similar furniture. Where the ceiling height is less than
that specified in 3280.104, the floor area under such ceilings shall
not be included. Floor area of closets shall not be included in the
gross floor area.
(b) Habitable room means a room or enclosed floor space arranged for
living, eating, food preparation, or sleeping purposes not including
bathrooms, foyers, hallways, and other accessory floor space.
(c) Laundry area means an area containing or designed to contain a
laundry tray, clothes washer and/or clothes dryer.
24 CFR 3280.103 Light and ventilation.
Provisions shall be made for adequate light and ventilation in
accordance with the following:
(a) Each habitable room shall be provided with exterior windows
and/or doors having a total glazed area of not less than 8 percent of
the gross floor area. An area equivalent to not less than 4 percent of
the gross floor area shall be available for unobstructed ventilation.
Glazed areas need not be openable where a mechanical ventilation system
is provided and is capable of producing a change of air in the room(s)
every 30 minutes with not less than one-fifth of the air supply taken
from outside the manufactured home. Windows and doors used for light or
ventilation shall open directly to the outside of the home.
(b) In lieu of the requirements in 3280.103(a), kitchens may be
provided with artificial light and mechanical ventilation capable of
producing a change of air in the room every 30 minutes. (See
3280.710).
(c) Bathroom and toilet compartments. Each bathroom and toilet
compartment shall be provided with artificial light and, in addition, be
provided with external windows or doors having not less than 1 1/2 sq.
ft. of fully openable glazed area, except where a mechanical ventilation
system is provided capable of producing a change of air every 12
minutes. Any mechanical ventilation system shall exhaust directly to
the outside of the manufactured home.
24 CFR 3280.104 Ceiling heights.
(a) Every habitable room and bathroom shall have a minimum ceiling
height of not less than 7 feet, 0 inches for a minimum of 50 percent of
the room's floor area. The remaining area may have a ceiling with a
minimum height of 5 feet, 0 inches. Minimum height under dropped ducts,
beams, etc. shall be 6 feet, 4 inches.
(b) Hallways and foyers shall have a minimum ceiling height of 6
feet, 6 inches.
24 CFR 3280.105 Exit facilities; exterior doors.
(a) Number and location of exterior doors. Manufactured homes shall
have a minimum of two exterior doors located remote from each other.
(1) Required egress doors shall not be located in rooms where a
lockable interior door must be used in order to exit.
(2) In order for exit doors to be considered remote from each other,
they must comply with all of the following:
(i) Both of the required doors must not be in the same room or in a
group of rooms which are not defined by fixed walls.
(ii) Single wide units. Doors may not be less than 12 ft. c-c from
each other as measured in any straight line direction regardless of the
length of path of travel between doors.
(iii) Double wide units. Doors may not be less than 20 ft. c-c from
each other as measured in any straight line direction regardless of the
length of path of travel between doors.
(iv) One of the required exit doors must be accessible from the
doorway of each bedroom without traveling more than 35 ft.
(b) Door design and construction. (1) Exterior swinging doors shall
be constructed in accordance with 3280.405 the ''Standard for Swinging
Exterior Passage Doors for Use in Manufactured Homes''. Exterior
sliding glass doors shall be constructed in accordance with 3280.403
the ''Standard for Windows and Sliding Glass Doors Used in Manufactured
Homes''.
(2) All exterior swinging doors shall provide a minimum 28 inch wide
by 74 inch high clear opening. All exterior sliding glass doors shall
provide a minimum 28 inch wide by 72 inch high clear opening.
(3) Each swinging exterior door other than screen or storm doors
shall have a key-operated lock that has a deadlocking latch or a
key-operated dead bolt with a passage latch. Locks shall not require
the use of a key for operation from the inside.
(4) All exterior doors, including storm and screen doors, opening
outward shall be provided with a safety door check.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 50 FR 9269, Mar. 7, 1985)
24 CFR 3280.106 Exit facilities; egress windows and devices.
(a) Every room designed expressly for sleeping purposes, unless it
has an exit door (see 3280.105), shall have at least one outside window
or approved exit device which meets the requirements of 3280.404, the
''Standard for Egress Windows and Devices for Use in Manufactured
Homes.''
(b) The bottom of the window opening shall not be more than 36 inches
above the floor.
(c) Locks, latches, operating handles, tabs, and any other window
screen or storm window devices which need to be operated in order to
permit exiting, shall not be located in excess of 54 inches from the
finished floor.
(d) Integral rolled-in screens shall not be permitted in an egress
window unless the window is of the hinged-type.
(Secs. 604 and 625 of the National Manufactured Housing Construction
and Safety Standards Act of 1974, 42 U.S.C. 5403 and 5424, and sec. 7(d)
of the Department of Housing and Urban Development Act, 42 U.S.C.
3535(d))
(49 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 49 FR 36086, Sept. 14, 1984; 52 FR 4581, Feb. 12,
1987)
24 CFR 3280.107 Interior privacy.
Bathroom and toilet compartment doors shall be equipped with a
privacy lock.
24 CFR 3280.108 Interior passage.
(a) Interior doors having passage hardware without a privacy lock, or
with a privacy lock not engaged, shall open from either side by a single
movement of the hardware mechanism in any direction.
(b) Each manufactured home interior door, when provided with a
privacy lock, shall have a privacy lock that has an emergency release on
the outside to permit entry when the lock has been locked by a locking
knob, lever, button, or other locking device on the inside.
24 CFR 3280.109 Space planning.
The dimensions set forth in 3280.110 through 3280.113 are intended
to assure that space and a functional arrangement of this space are
provided to accommodate the normal activities of living in the
manufactured home.
24 CFR 3280.110 Room requirements.
(a) Every manufactured home shall have at least one living area with
not less than 150 sq. ft. of gross floor area.
(b) Rooms designed for sleeping purposes shall have a minimum gross
square foot floor area as follows:
(1) All bedrooms shall have at least 50 sq. ft. of floor area.
(2) Bedrooms designed for two or more people shall have 70 sq. ft.
of floor area plus 50 sq. ft. for each person in excess of two.
(c) Every room designed for sleeping purposes shall have accessible
clothes hanging space with a minimum inside depth of 22 inches and shall
be equipped with a rod and shelf.
24 CFR 3280.111 Minimum room dimensions.
The gross floor area required by 3280.110 (a) and (b) shall have no
clear horizontal dimension less than 5 feet except as permitted by
3280.102(a).
24 CFR 3280.112 Toilet compartments.
Each toilet compartment shall be a minimum of 30 inches in width,
except, when the toilet is located adjacent to the short dimension of
the tub, the distance from the tub to the center line of the toilet
shall not be less than 12 inches. At least 21 inches of clear space
shall be provided in front of each toilet.
24 CFR 3280.113 Hallways.
Hallways shall have a minimum horizontal dimension of 28 inches
measured from the interior finished surface to the interior finished
surface of the opposite wall. When appliances are installed in a
laundry area, the measurement shall be from the front of the appliance
to the opposite finished interior surface. When appliances are not
installed and a laundry area is provided, the area shall have a minimum
clear depth of 27 inches in addition to the 28 inches required for
passage. In addition, a notice of the available clearance for
washer/dryer units shall be posted in the laundry area. Minor
protrusions into the minimum hallway width by doorknobs, trim, smoke
detectors or light fixtures are permitted.
24 CFR 3280.114 Glass and glazed openings.
(a) Windows and sliding glass doors. All windows and sliding glass
doors shall meet the requirements of 3280.403 the ''Standard for
Windows and Sliding Glass Doors Used in Manufactured Homes''.
(b) Safety glazing. Glazing in all entrance or exit doors, sliding
glass doors, units (fixed or moving sections), unframed glass doors,
unbacked mirrored wardrobe doors (i.e., mirrors not secured to a backing
capable of being the door itself), shower and bathtub enclosures and
surrounds to a height of 6 feet above the bathroom floor level, storm
doors or combination doors, and in panels located within 12 inches on
either side of exit or entrance doors shall be of a safety glazing
material. Safety glazing material is considered to be any glazing
material capable of passing the requirements of Safety Performance
Specifications and Methods of Test for Safety Glazing Materials Used in
Buildings, ANSI Z97.1-1984.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4581, Feb. 12, 1987)
24 CFR 3280.114 Subpart C -- Fire Safety
Authority: Secs. 604 and 625 of the National Manufactured Housing
Construction and Safety Standards Act of 1974, 42 U.S.C. 5403 and 5424,
and sec. 7(d) of the Department of Housing and Urban Development Act,
42 U.S.C. 3535(d).
Source: 49 FR 32008, Aug. 9, 1984, unless otherwise noted.
24 CFR 3280.201 Scope.
The purpose of this subpart is to set forth requirements that will
assure reasonable fire safety to the occupants by reducing fire hazards
and by providing measures for early detection.
24 CFR 3280.202 Definitions.
(a) The following definitions are applicable to subparts C, H, and I
of the standards:
(1) Combustible material: Any material not meeting the definition of
limited-combustible or noncombustible material.
(2) Flame-spread rating: The measurement of the propagation of flame
on the surface of materials or their assemblies as determined by
recognized standard tests conducted as required by this subpart.
(3) Interior finish: The surface material of walls, fixed or movable
partitions, ceilings, columns, and other exposed interior surfaces
affixed to the home's structure including any materials such as paint or
wallpaper and the substrate to which they are applied. Interior finish
does not include:
(i) Trim and sealant 2 inches or less in width adjacent to the
cooking range and in furnace and water heater spaces provided it is
installed in accordance with the requirements of 3280.203(b) (3) or
(4), and trim 6 inches or less in width in all other areas;
(ii) Windows and frames;
(iii) Single doors and frames and a series of doors and frames not
exceeding 5 feet in width;
(iv) Skylights and frames;
(v) Casings around doors, windows, and skylights not exceeding 4
inches in width;
(vi) Furnishings which are not permanently affixed to the home's
structure;
(vii) Baseboards not exceeding 6 inches in height;
(viii) Light fixtures, cover plates of electrical receptacle outlets,
switches, and other devices;
(ix) Decorative items attached to walls and partitions (i.e.,
pictures, decorative objects, etc.) constituting no more than 10% of the
aggregate wall surface area in any room or space not more than 32 square
feet in surface area, whichever is less;
(x) Plastic light diffusers when suspended from a material which
meets the interior finish provisions of 3280.203(b);
(xi) Coverings and surfaces of exposed wood beams; and
(xii) Decorative items including the following:
(A) Nonstructural beams not exceeding 6 inches in depth and 6 inches
in width and spaced not closer than 4 feet on center;
(B) Nonstructural lattice work;
(C) Mating and closure molding; and
(D) Other items not affixed to the home's structure.
(4) Limited-combustible: A material meeting:
(i) The definition of Article 2-3 of NFPA 220-1979; or
(ii) 5/16-inch or thicker gypsum board.
(5) Noncombustible material: A material meeting the definition of
Article 2-6 of NFPA 220-1979.
(6) Single-station alarm device: An assembly incorporating the smoke
detector sensor, the electrical control equipment, and the
alarm-sounding device in one unit.
(7) Smoke detector: A wall-mounted detector of the ionization
chamber or photoelectric type which detects visible or invisible
particles of combustion and operates from a 120 V AC source of current.
24 CFR 3280.203 Flame spread limitations and fire protection
requirements.
(a) Establishment of flame spread rating. The surface flame spread
rating of interior-finish material shall not exceed the values shown in
3280.203(b) when tested by ''Standard Test Method for Surface Burning
Characteristics of Building Materials, ASTM E 84-84,'' except that the
surface flame spread rating of interior-finish materials required by
3280.203(b) (5) and (6) may be determined by using the ''Standard Test
Method for Surface Flammability of Materials Using a Radiant Heat Energy
Source, ASTM E 162-83.'' However, the following materials need not be
tested to establish their flame spread rating unless a lower rating is
required by these standards.
(1) Flame-spread rating -- 76 to 200.
(i) .035-inch or thicker high pressure laminated plastic panel
countertop;
(ii) 1/4-inch or thicker unfinished plywood with phenolic or urea
glue;
(iii) Unfinished dimension lumber (1-inch or thicker nominal boards);
(iv) 3/8-inch or thicker unfinished particleboard with phenolic or
urea binder;
(v) Natural gum-varnished or latex or alkyd-painted:
(A) 1/4-inch or thicker plywood, or
(B) 3/8-inch or thicker particleboard, or
(C) 1-inch or thicker nominal board;
(vi) 5/16-inch gypsum board with decorative wallpaper; and
(vii) 1/4-inch or thicker unfinished hardboard.
(2) Flame-spread rating -- 25 to 200.
(i) Painted metal;
(ii) Mineral-base acoustic title;
(iii) 5/16-inch or thicker unfinished gypsum wallboard (latex- or
alkyd-painted); and
(iv) Ceramic tile.
(The above-listed material applications do not waive the requirements
of 3280.203(c) or 3280.204 of this subpart)
(b) Flame-spread rating requirements.
(1) The interior finish of all walls, columns, and partitions shall
not have a flame spread rating exceeding 200 except as otherwise
specified herein.
(2) Ceiling interior finish shall not have a flame spread rating
exceeding 75.
(3) Walls adjacent to or enclosing a furnace or water heater and
ceilings above them shall have an interior finish with a flame spread
rating not exceeding 25. Sealants and other trim materials 2 inches or
less in width used to finish adjacent surfaces within these spaces are
exempt from this provision provided that all joints are completely
supported by framing members or by materials having a flame spread
rating not exceeding 25.
(4) Exposed interior finishes adjacent to the cooking range shall
have a flame spread rating not exceeding 50, except that backsplashes
not exceeding 6 inches in height are exempted (Adjacent surfaces include
the exposed vertical surfaces between the range-top height and the
overhead cabinets and/or ceiling. Refer also to 3280.204)(a), ''Kitchen
Cabinet Protection.'') Sealants and other trim materials 2 inches or
less in width used to finish adjacent surfaces are exempt from this
provision provided that all joints are completely supported by a framing
member.
(5) Kitchen cabinet doors, countertops, backsplashes, exposed
bottoms, and end panels shall have a flame spread rating not to exceed
200. Cabinet rails, stiles, mullions, and top strips are exempted.
(6) Finish surfaces of plastic bathtubs, shower units, and tub or
shower doors shall not exceed a flame spread rating of 200.
(c) Fire protective requirements.
(1) Materials used to surface the following areas shall be of limited
combustible material (e.g., 5/16-inch gypsum board, etc.):
(i) The exposed wall adjacent to the cooking range (see
3280.203(b)(4));
(ii) Exposed bottoms and sides of kitchen cabinets as required by
3280.204;
(iii) Interior walls and ceilings enclosing furnace and/or water
heater spaces; and
(iv) Combustible doors which provide interior or exterior access to
furnace and/or water heater spaces. The surface may be interrupted for
louvers ventilating the enclosure. However, the louvers shall not be
constructed of a material of greater combustibility than the door itself
(e.g., plastic louvers on a wooden door).
(2) No burner of a surface cooking unit shall be closer than 12
horizontal inches to a window or an exterior door with glazing.
(49 FR 32008, Aug. 9, 1984, as amended at 52 FR 4581, Feb. 12, 1987;
52 FR 47553, Dec. 15, 1987)
24 CFR 3280.204 Kitchen cabinet protection.
(a) The bottom and sides of combustible kitchen cabinets over cooking
ranges to a horizontal distance of 6 inches from the outside edge of the
cooking range shall be protected with at least 5/16-inch thick gypsum
board or equivalent limited combustible material. One-inch nominal
framing members and trim are exempted from this requirement. The
cabinet area over the cooking range or cooktops shall be protected by a
metal hood (26-gauge sheet metal, or .017 stainless steel, or .024
aluminum, or .020 copper) with not less than a 3-inch eyebrow projecting
horizontally from the front cabinet face. The 5/16-inch thick gypsum
board or equivalent material which is above the top of the hood may be
supported by the hood. A 3/8-inch enclosed air space shall be provided
between the bottom surface of the cabinet and the gypsum board or
equivalent material. The hood shall be at least as wide as the cooking
range.
(b) The 3-inch metal eyebrow required by paragraph (a) of this
section will project from the front and rear cabinet faces when there is
no adjacent surface behind the range, or the 5/16-inch thick gypsum
board or equivalent material shall be extended to cover all exposed rear
surfaces of the cabinet.
(c) The metal hood required by paragraphs (a) and (b) of this section
can be omitted when an oven of equivalent metal protection is installed
between the cabinet and the range and all exposed cabinet surfaces are
protected as described in paragraph (a) of this section.
(d) When a manufactured home is designed for the future installation
of a cooking range, the metal hood and cabinet protection required by
paragraph (a) of this section and the wall-surfacing protection behind
the range required by 3280.203 shall be installed in the factory.
(e) Vertical clearance above cooking top. Ranges shall have a
vertical clearance above the cooking top of not less than 24 inches to
the bottom of combustible cabinets.
24 CFR 3280.205 Carpeting.
Carpeting shall not be used in a space or compartment designed to
contain only a furnace and/or water heater. Carpeting may be used in
other areas where a furnace or water heater is installed, provided that
it is not located under the furnace or water heater.
24 CFR 3280.206 Firestopping.
(a) Firestopping of at least 1-inch nominal lumber, 5/16-inch thick
gypsum board, or the equivalent, shall be provided to cut off concealed
draft openings between walls and partitions, including furred spaces,
and the roof or floors, so as to retard vertical movement of fire. In
particular, such concealed spaces must be constructed so that
floor-to-ceiling concealed spaces on one floor do not communicate with
any concealed space on another floor, any concealed spaces in the floor,
or any concealed space in the roof cavity. A barrier must be installed
to prevent communication between adjacent concealed spaces.
(1) Where the barrier is vertical, it must be made of exterior or
interior covering(s) equivalent to that used on the nearest exposed wall
surface; and
(2) In all other cases, the barrier must be made of 1-inch nominal
lumber, 5/16-inch thick gypsum board, or the equivalent.
(b) A space does not lose its character as a concealed draft opening
if it is filled with insulation or other material or if it is blocked by
a barrier other than as required by paragraph (a) of this section.
(c) All openings for pipes and vents and other penetrations in walls,
floors, and ceilings of furnace and water heater spaces shall be
tight-fitted or firestopped. Pipes, vents, and other penetrations are
tight-fitted when they cannot be moved freely in the opening.
24 CFR 3280.207 Requirements for foam plastic thermal insulating
materials.
(a) General. Foam plastic thermal insulating materials shall not be
used within the cavity of walls (not including doors) or ceilings or be
exposed to the interior of the home unless:
(1) The foam plastic insulating material is protected by an interior
finish of 5/16-inch thick gypsum board or equivalent material for all
cavities where the material is to be installed; or
(2) The foam plastic is used as a sheathing or siding backerboard,
and it: (i) Has a flame spread rating of 75 or less and a
smoke-developed rating of 450 or less (not including outer covering of
sheathing); (ii) does not exceed 3/8-inch in thickness; and (iii) is
separated from the interior of the manufactured home by a minimum of 2
inches of mineral fiber insulation or an equivalent thermal barrier; or
(3) The foam plastic insulating material has been previously accepted
by the Department for use in wall and/or ceiling cavities of
manufactured homes, and it is installed in accordance with any
restrictions imposed at the time of that acceptance; or
(4) The foam plastic insulating material has been tested as required
for its location in wall and/or ceiling cavities in accordance with
testing procedures described in the Illinois Institute of Technology
Research Institute (IITRI) Report, ''Development of Mobile Home Fire
Test Methods to Judge the Fire Safe Performance of Foam Plastic,
J-6461,'' or other full-scale fire tests accepted by the Department, and
it is installed in a manner consistent with the way the material was
installed in the foam plastic test module. The materials shall be
capable of meeting the following acceptance criteria required for their
location.
(i) Wall assemblies. The foam plastic system shall demonstrate
equivalent or superior performance to the control module as determined
by:
(A) Time to reach flashover (600 C in the upper part of the room);
(B) Time to reach an oxygen (O2) level of 14% (rate of O2 depletion),
a carbon monoxide (CO) level of 1%, a carbon dioxide (CO2) level of 6%,
and a smoke level of 0.26 optical density/meter measured at 5 feet high
in the doorway; and
(C) Rate of change concentration for O2, CO, CO2 and smoke measured 3
inches below the top of the doorway.
(ii) Ceiling assemblies. A minimum of three valid tests of the foam
plastic system and one valid test of the control module shall be
evaluated to determine if the foam plastic system domonstrates
equivalent or superior performance to the control module. Individual
factors to be evaluated include intensity of cavity fire
(temperature-time) and post-test damage.
(iii) Post-test damage assessment for wall and ceiling assemblies.
The overall performance of each total system shall also be evaluated in
determining the acceptability of a particular foam plastic insulating
material.
(b) All foam plastic thermal insulating materials used in
manufactured housing shall have a flame spread rating of 75 or less (not
including outer covering or sheathing) and a maximum smoke-developed
rating of 450.
24 CFR 3280.208 Fire detection equipment.
(a) General. At least one smoke detector (which may be a single
station alarm device) shall be installed in the home in the location(s)
specified in paragraph (b) of this section.
(b) Smoke detector locations. (1) A smoke detector shall be
installed on any wall in the hallway or space communicating with each
bedroom area between the living area and the first bedroom door unless a
door(s) separates the living area from that bedroom area, in which case
the detector(s) shall be installed on the living area side as close to
the door(s) as practicable. Homes having bedroom areas separated by any
one or combination of common-use areas such as kitchen, dining room,
living room, or family room (but not a bathroom or utility room), shall
have at least one detector protecting each bedroom area.
(2) When located in hallways, the detector shall be between the
return air intake and the living area.
(3) When a home is equipped or designed for future installation of a
roof-mounted evaporative cooler or other equipment discharging
conditioned air through a ceiling grille into the living space
environment, the detector closest to the air discharge shall be located
no closer than three horizontal feet from any discharge grille.
(4) A smoke detector shall not be placed in a location which impairs
its effectiveness.
(c) Labeling. Smoke detectors shall be labeled as conforming with
the requirements of Underwriters' Laboratories Standard No. 217 --
Third Edition 1985, as amended through October 8, 1985, for ''Single and
Multiple Station Smoke Detectors.''
(d) Installation. Each smoke detector shall be installed in
accordance with its listing. The top of the detector shall be located
on a wall 4 inches to 12 inches below the ceiling. However, when a
detector is mounted on an interior wall below a sloping ceiling, it
shall be located 4 inches to 12 inches below the intersection of the
connecting exterior wall and the sloping ceiling (cathedral ceiling).
The required detector(s) shall be attached to an electrical outlet box
and the detector connected by a permanent wiring method into a general
electrical circuit. There shall be no switches in the circuit to the
detector between the over-current protection device protecting the
branch circuit and the detector. Smoke detector(s) shall not be placed
on the same branch circuit or any circuit protected by a ground fault
circuit interrupter.
(49 FR 32008, Aug. 9, 1984, as amended at 52 FR 4581, Feb. 12, 1987)
24 CFR 3280.209 Fire testing.
All fire testing conducted in accordance with this subpart shall be
performed by nationally recognized testing laboratories which have
expertise in fire technology. In case of dispute, the Secretary shall
determine if a particular agency is qualified to perform such fire
tests.
(49 FR 32011, Aug. 9, 1984)
24 CFR 3280.209 Subpart D -- Body and Frame Construction Requirements
24 CFR 3280.301 Scope.
This subpart covers the minimum requirements for materials, products,
equipment and workmanship needed to assure that the manufactured home
will provide: (a) Structural strength and rigidity, (b) protection
against corrosion, decay, insects and other similar destructive forces,
(c) protection against hazards of windstorm, (d) resistance to the
elements, and (e) durability and economy of maintenance.
24 CFR 3280.302 Definitions.
(a) The following definitions are applicable to subpart D only:
(1) Anchoring equipment means straps, cables, turnbuckles, and
chains, including tensioning devices, which are used with ties to secure
a manufactured home to ground anchors.
(2) Anchoring system means a combination of ties, anchoring
equipment, and ground anchors that will, when properly designed and
installed, resist overturning and lateral movement of the manufactured
home from wind forces.
(3) Tie means strap, cable, or securing devices used to connect the
manufactured home to ground anchors.
(4) Diagonal tie means a tie intended to primarily resist horizontal
forces, but which may also be used to resist vertical forces.
(5) Vertical tie means a tie intended to resist the uplifting or
overturning forces.
(6) Footing means that portion of the support system that transmits
loads directly to the soil.
(7) Ground anchor means any device at the manufactured home stand
designed to transfer manufactured home anchoring loads to the ground.
(8) Hurricane resistive manufactured home means a manufactured home
which meets the wind design load requirements for Zone II in
3280.305(c)(2).
(9) Loads. (i) Dead loads means the weight of all permanent
construction including walls, floors, roof, partition, and fixed service
equipment.
(ii) Live load means the weight superimposed by the use and occupancy
of the manufactured home, including wind load and snow load, but not
including dead load.
(iii) Wind load means the lateral or vertical pressure or uplift on
the manufactured home due to wind blowing in any direction.
(10) Main frame means the structural component on which is mounted
the body of the manufactured home.
(11) Pier means that portion of the support system between the
footing and the manufactured home exclusive of caps and shims.
(12) Sheathing means material which is applied on the exterior side
of a building frame under the exterior weather resistant covering.
(13) Stabilizing devices means all components of the anchoring and
support systems such as piers, footings, ties, anchoring equipment,
ground anchors, and any other equipment which supports the manufactured
home and secures it to the ground.
(14) Support system means a combination of footings, piers, caps, and
shims that will, when properly installed, support the manufactured home.
24 CFR 3280.303 General requirements.
(a) Minimum requirements. The design and construction of a
manufactured home shall conform with the provisions of this standard.
Requirements for any size, weight, or quality of material modified by
the terms of minimum, not less than, at least,'' and similar expressions
are minimum standards. The manufacturer or installer may exceed these
standards provided such deviation does not result in any inferior
installation or defeat the purpose and intent of this standard.
(b) Construction. All construction methods shall be in conformance
with accepted engineering practices to insure durable, livable, and safe
housing and shall demonstrate acceptable workmanship reflecting
journeyman quality of work of the various trades.
(c) Structural analysis. The strength and rigidity of the component
parts and/or the integrated structure shall be determined by engineering
analysis or by suitable load tests to simulate the actual loads and
conditions of application that occur. (See subparts E and J.)
(d) Hurricane resistive design. Only manufactured homes which meet
the applicable requirements of 3280.305(c)(2) may be designated
Designed for Hurricane Zone.'' No similar designation which would imply
hurricane resistance shall be used when the manufactured home does not
meet these requirements.
(e) New materials and methods. (1) Any new material or method of
construction not provided for in this standard and any material or
method of questioned suitability proposed for use in the manufacture of
the structure shall nevertheless conform in performance to the
requirements of this standard.
(2) Unless based on accepted engineering design for the use
indicated, all new manufactured home materials, equipment, systems or
methods of construction not provided for in this standard shall be
subjected to the tests specified in paragraph (g) of this section.
(f) Allowable design stress. The design stresses of all materials
shall conform to accepted engineering practice. The use of materials
not certified as to strength or stress grade shall be limited to the
minimum allowable stresses under accepted engineering practice.
(g) Alternate test procedures. In the absence of listed and
prescribed standards, the manufacturer shall develop or cause to be
developed necessary tests to demonstrate the structural properties and
the significant characteristics of the method employed. Such tests
shall be witnessed by an independent licensed professional engineer or
architect or by a recognized testing organization. Copies of the test
results shall be kept on file by the manufactured home manufacturer.
24 CFR 3280.304 Materials.
(a) Dimension and board lumber shall not exceed 19 percent moisture
content at time of installation.
(b)(1) Standards for some of the generally used materials and methods
of construction are listed in the following table.
(2) Materials and methods of construction utilized in the design and
construction of manufactured homes which are covered by the standards in
the following table, or any applicable portion thereof shall comply with
these requirements.
(3) Engineering analysis and testing methods contained in these
references shall be utilized to judge conformance with accepted
engineering practices required in 3280.303(c).
(4) Materials and methods of installation conforming to these
standards shall be considered acceptable when installed in conformance
with the requirements of this part.
(5) Materials meeting the standards (or the applicable portion
thereof) are considered acceptable unless otherwise specified herein or
unless substantial doubt exists as to conformance.
(c) Wood products shall be identified as complying with the
appropriate standards.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 961, Jan. 4, 1977.
Redesignated at 44 FR 20679, Apr. 6, 1979 and amended at 52 FR 4581,
Feb. 12, 1987)
24 CFR 3280.305 Structural design requirements.
(a) Each manufactured home shall be designed and constructed as a
completely integrated structure capable of sustaining the design load
requirements of this standard and shall be capable of transmitting these
loads to stabilizing devices without exceeding the allowable loads
stresses or deflections. Roof framing shall be securely fastened to
wall framing, walls to floor structure, and floor structure to chassis
to secure and maintain continuity between the floor and chassis, so as
to resist wind overturning and sliding as imposed by design loads in
this part. Uncompressed finished flooring greater than 1/8 inch in
thickness, shall not extend beneath load bearing walls which are
fastened to the floor structure.
(b) Design loads -- (1) Design dead loads. Design dead loads shall
be the actual dead load supported by the structural assembly under
consideration.
(2) Design live loads. The design live loads and wind and snow loads
shall be as specified in this section and shall be considered to be
uniformly distributed. The roof live load or snow load shall not be
considered as acting simultaneously with the wind load and the roof live
or snow load and floor live loads shall not be considered as resisting
the overturning moment due to wind.
(3) When engineering calculations are performed, allowable unit
stresses may be increased as provided in the documents referenced in
3280.304 except as shown otherwise in 3280.306(a).
(c) Wind, snow and roof loads -- (1) Standard wind (Zone I). When a
manufactured home is not designated as Hurricane-Resistive, the
manufactured home and each wind resisting part and portion thereof shall
be designed for horizontal wind loads not less than 15 psf and a net
uplift load of not less than 9 psf.
(2) Hurricane Resistive (Zone II). (i) When a manufactured home is
designated as Hurricane Resistive, the home and each wind resisting part
and portion thereof shall be designed for horizontal wind loads not less
than 25 psf and a net uplift not less than 15 psf.
(ii) For exposures in coastal and other areas where wind records
indicate significant differences, 125 mph or greater, from the wind
loads stated above, the Department may establish more stringent
requirements for homes known to be destined for such areas.
(3) Roof loads. (i) Flat, curved and pitched roofs shall be designed
to resist the following live loads, applied downward on the horizontal
projection as appropriate for the design zone marked on the manufactured
home:
(ii) For exposures in areas (mountainous or other) where snow or wind
records or experience indicate significant differences from the loads
stated above, the Department may establish more stringent requirements
for homes known to be destined for such areas. For snow loads, such
requirements are to be based on a roof snow load of 0.6 of the ground
snow load for areas exposed to wind and a roof snow load of 0.8 of the
ground snow load for sheltered areas.
(iii) Eaves and cornices shall be designed for a net uplift pressure
of 2.5 times the design uplift wind pressure cited in 3280.305(c) (1)
and (2).
(4) The Data Plate posted in the manufactured home (See 3280.5)
shall show for which structural zone(s) of the USA the manufactured home
has been designed and the actual design external snow and/or wind live
loads. The Data plate shall include reproduction of the Load Zone Maps
shown in this section and related information. The Load Zone Maps shall
be not less than one-half the size illustrated.
INSERT ILLUS. NO. 1A
INSERT ILLUS. NO. 2A
(d) Design load deflection. When a structural assembly is subjected
to total design live loads, the deflection for structural framing
members shall not exceed the following:
Where L equals the clear span between supports or two times the
length of a cantilever.
(e) Fastening of structural systems. Roof framing shall be securely
fastened to wall framing, walls to floor structure, and floor structure
to chassis to secure and maintain continuity between the floor and
chassis, so as to resist wind overturning and sliding as imposed by
design loads in this part.
(f) Walls. The walls shall be of sufficient strength to withstand
the load requirements as defined in 3280.305(c) of this part, without
exceeding the deflections as specified in 3280.305(d). The connections
between the bearing walls, floor, and roof framework members shall be
fabricated in such a manner as to provide support for the material used
to enclose the manufactured home and to provide for transfer of all
lateral and vertical loads to the floor and chassis.
(1) Except where substantiated by engineering analysis or tests,
studs shall not be notched or drilled in the middle one-third of their
length.
(2) Interior walls and partitions shall be constructed with
structural capacity adequate for the intended purpose and shall be
capable of resisting a horizontal load of not less than five pounds per
square foot. Finish of walls and partitions shall be securely fastened
to wall framing.
(g) Floors. (1) Floor assemblies shall be designed in accordance
with accepted engineering practice standards to support a minimum
uniform live load of 40 lb/ft2 plus the dead load of the materials. In
addition (but not simultaneously), floors shall be able to support a
200-pound concentrated load on a one-inch diameter disc at the most
critical location with a maximum deflection not to exceed one-eighth
inch relative to floor framing. Perimeter wood joists of more than six
inches depth shall be stabilized against overturning from superimposed
loads as follows: at ends by solid blocking not less than two-inch
thickness by full depth of joist, or by connecting to a continuous
header not less than two-inch thickness and not less than the depth of
the joist with connecting devices; at eight-feet maximum intermediate
spacing by solid blocking or by wood cross-bridging of not less than one
inch by three inches, metal cross-bridging of equal strength, or by
other approved methods.
(2) Wood, wood fibre or plywood floors or subfloors in kitchens,
bathrooms (including toilet compartments), laundry rooms, water heater
compartments, and any other areas subject to excessive moisture shall be
moisture resistant or shall be made moisture resistant by sealing or by
an overlay of nonabsorbent material applied with water-resistant
adhesive. Carpets and/or carpet pads shall not be installed in
concealed spaces subject to excessive moisture such as plumbing fixture
spaces.
(3) Except where substantiated by engineering analysis or tests:
(i) Notches on the ends of joists shall not exceed one-fourth the
joist depth.
(ii) Holes bored in joists shall not be within 2 inches of the top or
bottom of the joist, and the diameter of any such hole shall not exceed
one-third the depth of the joist.
(iii) Notches in the top or bottom of the joists shall not exceed
one-sixth the depth and shall not be located in the middle third of the
span.
(4) Bottom board material (with or without patches) shall meet or
exceed the level of 48 inch-pounds of puncture resistance as tested by
the Beach Puncture Test in accordance with Standard Test Methods for
Puncture and Stiffness of Paperboard, and Corrugated and Solid
Fiberboard, ASTM D-781-1968 (73). The material shall be suitable for
patches and the patch life shall be equivalent to the material life.
Patch installation instruction shall be included in the manufactured
home manufacturer's instructions.
(h) Roofs. (1) Roofs shall be of sufficient strength to withstand
the load requirements as defined in 3280.305 (b) and (c) without
exceeding the deflections specified in 3280.305(d). The connections
between roof framework members and bearing walls shall be fabricated in
such a manner to provide for the transfer of design vertical and
horizontal loads to the bearing walls and to resist uplift forces.
(2) Roofing membranes shall be of sufficient rigidity to prevent
deflection which would permit ponding of water or separation of seams
due to wind, snow, ice, erection or transportation forces.
(3) Cutting of roof framework members for passage of electrical,
plumbing or mechanical systems shall not be allowed except where
substantiated by engineering analysis.
(4) All roof penetrations for electrical, plumbing or mechanical
systems shall be properly flashed and sealed. In addition, where a
metal roof membrane is penetrated, a wood backer shall be installed.
The backer plate shall be not less than 5/16 inch plywood, with exterior
glues, secured to the roof framing system beneath the metal roof, and
shall be of a size to assure that all screws securing the flashing are
held by the backer plate.
(i) Frame construction. The frame shall be capable of transmitting
all design loads to stabilizing devices without exceeding the allowable
load and deflections of this section. The frame shall also be capable
of withstanding the effects of transportation shock and vibration
without degradation as required by subpart J.
(1) Welded connections. (i) All welds shall be made in accordance
with the applicable provisions of the Specification For The Design,
Fabrication, And Erection Of Structural Steel For Buildings,
AISC-S326-1978, The New and the Old Specification for the Design of
Cold-Formed Steel Structural Members, AISI-1980 and the Stainless Steel
Cold-Formed Structural Design Manual, AISI-1974.
(ii) Regardless of the provisions of any reference standard contained
in this subpart, deposits of weld slag or flux shall be required to be
removed only from welded joints at the following locations:
(A) Drawbar and coupling mechanisms;
(B) Main member splices, and
(C) Spring hanger to main member connections.
(2) Protection of metal frames against corrosion. Metal frames shall
be made corrosion resistant or protected against corrosion. Metal
frames may be protected against corrosion by painting.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 44 FR 66195, Nov. 19, 1979; 52 FR 4582, Feb. 12,
1987)
24 CFR 3280.306 Windstorm protection.
(a) Provisions for support and anchoring systems. Each manufactured
home shall have provisions for support and anchoring systems, which,
when properly designed and installed, will resist overturning and
lateral movement (sliding) of the manufactured home as imposed by the
respective design loads. The design wind loads to be utilized for
calculating resistance to overturning and lateral movement shall be the
wind loads indicated in 3280.305(c)(1) and (2) increased by a factor of
safety of 1.5. The basic allowable stresses of materials required to
resist overturning and lateral movement shall not be increased in the
design and proportioning of these members.
(1) The provisions of this section shall be followed and the support
and anchoring systems shall be designed by a Registered Professional
Engineer or Architect.
(2) The manufacturer of each manufactured home is required to make
provision for the support and anchoring systems but is not required to
provide the anchoring equipment or stabilizing devices. When the
manufacturer's installation instructions provide for the main frame
structure to be used as the points for connection of diagonal ties, no
specific connecting devices need be provided on the main frame
structure.
(b) The manufacturer shall provide printed instructions with each
manufactured home specifying the location and required capacity of
stabilizing devices on which the design is based. The manufacturer
shall provide drawings and specifications certified by a registered
professional engineer indicating at least one acceptable system of
anchorage including the details of required straps or cables, their end
connections and all other devices needed to transfer the wind loads from
the manufactured home to the ground anchors.
(c) The provisions made for anchoring systems shall be based on the
following design criteria for manufactured homes.
(1) The minimum number of ties required per side shall be as required
to resist the design loads stated in 3280.305(c) (1) and (2).
(2) Ties shall be as evenly spaced as practicable along the length of
the manufactured home with not more than 8 feet open-end spacing on each
end.
(3) When continuous straps are provided as vertical ties, such ties
shall be positioned at rafters and studs. Where a vertical tie and
diagonal ties are located at the same place, both ties may be connected
to a single ground anchor, provided that the anchor used is capable of
carrying both loadings.
(4) Add-on sections of expandable manufactured homes shall have
provisions for vertical ties at the exposed ends.
(d) Double-wide manufactured homes require only diagonal ties. These
shall be placed along the main frame and below the outer side walls.
(e) Protection shall be provided at sharp corners where the anchoring
system requires the use of external cables or straps. Protection shall
also be provided to minimize damage to roofing or sliding by the cable
or strap.
(f) Anchoring equipment shall be capable of resisting an allowable
working load equal to or exceeding 3,150 pounds and shall be capable of
withstanding a 50 percent overload (4,725 pounds total) without failure
of either the anchoring equipment or the attachment point on the
manufactured home.
(g) Anchoring equipment exposed to weathering shall have a resistance
to weather deterioration at least equivalent to that provided by a
coating of zinc on steel of not less than 0.30 ounces per square foot of
surface coated.
(1) Slit or cut edges of zinc-coated steel strapping do not need to
be zinc coated.
(2) Type 1, Finish B, Grade 1 steel strapping, 1 1/4 inches wide and
0.035 inch thick, conforming with Federal Specification QQ-S-781H-1974,
with 1977 Amendment 2 and Notice I, Strapping, Steel, and Seals, is
judged to conform with the provisions of this section and paragraph (f)
of this section.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4583, Feb. 12, 1987)
24 CFR 3280.307 Resistance to elements and use.
(a) Exterior coverings shall be of moisture and weather resistive
materials attached with corrosion resistant fasteners to resist wind,
snow and rain. Metal coverings and exposed metal structural members
shall be of corrosion resistant materials or shall be protected to
resist corrosion. All joints between portions of the exterior covering
shall be designed, and assembled to protect against the infiltration of
air and water, except for any designed ventilation of wall or roof
cavity.
(b) Joints between dissimilar materials and joints between exterior
coverings and frames of openings shall be protected with a compatible
sealant suitable to resist infiltration of air or water.
(c) Where adjoining materials or assemblies of materials are of such
nature that separation can occur due to expansion, contraction, wind
loads or other loads induced by erection or transportation, sealants
shall be of a type that maintains protection against infiltration or
penetration by air, moisture or vermin.
(d) Exterior surfaces shall be sealed to resist the entrance of
rodents.
24 CFR 3280.308 Formaldehyde emission controls for certain wood
products.
(a) Formaldehyde emission levels. All plywood and particleboard
materials bonded with a resin system or coated with a surface finish
containing formaldehyde shall not exceed the following formaldehyde
emission levels when installed in manufactured homes:
(1) Plywood materials shall not emit formaldehyde in excess of 0.2
parts per million (ppm) as measured by the air chamber test method
specified in 3280.406.
(2) Particleboard materials shall not emit formaldehyde in excess of
0.3 ppm as measured by the air chamber test specified in 3280.406.
(b) Product certification and continuing qualification. All plywood
and particleboard materials to be installed in manufactured homes which
are bonded with a resin system or coated with a surface finish
containing formaldehyde, other than an exclusively phenol-formaldehyde
resin system or finish, shall be certified by a nationally recognized
testing laboratory as complying with paragraph (a) of this section.
(1) Separate certification shall be done for each plant where the
particleboard is produced or where the plywood or particleboard is
surface-finished.
(2) To certify plywood or particleboard, the testing laboratory shall
witness or conduct the air chamber test specified in 3280.406 on
randomly selected panels initially and at least quarterly thereafter.
(3) The testing laboratory must approve a written quality control
plan for each plant where the particleboard is produced or finished or
where the plywood is finished. The quality control plan must be
designed to assure that all panels comply with paragraph (a) of this
section. The plan must establish ongoing procedures to identify
increases in the formaldehyde emission characteristics of the finished
product resulting from the following changes in production.
(i) In the case of plywood:
(A) The facility where the unfinished panels are produced is changed;
(B) The thickness of the panels is changed so that the panels are
thinner; or
(C) The grooving pattern on the panels is changed so that the grooves
are deeper or closer together.
(ii) In the case of particleboard:
(A) The resin formulation is changed so that the formaldehyde-to-urea
ratio is increased;
(B) The amount of formaldehyde resin used is increased; or
(C) The press time is decreased.
(iii) In the case of plywood or particleboard:
(A) The finishing or top coat is changed and the new finishing or top
coat has a greater formaldehyde content; or
(B) The amount of finishing or top coat used on the panels is
increased, provided that such finishing or top coat contains
formaldehyde.
(4) The testing laboratory shall periodically visit the plant to
monitor quality control procedures to assure that all certified panels
meet the standard.
(5) To maintain its certification, plywood or particleboard must be
tested by the air chamber test specified in 3280.406 whenever one of
the following events occurs:
(i) In the case of particleboard, the resin formulation is changed so
that the formaldehyde-to-urea ratio is increased; or
(ii) In the case of particleboard or plywood, the finishing or top
coat is changed and the new finishing or top coat contains formaldehyde;
or
(iii) In the case of particleboard or plywood, the testing laboratory
determines that an air chamber test is necessary to assure that panels
comply with paragraph (a) of this section.
(6) In the event that an air chamber test measures levels of
formaldehyde from plywood or particleboard in excess of those permitted
under paragraph (a) of this section, then the tested product's
certification immediately lapses as of the date of production of the
tested panels. No panel produced on the same date as the tested panels
or on any day thereafter may be used or certified for use in
manufactured homes.
(i) Provided, however, that a new product certification may be
obtained by testing randomly selected panels which were produced on any
day following the date of production of the tested panels. If such
panels pass the air chamber test specified in 3280.406, then the
plywood or particleboard produced on that day and subsequent days may be
used and certified for use in manufactured homes.
(ii) Provided further, that plywood or particleboard produced on the
same day as the tested panels, and panels produced on subsequent days,
if not certified pursuant to paragraph (b)(4)(i) of this section, may be
used in manufactured homes only under the following circumstances:
(A) Each panel is treated with a scavenger, sealant, or other means
of reducing formaldehyde emissions which does not adversely affect the
structural quality of the product; and
(B) Panels randomly selected from the treated panels are tested by
and pass the air chamber test specified in 3280.406.
(c) Panel identification. Each plywood and particleboard panel to be
installed in manufactured homes which is bonded or coated with a resin
system containing formaldehyde, other than an exclusively
phenol-formaldehyde resin system, shall be stamped or labeled so as to
identify the product manufacturer, date of production and/or lot number,
and the testing laboratory certifying compliance with this section.
(d) Treatment after certification. If certified plywood or
particleboard subsequently is treated with paint, varnish, or any other
substance containing formaldehyde, then the certification is no longer
valid. In such a case, each stamp or label placed on the panels
pursuant to paragraph (c) of this section must be obliterated. In
addition, the treated panels may be recertified and reidentified in
accordance with paragraphs (b) and (c) of this section.
(Secs. 604 and 625 of the National Manufactured Housing Construction
and Safety Standards Act of 1974, 42 U.S.C. 5403 and 5424, and sec. 7(d)
of the Department of Housing and Urban Development Act, 42 U.S.C.
3535(d))
(49 FR 32011, Aug. 9, 1984)
24 CFR 3280.309 Health Notice on formaldehyde emissions.
(a) Each manufactured home shall have a Health Notice on formaldehyde
emissions prominently displayed in a temporary manner in the kitchen
(i.e., countertop or exposed cabinet face). The Notice shall read as
follows:
Some of the building materials used in this home emit formaldehyde.
Eye, nose, and throat irritation, headache, nausea, and a variety of
asthma-like symptoms, including shortness of breath, have been reported
as a result of formaldehyde exposure. Elderly persons and young
children, as well as anyone with a history of asthma, allergies, or lung
problems, may be at greater risk. Research is continuing on the
possible long-term effects of exposure to formaldehyde.
Reduced ventilation resulting from energy efficiency standards may
allow formaldehyde and other contaminants to accumulate in the indoor
air. Additional ventilation to dilute the indoor air may be obtained
from a passive or mechanical ventilation system offered by the
manufacturer. Consult your dealer for information about the ventilation
options offered with this home.
High indoor temperatures and humidity raise formaldehyde levels.
When a home is to be located in areas subject to extreme summer
temperatures, an air-conditioning system can be used to control indoor
temperature levels. Check the comfort cooling certificate to determine
if this home has been equipped or designed for the installation of an
air-conditioning system.
If you have any questions regarding the health effects of
formaldehyde, consult your doctor or local health department.
(b) The Notice shall be legible and typed using letters at least 1/4
inch in size. The title shall be in red and typed using letters at
least 3/4 inch in size.
(c) The Notice shall not be removed by any party until the entire
sales transaction has been completed (refer to part 3282 -- Manufactured
Home Procedural and Enforcement Regulations for provisions regarding a
sales transaction).
(d) A copy of the Notice shall be included in the Consumer Manual
(refer to part 3283 -- Manufactured Home Consumer Manual Requirements).
(Secs. 604 and 625 of the National Manufactured Housing Construction
and Safety Standards Act of 1974, 42 U.S.C. 5403 and 5424, and sec. 7(d)
of the Department of Housing and Urban Development Act, 42 U.S.C.
3535(d))
(49 FR 32012, Aug. 9, 1984, as amended at 54 FR 46049, Nov. 1, 1989)
24 CFR 3280.309 Subpart E -- Testing
24 CFR 3280.401 Structural load tests.
Every structural assembly tested shall be capable of meeting the
Proof Load Test or the Ultimate Load Test as follows:
(a) Proof load tests. Every structural assembly tested shall be
capable of sustaining its dead load plus superimposed live loads equal
to 1.75 times the required live loads for a period of 12 hours without
failure. Tests shall be conducted with loads applied and deflections
recorded in 1/4 design live load increments at 10-minute intervals until
1.25 times design live load plus dead load has been reached. Additional
load shall then be applied continuously until 1.75 times design live
load plus dead load has been reached. Assembly failure shall be
considered as design live load deflection (or residual deflection
measured 12 hours after live load removal) which is greater than the
limits set in 3280.305(d), rupture, fracture, or excessive yielding.
An assembly to be tested shall be of the minimum quality of materials
and workmanship of the production. Each test assembly, component or
subassembly shall be identified as to type and quality or grade of
material. All assemblies, components or subassemblies qualifying under
this section shall be subject to a continuing qualification testing
program acceptable to the Department.
(b) Ultimate load tests. Ultimate load tests shall be performed on a
minimum of three assemblies to generally evaluate the structural design.
Every structural assembly tested shall be capable of sustaining its
total dead load plus live loads increased by a factor of safety
consistent with the material being tested. Factors of safety shall be
based on nationally recognized standards and approved by the Department.
Tests shall be conducted with loads applied and deflections recorded in
1/4 design live load increments at 10-minute intervals until 1.25 times
design live load plus dead load has been reached. Additional loading
shall then be applied continuously until failure occurs or 1.50 times
the factor of safety times the design live load plus the dead load is
reached. Assembly failure shall be considered as design live load
deflection greater than the limits set in 3208.305(d) rupture,
fracture, or excessive yielding. Assemblies to be tested shall be
representative of average quality or materials and workmanship of the
production. Each test assembly, component, or subassembly shall be
identified as to type and quality or grade of material. All assemblies,
components, or subassemblies qualifying under this section shall be
subject to a periodic qualification testing program acceptable to the
Department.
24 CFR 3280.402 Test procedure for roof trusses.
(a) Roof load tests. The following is an acceptable test procedure,
consistent with the provisions of 3280.401, for roof trusses that are
supported at the ends and support design loads. Where roof trusses act
as support for other members, act as cantilevers, or support
concentrated loads, they shall be tested accordingly.
(b) General. Trusses may be tested in pairs or singly in a suitable
test facility. When tested singly, simulated lateral support of the
test assembly may be provided, but in no case shall this lateral support
exceed that which is specified for the completed manufactured home.
When tested in pairs, the trusses shall be spaced at the design spacing
and shall be mounted on solid support accurately positioned to give the
required clear span distance (L) as specified in the design. The top
and bottom chords shall be braced and covered with the material, with
connections or method of attachment, as specified by the completed
manufactured home.
(1) As an alternate test procedure, the top chord may be sheathed
with 1/4 inch by 12 inch plywood strips. The plywood strips shall be at
least long enough to cover the top chords of the trusses at the
designated design truss spacing. Adjacent plywood strips must be
separated by at least 1/8 inch. The plywood strip shall be nailed with
4d nails or equivalent staples not closer than 8 inches on center along
the top chord. The bottom chords of the adjacent trusses may be either:
(i) Unbraced, (ii) laterally braced together (not cross braced) with
1'' x 2'' stripping not closer than 24 inches on center nailed with only
one 6d nail at each truss, or (iii) covered with the material, with
connections or methods of attachment, as specified for the completed
manufactured home.
(2) Truss deflections will be measured relative to a taut wire
running over the support and weighted at the end to insure constant
tension or other approved methods. Deflections will be measured at the
two quarter points and at midspan. Loading shall be applied to the top
chord through a suitable hydraulic, pneumatic, or mechanical system,
masonry units, or weights to simulate design loads. Load units for
uniformly distributed loads shall be separated so that arch action does
not occur, and shall be spaced not greater than 12 inches on center so
as to simulate uniform loading.
(c) Nondestructive test procedure -- (1) Dead load plus live load.
(i) Noting figure A-1, measure and record initial elevation of the truss
in test position at no load.
INSERT ILLUS. 3A
24 CFR 3280.402
(ii) Apply load units to the top chord of the truss equal to the full
dead load of roof and ceiling. Measure and record deflections.
(iii) Maintaining the dead load, add live load in approximate 1/4
design live load increments. Measure the deflections after each loading
increment. Apply incremental loads at a uniform rate such that
approximately one-half hour is required to establish the total design
load condition. Measure and record the deflections five minutes after
loads have been applied. The maximum deflection due to design live load
(deflection measured in step (iii) minus step (ii)) shall not exceed
L/180, where L is a clear span measured in the same units.
(iv) Continue to load truss to dead load plus 1.75 times the design
live load. Maintain this loading for 12 hours and inspect the truss for
failure.
(v) Remove the total superimposed live load. Trusses not recovering
to at least the L/180 position within 12 hours shall be considered as
failing.
(2) Uplift loads. This test shall only be required for truss designs
which may be critical under uplift load conditions.
(i) Measure and record initial elevation of the truss in an inverted
test position at no load. Bottom chord of the truss shall be mounted in
the horizontal position.
(ii) Apply the uplift load as stated in 3280.305(c) to the bottom
chord of the truss. Measure and record the deflections 5 minutes after
the load has been applied.
(iii) Continue to load the truss to 1.75 times the design uplift
load. Maintain this load for 3 hours and inspect the truss for failure.
(iv) Remove applied loads and within three hours the truss must
recover to at least L/180 position, where L is a clear span measured in
the same units.
(d) Destructive test procedure. (1) Destructive tests shall be
performed on three trusses to generally evaluate the truss design.
(2) Noting Figure A-1, apply the load units to the top chord of the
truss assembly equal to full dead load of roof and ceiling. Measure and
record deflections. Then apply load and record deflections in 1/4
design live load increments at 10-minute intervals until 1.25 times
design live load plus dead load has been reached.
(3) Additional loading shall then be applied continuously until
failure occurs or the factor of safety times the design live load plus
the dead load is reached.
(4) Assembly failure shall be considered as design live load
deflection greater than the limits set in 3280.305(d), rupture,
fracture, or excessive yielding.
(5) The assembly shall be capable of sustaining the dead load plus
the applicable factor of safety times the design live load (the
applicable factor of safety for wood trusses shall be taken as 2.50).
(e) Trusses qualifying under the nondestructive test procedure.
Tests 3208.402(c) (1) and (2) (when required), shall be subject to a
continuing qualification testing program acceptable to the Department.
Trusses qualifying under the destructive test procedures, Tests
3280.402 (c)(2) (when required), and (d), shall be subject to periodic
tests only.
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 961, Jan. 4, 1977.
Redesignated at 44 FR 20679. Apr. 6, 1979)
24 CFR 3280.403 Standard for windows and sliding glass doors used in
manufactured homes.
(a) Scope. This section sets the requirements for prime windows and
sliding glass doors except for windows used in entry doors. Windows so
mounted are components of the door and thus are excluded from this
standard.
(b) Standard. All primary windows and sliding glass doors shall
comply with AAMA standard 1701.2-85, Primary Window and Sliding Glass
Door Voluntary Standard for Utilization in Manufactured Housing.
(c) Installation. All primary windows and sliding glass doors shall
be installed in a manner which allows proper operation and provides
protection against the elements (see 3280.307).
(d) Glass. (1) Safety glazing materials, where used, shall meet ANSI
Z97.1-1984, ''Safety Performance Specifications and Methods of Test for
Safety Glazing Materials Used in Buildings.''
(2) Sealed insulating glass, where used, shall meet all performance
requirements for class C in accordance with ASTM E-774-84a, Standard
Specification for Sealed Insulating Glass Units. The sealing system
shall be qualified in accordance with ASTM E-773-83, Standard Test
Method for Seal Durability of Sealed Insulating Glass Units. Each glass
unit shall be permanently identified with the name of the insulating
glass manufacturer.
(e) Certification. All primary windows and sliding glass doors to be
installed in manufactured homes shall be certified as complying with
AAMA Standard 1701.2-1985.
(1) All such windows and doors shall show evidence of certification
by affixing a quality certification label to the product in accordance
with ANSI Z34.1-1982, ''For Certification-Third-Party Certification
Program.''
(2) In determining certifiability of the products, an independent
quality assurance agency shall conduct preproduction specimen tests in
accordance with AAMA 1702.2-1985. Further, such agency shall inspect the
product manufacturer's facility at least twice per year.
(52 FR 4583, Feb. 12, 1987, as amended at 52 FR 35543, Sept. 22,
1987)
24 CFR 3280.404 Standard for egress windows and devices for use in
manufactured homes.
(a) Scope and purpose. The purpose of this section is to establish
the requirements for the design, construction, and installation of
windows and approved devices intended to be used as an emergency exit
during conditions encountered in a fire or similar disaster.
(b) Performance. Egress windows including auxiliary frame and seals,
if any, shall meet all requirements of AAMA 1701.2-1985, ''Primary
Window and Sliding Glass Door Voluntary Standard for Utilization in
Manufactured Housing,'' and AAMA 1704-1985, ''Voluntary Standard Egress
Window Systems for Utilization in Manufactured -- Housing.''
(c) Installation. (1) The installation of egress windows or devices
shall be installed in a manner which allows for proper operation and
provides protection against the elements. (See 3280.307.)
(2) An operational check of each installed egress window or device
shall be made at the manufactured home factory. All egress windows and
devices shall be openable to the minimum required dimension without
binding or requiring the use of tools. Any window or device failing
this check shall be repaired or replaced. A repaired window shall
conform to its certification. Any repaired or replaced window or device
shall pass the operational check.
(d) Operating instructions. Operating instructions shall be affixed
to each egress window and device and carry the legend ''Do Not Remove.''
(e) Certification of Egress Windows and Devices. Egress windows and
devices shall be listed in accordance with the procedures and
requirements of AAMA 1704-1985.
(52 FR 4583, Feb. 12, 1987)
24 CFR 3280.405 Standard for swinging exterior passage doors for use in
manufactured homes.
(a) Introduction. This standard applies to all exterior passage door
units, excluding sliding doors and doors used for access to utilities
and compartments. This standard applies only to the door frame
consisting of jambs, head and sill and the attached door or doors.
(b) Performance requirements. The design and construction of
exterior door units shall meet all requirements of AAMA 1702.2-1985,
Swinging Exterior Passage Doors Voluntary Standard for Utilization in
Manufactured -- Housing.
(c) Materials and methods. Any material or method of construction
shall conform to the performance requirements as outlined in paragraph
(b) of this section. Wood materials or wood based materials shall also
conform to the following:
(1) Wood. Doors shall conform to the type 1 requirements of
''ANSI/NWMA I.S.1-80, With 1983 Addendum, Wood Flush Doors.''
(2) Plywood. Plywood shall be exterior type and preservative treated
in accordance with ''NWMA I.S. 4-81, Water Repellent Preservative
Treatment for Millwork.''
(d) Exterior doors. All swinging exterior doors shall be installed
in a manner which allows proper operation and provides protection
against the elements (see 3280.307).
(e) Certification. All swinging exterior doors to be installed in
manufactured homes shall be certified as complying with AAMA Standard
1702.2-1985.
(1) All such doors shall show evidence of certification by affixing a
quality certification label to the product in accordance with ANSI
Z34.1-1982, ''For Certification-Third-Party Certification Program.''
(2) In determining certifiability of the products, an independent
quality assurance agency shall conduct preproduction specimen test in
accordance with AAMA 1701.2-1985. Further, such agency shall inspect the
product manufacturer's facility at least twice per year.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4583, Feb. 12, 1987; 52 FR 35543, Sept. 22,
1987)
24 CFR 3280.406 Air chamber test method for certification and
qualification of formaldehyde emission levels.
(a) Preconditioning. Preconditioning of plywood or particleboard
panels for air chamber tests shall be initiated as soon as practicable
but not in excess of 30 days after the plywood or particleboard is
produced or surface-finished, whichever is later, using randomly
selected panels.
(1) If preconditioning is to be initiated more than two days after
the plywood or particleboard is produced or surface-finished, whichever
is later, the panels must be dead-stacked or air-tight wrapped until
preconditioning is initiated.
(2) Panels selected for testing in the air chamber shall not be taken
from the top or botton of the stack.
(b) Testing. Testing shall be conducted in accordance with the
Large-Scale Test Method for Determining Formaldehyde Emissions From Wood
Products, Large Chamber Method FTM 2-1983, NPA/HPMA for Manufactured
Housing components, with the following exceptions:
Testing conditions for operation of the chambers shall be as follows:
(1) The chamber shall be operated indoors.
(2) Plywood and particleboard panels shall be individually tested in
accordance with the following loading ratios:
(i) Plywood -- 0.29 Ft2/Ft3, and
(ii) Particleboard -- 0.13 Ft2/Ft3.
(3) Temperature to be maintained inside the chamber shall be 77 plus
or minus 2 F.
(4) The test concentration (C) shall be standardized to a level (CO)
at a temperature (tO) of 77 F and 50% relative humidity (HO) by the
following formula:
C = CO (1+Ax (H^HO)) e^R(1/t^1/tO) where:
C = Test formaldehyde concentration
CO = Standardized formaldehyde concentration
e = Natural log base
R = Coefficient of temperature (9799)
t = Actual test condition temperature (OK)
tO = Standardized temperature (OK)
A = Coefficient of humidity (0.0175)
H = Actual relative humidity (%)
HO = Standardized relative humidity (%)
The standardized level (CO) is the concentration used to determine
compliance with 3280.308(a).
(5) The air chamber shall be inspected and recalibrated at least
annually to insure its proper operation under test conditions.
(Secs. 604 and 625 of the National Manufactured Housing Construction
and Safety Standards Act of 1974, 42 U.S.C. 5403 and 5424, and sec. 7(d)
of the Department of Housing and Urban Development Act, 42 U.S.C.
3535(d))
(49 FR 32012, Aug. 9, 1984)
24 CFR 3280.406 Subpart F -- Thermal Protection
24 CFR 3280.501 Scope.
This subpart sets forth the requirements for condensation control,
air infiltration, thermal insulation and certification for heating and
comfort cooling.
24 CFR 3280.502 Definitions.
(a) The following definitions are applicable to subpart F only:
(1) Pressure envelope means that primary air barrier surrounding the
living space which serves to limit air leakage. In construction using
ventilated cavities, the pressure envelope is the interior skin.
(2) Thermal envelope area means the sum of the surface areas of
outside walls, ceiling and floor, including all openings. The wall area
is measured by multiplying outside wall lengths by the inside wall
height from floor to ceiling. The floor and ceiling areas are
considered as horizontal surfaces using exterior width and length.
24 CFR 3280.503 Materials.
Materials used for insulation shall be of proven effectiveness and
adequate durability to assure that required design conditions concerning
thermal transmission are attained.
24 CFR 3280.504 Condensation control (vapor barriers).
(a) Ceilings. Ceilings shall have a vapor barrier having a permeance
not greater than 1 perm (dry cup method) installed on the living space
side of the roof cavity.
(b) Exterior walls. (1) Exterior walls shall have a vapor barrier
not greater than 1 perm (dry cup method) installed on the living space
side of the wall, or (2) unventilated wall cavities shall have an
external covering and/or sheathing which forms the pressure envelope.
The covering and/or sheathing shall have a combined permeance of not
less than 5.0 perms. In the absence of test data, combined permeance may
be computed using the formula: PTotal=(1/((1/P1)+(1/P2)))
where P1 and P2 are the permeance values of the exterior covering and
sheathing in perms.
Formed exterior siding applied in sections with joints not caulked or
sealed shall not be considered to restrict water vapor transmission, or
(3) wall cavities shall be constructed so that ventilation is provided
to dissipate any condensation occurring in these cavities.
24 CFR 3280.505 Air infiltration.
(a) Envelope air infiltration. The opaque envelope shall be designed
and constructed to limit air infiltration to the living area of the
home. Any design, material, method or combination thereof which
accomplishes this goal may be used. The goal of the infiltration
control criteria is to reduce heat loss/heat gain due to infiltration as
much as possible without impinging on health and comfort and within the
limits of reasonable economics.
(1) Envelope penetrations. Plumbing, mechanical and electrical
penetrations of the pressure envelope not exempted by this part, and
installations of window and door frames shall be constructed or treated
to limit air infiltration. Penetrations of the pressure envelope made
by electrical equipment, other than distribution panel boards and cable
and conduit penetrations, are exempt from this requirement. Cable
penetrations through outlet boxes are considered exempt.
(2) Joints between major envelope elements. Joints not designed to
limit air infiltration between wall-to-wall, wall-to-ceiling and
wall-to-floor connections shall be caulked or otherwise sealed. When
walls are constructed to form a pressure envelope on the outside of the
wall cavity, they are deemed to meet this requirement.
24 CFR 3280.506 Heat loss.
The manufactured home heat loss/heat gain shall be determined by
methods outlined in 3280.508 and 3280.509. The outdoor winter design
temperature zone for which the manufactured home is acceptable and the
lowest outdoor temperature to which the installed heating equipment will
maintain a temperature of 70 F shall be certified as specified in
3280.510 of this subpart.
(a) Transmission heat loss coefficient. The overall coefficient of
heat transmission of the manufactured home for the respective zones and
an indoor design temperature of 70 F, including internal and external
ducts, and excluding infiltration ventilation and condensation control,
shall not exceed the B.T.U./(hr.) (sq. ft.) (F) of the manufactured home
envelope area as tabulated below
(b) To assure uniform heat transmission in manufactured homes,
cavities in exterior walls, floors, and ceilings shall be provided with
thermal insulation.
(c) Manufactured homes designed for Zones II and III shall be factory
equipped with storm windows or insulating glass.
24 CFR 3280.507 Comfort heat gain.
Information necessary to calculate the home cooling load shall be
provided as specified in this part.
(a) Transmission heat gains. Homes complying with this section shall
meet the minimum heat loss transmission coefficients specified in
3280.506(a).
24 CFR 3280.508 Heat loss, heat gain and cooling load calculations.
Information, values and data necessary for heat loss and heat gain
determinations shall be taken from the 1981 ASHRAE Handbook of
Fundamentals, chapters 20, 21, 22, 23, 25, 26, and 35. The following
portions of those chapters are not applicable:
20.14 Masonry Construction
20.14 Floor Systems
20.17 Underground Pipe Insulation
20.18 Temperatures Above Ambient, Temperatures Below Ambient
20.18 Tanks, Vessels and Equipment
20.20 Refrigerated Rooms and Buildings
20.24 Part VI Land Transport Vehicles
20.27 Part VII Environmental Spaces
22.1 Ventilation Requirements, Minimum Outdoor Air Supply Rates
22.11 Air Leakage Through Walls of Elevators and Stair Shafts
22.13 Swinging Door Entrances
22.19 References
25.4 Ground Temperature
25.4 Crawl Space Temperature
25.4 Calculation of Heat Loss From Crawl Spaces
25.6 Calculating Transmission of Heat Loss From Basement
25.6 Design Temperatures
25.8 Calculating Transmission Heat Loss From Floor Slabs
25.11 Consideration of Pick-up Load
26.37 Heat Gain by Conduction Through Interior Partitions, Ceilings
and Floor
(52 FR 4584, Feb. 12, 1987)
INSERT ILLUS. NO. 4A
24 CFR 3280.508
24 CFR 3280.509 Criteria in absence of specific data.
In the absence of specific data, for purposes of heat-loss/gain
calculation, the following criteria shall be used:
(a) Infiltration Heat Loss. In the absence of measured infiltration
heat loss data, the following formula shall be used to calculate heat
loss due to infiltration and intermittently operated fans exhausting to
the outdoors. The perimeter calculation shall be based on the
dimensions of the pressure envelope.
Infiltration Heat-Loss=0.7 (T) (ft. of perimeter), BTU/hr.
where: T=70 minus the heating system capacity certification
temperature stipulated in the Heating Certificate, in F.
(b) Framing areas.
(c) Insulation compression. Insulation compressed to less than
nominal thickness shall have its nominal R-values reduced for that area
which is compressed in accordance with the following graph:
INSERT ILLUS. NO. 15A
24 CFR 3280.509
When insulation is installed over the framing members the thermal
performance of the insulation is reduced due to compression at the
framing members. The Resistance value of the insulation between the
framing members is reduced by 12.5 percent for framing members 16''
O.C., 8.5 percent for framing members 24'' O.C., and 4 percent for
framing members 48'' O.C.
(d) Air supply ducts within floor cavity. Air supply ducts located
within a floor cavity shall be assumed to be heating or cooling the
floor cavity to living space temperatures unless the duct is
structurally isolated by the framing system or thermally insulated from
the rest of the floor cavity with a thermal insulation at least equal to
R-4.
(e) Air supply ducts within ceiling cavity. Where supply ducts are
located in ceiling cavities, the influence of the duct on cavity
temperatures shall be considered in calculating envelope heat loss or
heat gain.
(f) The supply duct loss (and/or heat gain where applicable -- See
3280.511) shall be calculated using the actual duct surface area and the
actual thickness of insulation between the duct and outside of the
manufactured home. If there is an air space of at least 1/2 inch
between the duct and the insulation, heat loss/gain need not be
calculated if the cavity in which the duct is located is assumed to be
at living space temperature. The average temperature inside the supply
duct, including ducts installed outside the manufactured home, shall be
assumed to be 130 F for purposes of calculation of heat loss and 60 F
for heat gain.
(g) Return air cavities. Cavities used as return air plenums shall
be considered to be at living space temperature.
24 CFR 3280.510 Heat loss certificate.
The manufactured home manufacturer shall permanently affix the
following ''Certificate'' to an interior surface of the home that is
readily visible to the homeowner. The ''Certificate'' shall specify the
following:
(a) Heating zone certification. The design zone at which the
manufactured home heat loss complies with 3280.506(a).
(b) Outdoor certification temperature. The lowest outdoor
temperature at which the installed heating equipment will maintain a 70
F temperature inside the home without storm sash or insulating glass for
Zone I and with storm sash or insulating glass or Zones II and III and
complying with 3280.508 and 3280.509.
Home Manufacturer
Plant Location
Home Model
This manufactured home has been thermally insulated to conform with
the requirements of the Federal Manufactured Home Construction and
Safety Standards for all locations within climatic Zone ---- .
Heating Equipment Manufacturer
Heating Equipment Model
The above heating equipment has the capacity to maintain an average
70 F temperature in this home at outdoor temperatures of ---- F.
To maximize furnace operating economy and to conserve energy it is
recommended that this home be installed where the outdoor winter design
temperature (97 1/2%) is not higher than ---- degrees Fahrenheit. 1 010
The above information has been calculated assuming a maximum wind
velocity of 15 MPH at standard atmospheric pressure.
0101The temperature to be specified shall be 20 F or 30% of the
design temperature difference, whichever is greater, added to the
temperature specified as the heating system capacity certification
temperature without storm windows or insulating glass for Zone I and
with storm windows or insulating glass for Zones II and III. Design
temperature difference is 70 minus the heating system capacity
certification temperature in degrees Fahrenheit.
24 CFR 3280.511 Comfort cooling certificate and information.
(a) The manufactured home manufacturer shall permanently affix a
''Comfort Cooling Certificate'' to an interior surface of the home that
is readily visible to the home owner. This certificate may be combined
with the heating certificate required in 3280.510. The manufacturer
shall comply with one of the following three alternatives in providing
the certificate and additional information concerning the cooling of the
manufactured home:
(1) Alternative 1. If a central air conditioning system is provided
by the home manufacturer, the heat gain calculation necessary to
properly size the air conditioning equipment shall be in accordance with
procedures outlined in Chapter 22 of the 1981 ASHRAE Handbook of
Fundamentals, with an assumed location and orientation. The following
information shall be supplied in the Comfort Cooling Certificate:
''Air Conditioner Manufacturer
Air Conditioner Model
Certified Capacity ------ BTU/Hr. in accordance with the appropriate
Air Conditioning and Refrigeration Institute Standards.
The central air conditioning system provided with this home has been
sized, assuming an orientation of the front (hitch) end of the home
facing ------ and is designed on the basis of a 75 F indoor temperature
and an outdoor temperature of ------ F dry bulb and F wet bulb.''
Manufactured Home Mfg
Plant Location
Manufactured Home Model
Air Conditioner Manufacturer
Certified Capacity ------ BTU/Hr. in accordance with the appropriate
Air Conditioning and Refrigeration Institute Standards.
The central air conditioning system provided with this home has been
sized assuming an orientation of the front (hitch end) of the home
facing ------ . On this basis the system is designed to maintain an
indoor temperature of 75 F when outdoor temperatures are ------ F dry
tulb and F wet bulb.
The temperature to which this home can be cooled will change
depending upon the amount of exposure of the windows of this home to the
sun's radiant heat. Therefore, the home's heat gains will vary
dependent upon its orientation to the sun and any permanent shading
provided. Information concerning the calculation of cooling loads at
various locations, window exposures and shadings are provided in Chapter
22 of the 1981 edition of the ASHRAE Handbook of Fundamentals.
Information necessary to calculate cooling loads at various locations
and orientations is provided in the special comfort cooling information
provided with this manfactured home.
(2) Alternative 2. For each home suitable for a central air cooling
system, the manufacturer shall provide the following statement: ''This
air distribution system of this home is suitable for the installation of
a central air conditioning system.''
Manufactured Home Manufacturer
Plant Location
Manufactured Home Model
This air distribution system of this home is suitable for the
installation of central air conditioning.
The supply air distribution system installed in this home is sized
for Manufactured Home Central Air Conditioning System of up to ----
B.T.U./Hr. rated capacity which are certified in accordance with the
appropriate Air Conditioning and Refrigeration Institute Standards.
When the air circulators of such air conditioners are rated at 0.3 inch
water column static pressure or greater for the cooling air delivered to
the manufactured home supply air duct system.
Information necessary to calculate cooling loads at various locations
and orientations is provided in the special comfort cooling information
provided with this manufactured home.
(3) Alternative 3. If the manufactured home is not equipped with an
air supply duct system, or if the manufacturer elects not to designate
the home as being suitable for the installation of a central air
conditioning system, the manufacturer shall provide the following
statement: ''This air distribution system of this home has not been
designed in anticipation of its use with a central air conditioning
system.''
Manufactured Home Mfg
Plant Location
Manufactured Home Model
The air distribution system of this home has not been designed in
anticipation of its use with a central air conditioning system.
(b) For each home designated as suitable for central air conditioning
the manufacturer shall provide the maximum central manufactured home air
conditioning capacity certified in accordance with the Standard for
Unitary Air Conditioning Equipment ARI 210-1981 with 84 addendum and in
accordance with 3280.715(a)(3). If the capacity information provided is
based on entrances to the air supply duct at other than the furnace
plenum, the manufacturer shall indicate the correct supply air entrance
and return air exit locations.
(c) Comfort cooling information. For each manufactured home
designated, either ''suitable for'' or ''provided with'' a central air
conditioning system, the manufacturer shall provide comfort cooling
information specific to the manufactured home necessary to complete the
cooling load calculations. The comfort cooling information shall
include a statement to read as follows:
To determine the required capacity of equipment to cool a home
efficiently and economically, a cooling load (heat gain) calculation is
required. The cooling load is dependent on the orientation, location
and the structure of the home. Central air conditioners operate most
efficiently and provide the greatest comfort when their capacity closely
approximates the calculated cooling load. Each home's air conditioner
should be sized in accordance with Chapter 22 of the American Society of
Heating, Refrigerating and Air Conditioning Engineers (ASHRAE) Handbooks
of Fundamentals, once the location and orientation are known.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4584, Feb. 12, 1987; 52 FR 47553, Dec. 15,
1987)
24 CFR 3280.511 Subpart G -- Plumbing Systems
24 CFR 3280.601 Scope.
Subpart G of this standard covers the plumbing materials, fixtures,
and equipment installed within or on manufactured homes. It is the
intent of this subpart to assure water supply, drain, waste and vent
systems which permit satisfactory functioning and provide for health and
safety under all conditions of normal use.
24 CFR 3280.602 Definitions.
(a) The following definitions are applicable to subpart G only:
(1) Accessible, when applied to a fixture, connection, appliance or
equipment, means having access thereto, but which may require removal of
an access panel or opening of a door.
(2) Air gap (water distribution system) means the unobstructed
vertical distance through the free atmosphere between the lowest opening
from any pipe or faucet supplying water to a tank, plumbing fixture,
water supplied appliances, or other device and the flood level rim of
the receptacle.
(3) Anti-siphon trap vent device means a device which automatically
opens to admit air to a fixture drain above the connection of the trap
arm so as to prevent siphonage, and closes tightly when the pressure
within the drainage system is equal to or greater than atmospheric
pressure so as to prevent the escape of gases from the drainage system
into the manufactured home.
(4) Backflow means the flow of water or other liquids, mixtures, or
substances into the distributing pipes of a potable supply of water from
any source or sources other than its intended sources.
(5) Backflow connection means any arrangement whereby backflow can
occur.
(6) Backflow preventer means a device or means to prevent backflow.
(7) Branch means any part of the piping system other than a riser,
main or stack.
(8) Common vent means a vent connecting at the junction of fixture
drains and serving as a vent for more than one fixture.
(9) Continuous vent means a vertical vent that is a continuation of
the drain to which it connects.
(10) Continuous waste means a drain from two or more fixtures
connected to a single trap.
(11) Critical level means a point established by the testing
laboratory (usually stamped on the device by the manufacturer) which
determines the minimum elevation above the flood level rim of the
fixture or receptacle served on which the device may be installed. When
a backflow prevention device does not bear a critical level marking, the
bottom of the vacuum breaker, combination valve, or of any such approved
or listed device shall constitute the critical level.
(12) Cross connection means any physical connection or arrangement
between two otherwise separate systems or sources, one of which contains
potable water and the other either water, steam, gas or chemical of
unknown or questionable safety whereby there may be a flow from one
system or source to the other, the direction of flow depending on the
pressure differential between the two systems.
(13) Developed length means that length of pipe measured along the
center line of the pipe and fittings.
(14) Diameter, unless otherwise specifically stated, means the
nominal (inside) diameter designated commercially.
(15) Drain means a pipe that carries waste, water, or water-borne
waste in a drainage system.
(16) Drain connector means the removable extension, consisting of all
pipes, fittings and appurtenances, from the drain outlet to the drain
inlet serving the manufactured home.
(17) Drain outlet means the lowest end of the main or secondary drain
to which a sewer connection is made.
(18) Drainage system means all piping within or attached to the
structure that conveys sewage or other liquid waste to the drain outlet,
not including the drain connector.
(19) Fixture drain means the drain from the trap of a fixture to the
junction of that drain with any other drain pipe.
(20) Fixture supply means the water supply pipe connecting a fixture
to a branch water supply pipe or directly to a main water supply pipe.
(21) Flood-level means the level in the receptacle over which water
would overflow to the outside of the receptacle.
(22) Flooded means the condition which results when the liquid in a
container or receptacle rises to the flood-level.
(23) Flush tank means that portion of a water closet that is designed
to contain sufficient water to adequately flush the fixture.
(24) Flush valve means a device located at the bottom of a flush tank
for flushing a water closet.
(25) Flushometer valve means a device which discharges a
predetermined quantity of water to a fixture for flushing purposes and
is closed by direct water pressure.
(26) Grade means the fall (slope) of a pipe in reference to a
horizontal plane expressed in inches per foot length.
(27) Horizontal branch means any pipe extending laterally, which
receives the discharge from one or more fixture drains and connects to
the main drain.
(28) Horizontal pipe means any pipe or fitting which makes an angle
of not more than 45 degrees with the horizontal.
(29) Individual vent means a pipe installed to vent a fixture drain.
(30) Inlet coupling means the terminal end of the water system to
which the water service connection is attached. It may be a swivel
fitting or threaded pipe end.
(31) Main means the principal artery of the system to which branches
may be connected.
(32) Main drain means the lowest pipe of a drainage system which
receives sewage from all the fixtures within a manufactured home and
conducts these wastes to the drain outlet.
(33) Main vent means the principal artery of the venting system to
which vent branches may be connected.
(34) Offset means a combination of pipe and/or fittings that brings
one section of the pipe out of line but into a line parallel with the
other section.
(35) Pitch. See Grade.
(36) Plumbing fixtures means receptacles, devices, or appliances
which are supplied with water or which receive liquid or liquid-borne
wastes for discharge into the drainage system.
(37) Plumbing system means the water supply and distribution pipes;
plumbing fixtures, faucets and traps; soil, waste and vent pipes; and
water-treating or water-using equipment.
(38) Primary vent. See Main Vent.
(39) Relief vent means an auxiliary vent which permits additional
circulation of air in or between drainage and vent systems.
(40) Secondary vent means any vent other than the main vent or those
serving each toilet.
(41) Sewage means any liquid waste containing animal or vegetable
matter in suspension or solution, and may include liquids containing
chemicals in solution.
(42) Siphonage means the loss of water seal from fixture traps
resulting from partial vacuum in the drainage system which may be of
either of the following two types, or a combination of the two: (a)
Self-siphonage resulting from vacuum in a fixture drain generated solely
by the discharge of the fixture served by that drain, or, (b) Induced
siphonage resulting from vacuum in the drainage system generated by the
discharge of one or more fixtures other than the one under observation.
(43) Trap means a fitting or device designed and constructed to
provide a liquid seal that will prevent the back passage of air without
materially affecting the flow of liquid waste through it.
(44) Trap Arm means the portion of a fixture drain between a trap and
its vent.
(45) Trap seal means the verticle depth of liquid that a trap will
retain.
(46) Vacuum breaker. See Backflow Preventer.
(47) Vent cap means the device or fitting which protects the vent
pipe from foreign substance with an opening to the atmosphere equal to
the area of the vent it serves.
(48) Vent system means that part of a piping installation which
provides circulation of air within a drainage system.
(49) Vertical pipe means any pipe or fitting which makes an angle of
not more than 45 degrees with the vertical.
(50) Water closet drain means that part of the drainage piping which
receives the discharge from each individual water closet.
(51) Water connection means the fitting or point of connection for
the manufactured home water distribution system designed for connection
to a water supply.
(52) Water connector means the removable extension connecting the
manufactured home water distribution system to the water supply.
(53) Water distribution system means potable water piping within or
permanently attached to the manufactured home.
(54) Wet vent means a vent which also serves as a drain for one or
more fixtures.
(55) Wet vented drainage system means the specially designed system
of drain piping that also vents one or more plumbing fixtures by means
of a common waste and vent pipe.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4584, Feb. 12, 1987; 52 FR 47553, Dec. 15,
1987)
24 CFR 3280.603 General requirements.
(a) Minimum requirements. Any plumbing system installed in a
manufactured home shall conform, at least, with the provisions of this
subpart.
(1) General. The plumbing system shall be of durable material, free
from defective workmanship, and so designed and constructed as to give
satisfactory service for a reasonable life expectancy.
(2) Conservation. Water closets shall be selected and adjusted to
use the minimum quantity of water consistent with proper performance and
cleaning.
(3) Connection to drainage system. All plumbing, fixtures, drains,
appurtenances, and appliances designed or used to receive or discharge
liquid waste or sewage shall be connected to the manufactured home
drainage system in a manner provided by this standard.
(4) Workmanship. All design, construction, and workmanship shall be
in conformance with accepted engineering practices and shall be of such
character as to secure the results sought to be obtained by this
standard.
(5) Components. Plumbing materials, devices, fixtures, fittings,
equipment, appliances, and accessories intended for use in or attached
to a manufactured home, and not shown in the Table in 3280.604, shall
be listed or certified by an approved listing agency, or be specifically
approved by the Department when listing by an approved listing agency is
not available.
(6) Prohibited fittings and practices. (i) Drainage or vent piping
shall not be drilled and tapped for the purpose of making connections.
(ii) Except as specifically provided elsewhere in this standard, vent
pipes shall not be used as waste or drain pipes.
(iii) Fittings, connections, devices, or methods of installation that
obstruct or retard the flow of sewage, or air in the drainage or venting
systems in an amount greater than the normal frictional resistance to
flow shall not be used unless their use is acceptable in this standard
or their use is accepted as having a desirable and acceptable function
of ultimate benefit to the proper and continued functioning of the
plumbing system.
(iv) Cracks, holes, or other imperfections in materials shall not be
concealed by welding, brazing, or soldering or by paint, wax, tar, or
other leak-sealing or repairing agents.
(v) Piping, fixtures or equipment shall be located so as not to
interfere with the normal use or with the normal operation and use of
windows, doors or other required facilities.
(vi) Galvanized pipe shall not be bent or welded.
(7) Alignment of fittings. All valves, pipes, and fittings shall be
installed in correct relationship to the direction of flow.
(b) Protective requirements. (1) Cutting structural members.
Structural members shall not be unnecessarily or carelessly weakened by
cutting or notching.
(2) Exposed piping. All piping, pipe threads, hangers, and support
exposed to the weather, water, mud, and road hazard, and subject to
damage therefrom, shall be painted, coated, wrapped, or otherwise
protected from deterioration.
(3) Road damage. Pipes, supports, drains, outlets, or drain hoses
shall not extend or protrude in a manner where they could be unduly
subjected to damage during transit.
(4) Freezing. All piping and fixtures subject to freezing
temperatures shall be insulated or protected to prevent freezing, under
normal occupancy. The manufacturer shall provide: (i) Written
installation instructions for the method(s) required for compliance to
this section; (ii) a statement in his installation instructions that if
heat tape is used it shall be listed for use with manufactured homes;
(iii) a receptacle outlet for the use of a heat tape located on the
underside of the manufactured home within 2 feet of the water supply
inlet. The receptacle outlet provided shall not be placed on a branch
circuit which is protected by a ground fault circuit interrupter.
(5) All piping, except the fixture trap, shall be designed to allow
drainage.
(6) Rodent resistance. All exterior openings around piping and
equipment shall be sealed to resist the entrance of rodents.
(7) Piping and electrical wiring shall not pass through the same
holes in walls, floors or roofs. Plastic piping shall not be exposed to
heat in excess of manufacturers recommendation or radiation from heat
producing appliances.
(Secs. 604 and 625 of the National Manufactured Housing Construction
and Safety Standards Act, (42 U.S.C. 5403 and 5424 and sec. 7(d),
Department of HUD Act, 42 U.S.C. 3535(d)))
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 54383, Oct. 5, 1977.
Redesignated at 44 FR 20679, Apr. 6, 1979)
24 CFR 3280.604 Materials.
(a) Minimum standards. Materials, fixtures, or devices used or
entering into the construction of plumbing systems in any manufactured
home shall be free from defects and shall conform to approved standards
or to applicable standards in the following table.
(b) Specific usage. Each of the sections following the table
indicates specifically the type of material presently permitted for use
in the various parts of the plumbing system.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4584, Feb. 12, 1987)
24 CFR 3280.605 Joints and connections.
(a) Tightness. Joints and connections in the plumbing system shall
be gastight and watertight for the pressures required under testing
procedures.
(1) Assembling of pipe. All joints and connections shall be
correctly assembled for tightness. Pipe threads shall be fully engaged
with the threads of the fitting. Plastic pipe and copper tubing shall
be inserted to the full depth of the solder cup or welding sockets of
each fitting. Pipe threads and slip joints shall not be wrapped with
string, paper, putty, or similar fillers.
(2) Threaded joints. Threads for screw pipe and fittings shall
conform to the approved or listed standard. Pipe ends shall be reamed
out to size of bore. All burrs, chips, cutting oil and foreign matter
shall be removed. Pipe joint cement or thread lubricant shall be of
approved type and applied to male threads only.
(3) Solder joints. Solder joints for tubing shall be made with
approved or listed solder type fittings. Surfaces to be soldered shall
be cleaned bright. The joints shall be properly fluxed with
noncorrosive paste type flux and, for manufactured homes to be connected
to a public water system, made with solder having not more than 0.2
percent lead.
(4) Plastic pipe, fittings and joints. Plastic pipe and fittings
shall be joined by installation methods recommended by the manufacturer
or in accordance with the provisions of a recognized, approved, or
listed standard.
(5) Union joints. Metal unions in water piping shall have
metal-to-metal ground seats.
(6) Flared joints. Flared joints for soft-copper water tubing shall
be made with approved or listed fittings. The tubing shall be expanded
with a proper flaring tool.
(7) Cast iron soil pipe joints. Approved or listed cast iron pipe
may be joined as follows:
(i) Approved or listed hubless pipe as per the manufacturer's
recommendation.
(ii) Hub and plain-end soil pipe may be joined by compression
fittings per the manufacturer's recommendation.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979, and amended at 53 FR 23611, June 23, 1988)
24 CFR 3280.606 Traps and cleanouts.
(a) Traps -- (1) Traps required. Each plumbing fixture, except
listed toilets, shall be separately trapped by approved water seal ''P''
traps. All traps shall be effectively vented.
(2) Dual fixtures. A two-compartment sink, two single sinks, two
lavatories, or a single sink and a single lavatory with waste outlets
not more than 30 inches apart and in the same room and flood level rims
at the same level may be connected to one ''P'' trap and may be
considered as a single fixture for the purpose of drainage and vent
requirements.
(3) Prohibited traps. A trap which depends for its seal upon
concealed interior partitions shall not be used. Full ''S'' traps, bell
traps, drum traps, crown-vented traps, and running traps are prohibited.
Fixtures shall not be double-trapped.
(4) Material and design. Each trap shall be self-cleaning with a
smooth and uniform interior waterway. Traps shall be manufactured of
cast iron, cast brass, or drawn brass tubing of not less than No. 20
Brown and Sharpe gage, or approved or listed plastic, or other approved
or listed material. Union joints for a trap shall be beaded to provide
a shoulder for the union nut. Each trap shall have the manufacturer's
name stamped or cast in the body of the trap, and each tubing trap shall
show the gage of the tubing.
(5) Trap seal. Each ''P'' trap shall have a water seal of not less
than 2 inches and not more than 4 inches and shall be set true to its
seal.
(6) Size. Traps shall be not less than 1 1/4 inches in diameter. A
trap shall not be larger than the waste pipe to which it is connected.
(7) Location. Each trap shall be located as close to its vent and to
its fixture outlet as structural conditions will permit.
(8) Length of tailpiece. The vertical distance from a trap to the
fixture outlet shall not exceed 24 inches.
(9) Installation. (i) Grade of trap arm. The piping between a ''P''
trap and the fixture tee or the vented waste line shall be graded 1/4
inch per foot towards the vent and in no event shall have a slope
greater than its diameter. The vent opening at fixture tees shall not
be below the weir of the ''P'' trap outlet.
(ii) Trap arm offset. The piping between the ''P'' trap and vent may
change direction or be offset horizontally with the equivalent of no
more than 180 degrees total change in direction with a maximum of 90
degrees by any one fitting.
(iii) Concealed traps. Traps with mechanical joints shall be
accessible for repair and inspection.
(iv) Removability of Traps, Etc. Traps shall be designed and
installed so the ''U'' bend is removable without removing the strainers
from the fixture. Continuous waste and tail pieces which are
permanently attached to the ''U'' bend shall also be removable without
removing the strainer from the fixture.
(b) Cleanout openings -- (1) Location of cleanout fittings. (i)
Cleanouts shall be installed if the drainage system cannot be cleaned
through fixtures, drains, or vents. Cleanouts shall also be provided
when fittings of more than 45 degrees are used to affect an offset
except where long turn ells are used which provide sufficient ''sweep''
for cleaning.
(ii) A full size cleanout shall be installed at the upper end of any
section of drain piping which does not have the required minimum slope
of 1/4 inch per foot grade.
(iii) A cleaning tool shall not be required to pass through more than
360 degrees of fittings, excluding removable ''P'' traps, to reach any
part of the drainage system.
(2) Access to cleanouts. Cleanouts shall be accessible through an
unobstructed minimum clearance of 12 inches directly in front of the
opening. Each cleanout fitting shall open in a direction opposite to
the flow or at right angles to the pipe. Concealed cleanouts that are
not provided with access covers shall be extended to a point above the
floor or outside of the manufactured home, with pipe and fittings
installed, as required, for drainage piping without sags and pockets.
(3) Material. Plugs and caps shall be brass or approved or listed
plastic, with screw pipe threads.
(4) Design. Cleanout plugs shall have raised heads except that plugs
at floor level shall have counter-sunk slots.
24 CFR 3280.607 Plumbing fixtures.
(a) General requirements -- (1) Quality of fixtures. Plumbing
fixtures shall have smooth impervious surfaces, be free from defects and
concealed fouling surfaces, be capable of resisting road shock and
vibration, and shall conform in quality and design to listed standards.
Fixtures shall be permanently marked with the manufacturer's name or
trademark.
(2) Strainers. The waste outlet of all plumbing fixtures, other than
toilets, shall be equipped with a drain fitting that will provide an
adequate unobstructed waterway.
(3) Fixture connections. Fixture tailpieces and continuous wastes in
exposed or accessible locations shall be not less than No. 20 Brown and
Sharpe gage seamless drawn-brass tubing or other approved pipe or tubing
materials. Inaccessible fixture connections shall be constructed
according to the requirements for drainage piping. Each fixture
tailpiece, continuous waste, or waste and overflow shall be not less
than 1 1/2 inches for sinks of two or more compartments, dishwashers,
clothes washing machines, laundry tubs, bath tubs, and not less than 1
1/4 inches for lavatories and single compartment sinks having a 2 inch
maximum drain opening.
(4) Concealed connections. Concealed slip joint connections shall be
provided with adequately sized unobstructed access panels and shall be
accessible for inspection and repair.
(5) Directional fitting. An approved or listed ''Y'' or other
directional-type branch fitting shall be installed in every tailpiece or
continuous waste that receives the discharge from food waste disposal
units, dishwashing, or other force-discharge fixture or appliance. (See
also 3280.607(b)(4)(ii).)
(b) Fixtures. (1) Spacing. All plumbing fixtures shall be so
installed with regard to spacing as to be reasonably accessible for
their intended use.
(2) Toilets. (i) Toilets shall be designed and manufactured
according to approved or listed standards and shall be equipped with a
water flushing device capable of adequately flushing and cleaning the
bowl at each operation of the flushing mechanism.
(ii) Toilet flushing devices shall be designed to replace the water
seal in the bowl after each operation. Flush valves, flushometer
valves, and ball cocks shall operate automatically to shut off at the
end of each flush or when the tank is filled to operating capacity.
(iii) Flush tanks shall be fitted with an overflow pipe large enough
to prevent flooding at the maximum flow rate of the ball cock. Overflow
pipes shall discharge into the toilet, through the tank.
(iv) Toilets that have fouling surfaces that are not thoroughly
washed at each discharge shall be prohibited. Any toilet that might
permit the contents of the bowl to be siphoned back into the water
system shall be prohibited.
(v) Floor connection. Toilets shall be securely bolted to an
approved flange or other approved fitting which is secured to the floor
by means of corrosion-resistant screws. The bolts shall be of solid
brass or other corrosion-resistant material and shall be not less than
1/4 inch in diameter. A watertight seal shall be made between the
toilet and flange or other approved fitting by use of a gasket or
sealing compound.
(3) Shower compartment. (i) Each compartment stall shall be provided
with an approved watertight receptor with sides and back extending at
least 1 inch above the finished dam or threshold. In no case shall the
depth of a shower receptor be less than 2 inches or more than 9 inches
measured from the top of the finished dam or threshold to the top of the
drain. The wall area shall be constructed of smooth, noncorrosive, and
nonabsorbent waterproof materials to a height not less than 6 feet above
the bathroom floor level. Such walls shall form a watertight joint with
each other and with the bathtub, receptor or shower floor. The floor of
the compartment shall slope uniformly to the drain at not less than
one-fourth nor more than one-half inch per foot.
(ii) The joint around the drain connection shall be made watertight
by a flange, clamping ring, or other approved listed means.
(iii) Shower doors and tub and shower enclosures shall be constructed
so as to be waterproof and, if glazed, glazing shall comply with the
standard for Safety Performance Specifications and Methods of Test for
Safety Glazing Materials Used in Buildings, ANSI Z97.1-1984.
(iv) Prefabricated plumbing fixtures shall be approved or listed.
(4) Dishwashing machines. (i) Dishwashing machine shall not be
directly connected to any waste piping, but shall discharge its waste
through a fixed air gap installed above the machine. The drain
connection from the air gap may connect to an individual trap, to a
directional fitting installed in the sink tailpiece, or to the opening
provided on the inlet side of a food waste disposal unit.
(ii) Drain from a dishwashing machine shall not be connected to a
sink tailpiece, continuous waste line, or trap on the discharge side of
a food waste disposal unit.
(5) Clothes washing machines. (i) Clothes washing machines shall
drain either into a properly vented trap, into a laundry tub tailpiece
with watertight connections, into an open standpipe receptor, or over
the rim of a laundry tub.
(ii) Standpipes shall be 1 1/2 inches minimum nominal iron pipe size,
1 1/2 inches diameter nominal brass tubing not less than No. 20 Brown
and Sharpe gage, or 1 1/2 inches approved plastic materials. Receptors
shall discharge into a vented trap or shall be connected to a laundry
tub tailpiece by means of an approved or listed directional fitting.
Each standpipe shall extend not less than 18 inches or more than 30
inches above its trap and shall terminate in an accessible location no
lower than the top of clothes washing machine. A removable tightfitting
cap or plug shall be installed on the standpipe when clothes washer is
not provided.
(iii) Clothes washing machine drain shall not be connected to the
tailpiece, continuous waste, or trap of any sink or dishwashing machine.
(c) Installation -- (1) Access. Each plumbing fixture and standpipe
receptor shall be located and installed in a manner to be accessible for
usage, cleaning, repair and replacement.
(2) Alignment. Fixtures shall be set level and in true alignment
with adjacent walls. Where practical, piping from fixtures shall extend
to nearest wall.
(3) Brackets. Wall-hung fixtures shall be rigidly attached to walls
by metal brackets or supports without any strain being transmitted to
the piping connections. Flush tanks shall be securely fastened to
toilets or to the wall with corrosive-resistant materials.
(4) Tub supports. Bathtub rims at wall shall be supported on metal
hangers or on end-grain wood blocking attached to the wall unless
otherwise recommended by the manufacturer of the tub.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 961, Jan. 4, 1977.
Redesignated at 44 FR 20679, Apr. 6, 1979 and amended at 52 FR 4586,
Feb. 12, 1987)
24 CFR 3280.608 Hangers and supports.
(a) Strains and stresses. Piping in a plumbing system shall be
installed without undue strains and stresses, and provision shall be
made for expansion, contraction, and structural settlement.
(b) Piping supports. Piping shall be secured at sufficiently close
intervals to keep the pipe in alignment and carry the weight of the pipe
and contents. Unless otherwise stated in the standards for specific
materials shown in the table in 3280.604(a), or unless specified by the
pipe manufacturer, plastic drainage piping shall be supported at
intervals not to exceed 4 feet and plastic water piping shall be
supported at intervals not to exceed 3 feet.
(c) Hangers and anchors. (1) Hangers and anchors shall be of
sufficient strength to support their proportional share of the pipe
alignments and prevent rattling.
(2) Piping shall be securely attached to the structure by hangers,
clamps, or brackets which provide protection against motion, vibration,
road shock, or torque in the chassis.
(3) Hangers and straps supporting plastic pipe shall not compress,
distort, cut or abrade the piping and shall allow free movement of the
pipe.
24 CFR 3280.609 Water distribution systems.
(a) Water supply -- (1) Supply piping. Piping systems shall be sized
to provide an adequate quantity of water to each plumbing fixture at a
flow rate sufficient to keep the fixture in a clean and sanitary
condition without any danger of backflow or siphonage. (See table in
3280.609(f)(1)). The manufacturer shall include in his written
installation instructions that the manufactured home has been designed
for an inlet water pressure of 80 psi, and a statement that when the
manufactured home is to be installed in areas where the water pressure
exceeds 80 psi, a pressure reducing valve should be installed.
(2) Hot water supply. Each manufactured home equipped with a kitchen
sink, and bathtub and/or shower shall be provided with a hot water
supply system including a listed water heater.
(b) Water outlets and supply connections. (1) Water connection.
Each manufactured home with a water distribution system shall be
equipped with a 3/4 inch threaded inlet connection. This connection
shall be tagged or marked ''Fresh Water Connection'' (or marked ''Fresh
Water Fill''). A matching cap or plug shall be provided to seal the
water inlet when it is not in use, and shall be permanently attached to
the manufactured home or water supply piping. When a master cold water
shutoff full flow valve is not installed on the main feeder line in an
accessible location, the manufacturer's installation instructions shall
indicate that such a valve is to be installed in the water supply line
adjacent to the home. When a manufactured home includes expandable
rooms or is composed of two or more units, fittings or connectors
designed for such purpose shall be provided to connect any water piping.
When not connected, the water piping shall be protected by means of
matching threaded caps or plugs.
(2) Prohibited connections. (i) The installation of potable water
supply piping or fixture or appliance connections shall be made in a
manner to preclude the possibility of backflow.
(ii) No part of the water system shall be connected to any drainage
or vent piping.
(3) Rim outlets. The outlets of faucets, spouts, and similar devices
shall be spaced at least 1 inch above the flood level of the fixture.
(4) Appliance connections. Water supplies connected to clothes
washing or dishwashing machines shall be protected by an approved or
listed fixed air gap provided within the appliance by the manufacturer.
(5) Flushometer valves or manually operated flush valves. An
approved or listed vacuum breaker shall be installed and maintained in
the water supply line on the discharge side of a toilet flushometer
valve or manually operated flush valve. Vacuum breakers shall have a
minimum clearance of 6 inches above the flood level of the fixture to
the critical level mark unless otherwise permitted in their approval.
(6) Flush tanks. Toilet flush tanks shall be equipped with an
approved or listed anti-siphon ball cock which shall be installed and
maintained with its outlet or critical level mark not less than 1 inch
above the full opening of the overflow pipe.
(c) Water heater safety devices -- (1) Relief valves. (i) All water
heaters shall be installed with approved and listed fully automatic
valve or valves designed to provide temperature and pressure relief.
(ii) Any temperature relief valve or combined pressure and
temperature relief valve installed for this purpose shall have the
temperature sensing element immersed in the hottest water within the
upper 6 inches of the tank. It shall be set to start relieving at a
pressure of 150 psi or the rated working pressure of the tank whichever
is lower and at or below a water temperature of 210 F.
(iii) Relief valves shall be provided with full-sized drains, with
cross sectional areas equivalent to that of the relief valve outlet,
which shall be directed downward and discharge beneath the manufactured
home. Drain lines shall be of a material listed for hot water
distribution and shall drain fully by gravity, shall not be trapped, and
shall not have their outlets threaded, and the end of the drain shall be
visible for inspection.
(d) Materials -- (1) Piping material. Water pipe shall be of
standard weight brass, galvanized wrought iron, galvanized steel, Type
K, L or M copper tubing, approved or listed plastic or other approved or
listed material.
(i) Plastic piping. All plastic water piping and fittings in
manufactured homes must be approved or listed for use with hot water.
(2) Fittings. Appropriate fittings shall be used for all changes in
size and where pipes are joined. The material and design of fittings
shall conform to the type of piping used. Special consideration shall
be given to prevent corrosion when dissimilar metals are joined.
(i) Fittings for screw piping shall be standard weight galvanized
iron for galvanized iron and steel pipe, and of brass for brass piping.
They shall be installed where required for change in direction,
reduction of size, or where pipes are joined together.
(ii) Fittings for copper tubing shall be cast brass or drawn copper
(sweat-soldered) or shall be approved or listed fittings for the purpose
intended.
(3) Prohibited material. Used piping materials shall not be
permitted. Those pipe dopes, solder, fluxes, oils, solvents, chemicals,
or other substances that are toxic, corrosive, or otherwise detrimental
to the water system shall not be used. In addition, for those
manufactured homes to be connected to a public water system, all water
piping shall be lead-free (as defined in Section 109(c)(2) of the Safe
Drinking Water Act Amendments of 1986) with solders and flux containing
not more than 0.2 percent lead and pipes and pipe fittings containing
not more than 8.0 percent lead.
(e) Installation of piping -- (1) Minimum requirement. All piping
equipment, appurtenances, and devices shall be installed in workmanlike
manner and shall conform with the provisions and intent of this
standard.
(2) Screw pipe. Iron pipe-size brass or galvanized iron or steel
pipe fittings shall be joined with approved or listed standard pipe
threads fully engaged in the fittings. Pipe ends shall be reamed to the
full bore of the pipe. Pipe-joint compound shall be insoluble in water,
shall be nontoxic and shall be applied to male threads only.
(3) Solder fittings. Joints in copper water tube shall be made by
the appropriate use of approved cast brass or wrought copper fittings,
properly soldered together. The surface to be soldered shall be
thoroughly cleaned bright mechanically. The joints shall be properly
fluxed and made with approved solder.
(4) Flared fittings. A flaring tool shall be used to shape the ends
of flared tubing to match the flare of fittings.
(5) Plastic pipe and fittings. Plastic pipe and fittings shall be
joined by installation methods recommended by the manufacturer or in
accordance with provisions of a listed standard.
(f) Size of water supply piping -- (1) Minimum size. The size of
water supply piping and branch lines shall not be less than sizes shown
in the following table:
Exceptions to table: 3/8 inch nominal diameter or 1/2 inch OD
minimum size for clothes washing or dishwashing machines, unless larger
size is recommended by the fixture manufacturer. 1/2 inch nominal
diameter or 5/8 inch OD minimum size for flushometer or metering type
valves unless otherwise specified in their listing. No galvanized screw
piping shall be less than 1/2 inch iron pipe size.
(2) Sizing procedure. Both hot and cold water piping systems shall
be computed by the following method:
(i) Size of branch. Start at the most remote outlet on any branch of
the hot or cold water piping and progressively count towards the water
service connection, computing the total number of fixtures supplied
along each section of piping. Where branches are joined together, the
number of fixtures on each branch shall be totalled so that no fixture
is counted twice. Following down the left-hand column of the preceding
table a corresponding number of fixtures will be found. The required
pipe or tubing size is indicated in the other columns on the same line.
(ii) A water heater, food waste disposal unit, evaporative cooler or
ice maker shall not be counted as a water-using fixture when computing
pipe sizes.
(g) Line valves. Valves, when installed in the water supply
distribution system (except those immediately controlling one fixture
supply) and when fully opened, shall have a cross-sectional area of the
smallest orifice or opening, through which the water flows, at least
equal to the cross-sectional area of the nominal size of the pipe in
which the valve is installed.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979, and amended at 52 FR 4586, Feb. 12, 1987; 53 FR 23611, June 23,
1988)
24 CFR 3280.610 Drainage systems.
(a) General. (1) Each fixture directly connected to the drainage
system shall be installed with a water seal trap ( 3280.606(a)).
(2) The drainage system shall be designed to provide an adequate
circulation of air in all piping with no danger of siphonage,
aspiration, or forcing of trap seals under conditions of ordinary use.
(b) Materials -- (1) Pipe. Drainage piping shall be standard weight
steel, wrought iron, brass, copper tube DWV, listed plastic, cast iron,
or other listed or approved materials.
(2) Fittings. Drainage fittings shall be recessed drainage pattern
with smooth interior waterways of the same diameter as the piping and
shall be of a material conforming to the type of piping used. Drainage
fittings shall be designed to provide for a 1/4 inch per foot grade in
horizontal piping.
(i) Fittings for screw pipe shall be cast iron, malleable iron,
brass, or listed plastic with standard pipe threads.
(ii) Fittings for copper tubing shall be cast brass or wrought
copper.
(iii) Socket-type fittings for plastic piping shall comply with
listed standards.
(iv) Brass or bronze adaptor or wrought copper fittings shall be used
to join copper tubing to threaded pipe.
(c) Drain outlets. (1) Each manufactured home shall have only one
drain outlet.
(2) Clearance from drain outlet. The drain outlet shall be provided
with a minimum clearance of 3 inches in any direction from all parts of
the structure or appurtenances and with not less than 18 inches
unrestricted clearance directly in front of the drain outlet.
(3) Drain connector. The drain connector shall not be smaller than
the piping to which it is connected and shall be equipped with a
water-tight cap or plug matching the drain outlet. The cap or plug
shall be permanently attached to the manufactured home or drain outlet.
(4) The drain outlet and drain connector shall not be less than 3
inches inside diameter.
(5) Preassembly of drain lines. Drain lines, provided by the
manufacturer, located under the manufactured home, designed to bring the
drain system to one distribution point and which may be damaged in
transit, must be designed for proper site assembly.
(d) Fixture connections. Drainage piping shall be provided with
approved or listed inlet fittings for fixture connections, correctly
located according to the size and type of fixture to be connected.
(1) Toilet connection. The drain connection for each toilet shall be
3 inches minimum inside diameter and shall be fitted with an iron,
brass, or listed plastic floor flange adaptor ring securely screwed,
soldered or otherwise permanently attached to the drain piping, in an
approved manner and securely fastened to the floor.
(e) Size of drainage piping -- (1) Fixture load. Except as provided
by 3280.611(d), drain pipe sizes shall be determined by the type of
fixture and the total number connected to each drain.
(i) A 1 1/2 inch minimum diameter piping shall be required for one
and not more than three individually vented fixtures.
(ii) A 2-inch minimum diameter piping shall be required for four or
more fixtures individually vented.
(iii) A 3-inch minimum diameter piping shall be required for toilets.
(f) Wet-vented drainage system. Plumbing fixture traps may connect
into a wet-vented drainage system which shall be designed and installed
to accommodate the passage of air and waste in the same pipe.
(1) Horizontal piping. All parts of a wet-vented drainage system,
including the connected fixture drains, shall be horizontal except for
wet-vented vertical risers which shall terminate with a 1 1/2 inch
minimum diameter continuous vent. Where required by structural design,
wet-vented drain piping may be offset vertically when other vented
fixture drains or relief vents are connected to the drain piping at or
below the vertical offsets.
(2) Size. A wet-vented drain pipe shall be 2 inches minimum diameter
and at least one pipe size larger than the largest connected trap or
fixture drain. Not more than three fixtures may connect to a 2-inch
diameter wet-vented drain system.
(3) Length of trap arm. Fixture traps shall be located within the
distance given in 3280.611(c)(5). Not more than one trap shall connect
to a trap arm.
(g) Offsets and branch fittings -- (1) Changes in direction. Changes
in direction of drainage piping shall be made by the appropriate use of
approved or listed fittings, and shall be of the following angles: 11
1/4, 22 1/2, 45, 60, or 90 degrees; or other approved or listed
fittings or combinations of fittings with equivalent radius or sweep.
(2) Horizontal to vertical. Horizontal drainage lines, connecting
with a vertical pipe shall enter through 45-degree ''Y'' branches,
60-degree ''Y'' branches, long-turn ''TY'' branches, sanitary ''T''
branches, or other approved or listed fittings or combination of
fittings having equivalent sweep. Fittings having more than one branch
at the same level shall not be used, unless the fitting is constructed
so that the discharge from any one branch cannot readily enter any other
branch. However, a double sanitary ''T'' may be used when the drain
line is increased not less than two pipe sizes.
(3) Horizontal to horizontal and vertical to horizontal. Horizontal
drainage lines connecting with other horizontal drainage lines or
vertical drainage lines connected with horizontal drainage lines shall
enter through 45-degree ''Y'' branches, long-turn ''TY'' branches, or
other approved or listed fittings or combination of fittings having
equivalent sweep.
(h) Grade of horizontal drainage piping. Except for fixture
connections on the inlet side of the trap, horizontal drainage piping
shall be run in practical alignment and have a uniform grade of not less
than 1/4 inch per foot toward the manufactured home drain outlet. Where
it is impractical, due to the structural features or arrangement of any
manufactured home, to obtain a grade of 1/4 inch per foot, the pipe or
piping may have a grade of not less than 1/8 inch per foot, when a full
size cleanout is installed at the upper end.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4586, Feb. 12, 1987)
24 CFR 3280.611 Vents and venting.
(a) General. Each plumbing fixture trap shall be protected against
siphonage and back pressure, and air circulation shall be ensured
throughout all parts of the drainage system by means of vents installed
in accordance with the requirements of this section and as otherwise
required by this standard.
(b) Materials -- (1) Pipe. Vent piping shall be standard weight
steel, wrought iron, brass, copper tube DWV, listed plastic, cast iron
or other approved or listed materials.
(2) Fittings. Appropriate fittings shall be used for all changes in
direction or size and where pipes are joined. The material and design
of vent fittings shall conform to the type of piping used.
(i) Fittings for screw pipe shall be cast iron, malleable iron,
plastic, or brass, with standard pipe threads.
(ii) Fittings for copper tubing shall be cast brass or wrought
copper.
(iii) Fittings for plastic piping shall be made to approved
applicable standards.
(iv) Brass adaptor fittings or wrought copper shall be used to join
copper tubing to threaded pipe.
(v) Listed rectangular tubing may be used for vent piping only
providing it has an open cross section at least equal to the circular
vent pipe required. Listed transition fittings shall be used.
(c) Size of vent piping -- (1) Main vent. The drain piping for each
toilet shall be vented by a 1 1/2 inch minimum diameter vent or
rectangular vent of venting cross section equivalent to or greater than
the venting cross section of a 1 1/2 inch diameter vent, connected to
the toilet drain by one of the following methods: (i) A 1 1/2 inch
diameter (min.) individual vent pipe or equivalent directly connected to
the toilet drain within the distance allowed in 3280.611(c)(5), for
3-inch trap arms undiminished in size through the roof, (ii) A 1 1/2
inch diameter (min.) continuous vent or equivalent, indirectly connected
to the toilet drain piping within the distance allowed in
3280.611(c)(5) for 3 inch trap arms through a 2-inch wet vented drain
that carries the waste of not more than one fixture, or, (iii) Two or
more vented drains when at least one is wet-vented, or 2-inch diameter
(minimum), and each drain is separately connected to the toilet drain.
At least one of the drains shall connect within the distance allowed in
3280.611(c)(5) for 3-inch trap arms.
(2) Vent pipe areas. Each individually vented fixture with a 1 1/2
inch or smaller trap shall be provided with a vent pipe equivalent in
area to a 1 1/4 inch nominal pipe size. The main vent, toilet vent and
relief vent, and the continuous vent of wet-vented systems shall have an
area equivalent to 1 1/2 inch nominal pipe size.
(3) Common vent. When two fixture traps located within the distance
allowed from their vent have their trap arms connected separately at the
same level into an approved double fitting, an individual vent pipe may
serve as a common vent without any increase in size.
(4) Intersecting vents. Where two or more vent pipes are joined
together, no increase in size shall be required; however, the largest
vent pipe shall extend full size through the roof.
(5) Distance of fixture trap from vent shall not exceed the values
given in the following table:
(d) Anti-siphon trap vent. An anti-siphon trap vent may be used as a
secondary vent system for plumbing fixtures protected by traps not
larger than 1 1/2 inches, when installed in accordance with the
manufacturers' recommendations and the following conditions:
(1) Not more than two fixtures individually protected by the device
shall be drained by a common 1 1/2 inch drain.
(2) Minimum drain size for three or more fixtures individually
protected by the device shall be 2 inches.
(3) A primary vent stack must be installed to vent the toilet drain
at the point of heaviest drainage fixture unit loading.
(4) The device shall be installed in a location that permits a free
flow of air and shall be accessible for inspection, maintenance, and
replacement and the sealing function shall be at least 6 inches above
the top of the trap arm.
(5) Materials for the anti-siphon trap vent shall be as follows: Cap
and housing shall be listed acrylonitrile-butadiene-styrene, DWV grade;
stem shall be DWV grade nylon or acetal; spring shall be stainless
steel wire, type 302; sealing disc shall be neoprene, conforming to the
Specification for Neoprene Rubber Gaskets for HUB and Spigot Cast Iron
Soil Pipe and Fittings, CISPI-HSN-85 and ASTM C 564-70 (82), Standard
Specification for Rubber Gaskets for Cast Iron Soil Pipe and Fittings
or, silicone rubber, low and high temperature and tear resistant,
conforming to Rubber, Silicone, FS ZZ-R-765B-1970, With 1971 Amendment
1; and Liners, Case, and Sheet, Overwrap; Water-Vapor Proof or
Waterproof, Flexible, MIL-L-10547E-1975.
(e) Grade and connections -- (1) Horizontal vents. Each vent shall
extend vertically from its fixture ''T'' or point of connection with the
waste piping to a point not less than 6 inches above the extreme flood
level of the fixture it is venting before offsetting horizontally or
being connected with any other vent pipe. Vents for horizontal drains
shall connect above the centerline of the drain piping ahead
(downstream) of the trap. Where required by structural conditions, vent
piping may offset below the rim of the fixture at the maximum angle or
height possible.
(f) Vent terminal -- (1) Roof extension. Each vent pipe shall extend
through its flashing and terminate vertically, undiminished in size, not
less than 2 inches above the roof. Vent openings shall not be less than
3 feet away from any motor-driven air intake that opens into habitable
areas.
(2) Flashing. The opening around each vent pipe shall be made
watertight by an adequate flashing or flashing material.
(g) Vent caps. Vent caps, if provided, shall be of the removable
type (without removing the flashing from the roof). When vent caps are
used for roof space ventilation and the caps are identical to vent caps
used for the plumbing system, plumbing system caps shall be identified
with permanent markings.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 961, Jan. 4, 1977.
Redesignated at 44 FR 20679, Apr. 6, 1979 and amended at 52 FR 4586,
Feb. 12, 1987; 52 FR 47553, Dec. 15, 1987)
24 CFR 3280.612 Tests and inspection.
(a) Water system. All water piping in the water distribution system
shall be subjected to a pressure test. The test shall be made by
subjecting the system to air or water at 100 psi for 15 minutes without
loss of pressure.
(b) Drainage and vent system and plumbing fixtures. The waste and
vent system shall be tested by one of the three following alternate
methods for evidence or indication of leakage:
(1) Water test. Before plumbing fixtures are connected, all of the
openings into the piping shall be plugged and the entire piping system
subjected to a static water test for 15 minutes by filling it with water
to the top of the highest vent opening. There shall be no evidence of
leakage.
(2) Air test. After all fixtures have been installed, the traps
filled with water, and the remaining openings securely plugged, the
entire system shall be subjected to a 2-inch (manometer) water column
air pressure test. If the system loses pressure, leaks may be located
with smoke pumped into the system, or with soap suds spread on the
exterior of the piping (Bubble test).
(3) Flood level test. The manufactured home shall be in a level
position, all fixtures shall be connected, and the entire system shall
be filled with water to the rim of the toilet bowl. (Tub and shower
drains shall be plugged). After all trapped air has been released, the
test shall be sustained for not less than 15 minutes without evidence of
leaks. Then the system shall be unplugged and emptied. The waste
piping above the level of the toilet bowl shall then be tested and show
no indication of leakage when the high fixtures are filled with water
and emptied simultaneously to obtain the maximum possible flow in the
drain piping.
(c) Fixture test. The plumbing fixtures and connections shall be
subjected to a flow test by filling them with water and checking for
leaks and retarded flow while they are being emptied.
(d) Shower compartments. Shower compartments and receptors shall be
tested for leaks prior to being covered by finish material. Each pan
shall be filled with water to the top of the dam for not less than 15
minutes without evidence of leakage.
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 961, Jan. 4, 1977;
42 FR 54383, Oct. 5, 1977. Redesignated at 44 FR 20679, Apr. 6, 1979)
24 CFR 3280.612 Subpart H -- Heating, Cooling and Fuel Burning Systems
24 CFR 3280.701 Scope.
Subpart H of this standard covers the heating, cooling and fuel
burning equipment installed within, on, or external to a manufactured
home.
24 CFR 3280.702 Definitions.
(a) The definitions in this subpart apply to subpart H only.
(1) Accessible, when applied to a fixture, connection, appliance or
equipment, means having access thereto, but which may require the
removal of an access panel, door or similar obstruction.
(2) Air conditioner blower coil system means a comfort cooling
appliance where the condenser section is placed external to the
manufactured home and evaporator section with circulating blower
attached to the manufactured home air supply duct system. Provision
must be made for a return air system to the evaporator/blower section.
Refrigerant connection between the two parts of the system is
accomplished by tubing.
(3) Air conditioner split system means a comfort cooling appliance
where the condenser section is placed external to the manufactured home
and the evaporator section incorporated into the heating appliance or
with a separate blower/coil section within the manufactured home.
Refrigerant connection between the two parts of the system is
accomplished by tubing.
(4) Air conditioning condenser section means that portion of a
refrigerated air cooling or (in the case of a heat pump) heating system
which includes the refrigerant pump (compressor) and the external heat
exchanger.
(5) Air conditioning evaporator section means a heat exchanger used
to cool or (in the case of a heat pump) heat air for use in comfort
cooling (or heating) the living space.
(6) Air conditioning self contained system means a comfort cooling
appliance combining the condenser section, evaporator and air
circulating blower into one unit with connecting ducts for the supply
and return air systems.
(7) Air duct means conduits or passageways for conveying air to or
from heating, cooling, air conditioning or ventilation equipment, but
not including the plenum.
(8) Automatic pump (oil lifter) means a pump, not an integral part of
the oil-burning appliance, that automatically pumps oil from the supply
tank and delivers the oil under a constant head to an oil-burning
appliance.
(9) Btu. British thermal units means the quantity of heat required
to raise the temperature of one pound of water one degree Fahrenheit.
(10) Btuh means British thermal units per hour.
(11) Burner means a device for the final conveyance of fuel or a
mixture of fuel and air to the combustion zone.
(12) Central air conditioning system means either an air conditioning
split system or an external combination heating/cooling system.
(13) Class 0 air ducts means ducts of materials and connectors having
a fire-hazard classification of zero.
(14) Class 1 air ducts means ducts of materials and connectors having
a flame-spread rating of not over 25 without evidence of continued
progressive combustion and a smoke-developed rating of not over 50.
(15) Class 2 air ducts means ducts of materials and connectors having
a flame-spread rating of not over 50 without evidence of continued
progressive combustion and a smoke-developed rating of not over 50 for
the inside surface and not over 100 for the outside surface.
(16) Clearance means the distance between the appliance, chimney,
vent, chimney or vent connector or plenum and the nearest surface.
(17) Connector-Gas appliance means a flexible or semi-rigid connector
listed as conforming to ANSI Standard Z21.24-1981, With Addenda 24a-1983
and 24b-1985; Metal Connectors for Gas Appliances, used to convey fuel
gas, three feet or less in length (six feet or less for gas ranges),
between a gas outlet and a gas appliance in the same room with the
outlet.
(18) Energy Efficiency Ratio (EER) means the ratio of the cooling
capacity output of an air conditioner for each unit of power input.
EER=Capacity (Btuh)/Power input (watts)
(19) External combination heating/cooling system means a comfort
conditioning system placed external to the manufactured home with
connecting ducts to the manufactured home for the supply and return air
systems.
(20) Factory-built fireplace means a hearth, fire chamber and chimney
assembly composed of listed factory-built components assembled in
accordance with the terms of listing to form a complete fireplace.
(21) Fireplace stove means a chimney connected solid fuel-burning
stove having part of its fire chamber open to the room.
(22) Fuel gas piping system means the arrangement of piping, tubing,
fittings, connectors, valves and devices designed and intended to supply
or control the flow of fuel gas to the appliance(s).
(23) Fuel oil piping system means the arrangement of piping, tubing,
fittings, connectors, valves and devices designed and intended to supply
or control the flow of fuel oil to the appliance(s).
(24) Gas clothes dryer means a device used to dry wet laundry by
means of heat derived from the combustion of fuel gases.
(25) Gas refrigerator means a gas-burning appliance which is designed
to extract heat from a suitable chamber.
(26) Gas supply connection means the terminal end or connection to
which a gas supply connector is attached.
(27) Gas supply connector, manufactured home means a listed flexible
connector designed for connecting the manufactured home to the gas
supply source.
(28) Gas vents means factory-built vent piping and vent fittings
listed by an approved testing agency, that are assembled and used in
accordance with the terms of their listings, for conveying flue gases to
the outside atmosphere.
(i) Type B Gas Vent means a gas vent for venting gas appliances with
draft hoods and other gas appliances listed for use with Type B Gas
Vents.
(ii) Type BW Gas Vent means a gas vent for venting listed gas-fired
vented wall furnaces.
(29) Heat producing appliance means all heating and cooking
appliances and fuel burning appliances.
(30) Heating appliance means an appliance for comfort heating or for
domestic water heating.
(31) Liquefied petroleum gases. The terms Liquefied petroleum gases,
LPG and LP-Gas as used in this standard shall mean and include any
material which is composed predominantly of any of the following
hydrocarbons, or mixtures of them: propane, propylene butanes (normal
butane or isobutane), and butylenes.
(32) Plenum means an air compartment which is part of an
air-distributing system, to which one or more ducts or outlets are
connected. (i) Furnace supply plenum is a plenum attached directly to,
or an integral part of, the air supply outlet of the furnace. (ii)
Furnace return plenum is a plenum attached directly to, or an integral
part of, the return inlet of the furnace.
(33) Quick-disconnect device means a hand-operated device which
provides a means for connecting and disconnecting a gas supply or
connecting gas systems and which is equipped with an automatic means to
shut off the gas supply when the device is disconnected.
(34) Readily accessible means direct access without the necessity of
removing any panel, door, or similar obstruction.
(35) Roof jack means that portion of a manufactured home heater flue
or vent assembly, including the cap, insulating means, flashing, and
ceiling plate, located in and above the roof of a manufactured home.
(36) Sealed combustion system appliance means an appliance which by
its inherent design is constructed so that all air supplied for
combustion, the combustion system of the appliance, and all products of
combustion are completely isolated from the atmosphere of the space in
which it is installed.
(37) Water heater means an appliance for heating water for domestic
purposes other than for space heating.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4586, Feb. 12, 1987)
24 CFR 3280.703 Minimum standards.
Heating, cooling and fuel burning appliances and systems in
manufactured homes shall be free of defects, and shall conform to
applicable standards in the following table unless otherwise specified
in this standard. (See 3280.4)
(52 FR 4586, Feb. 12, 1987)
24 CFR 3280.704 Fuel supply systems.
(a) LP -- Gas system design and service line pressure. (1) Systems
shall be of the vapor-withdrawal type.
(2) Gas, at a pressure not over 14 inches water column ( 1/2 psi),
shall be delivered from the system into the gas supply connection.
(b) LP-gas containers -- (1) Maximum capacity. No more than two
containers having an individual water capacity of not more than 105
pounds (approximately 45 pounds LP-Gas capacity), shall be installed on
or in a compartment of any manufactured home.
(2) Construction of containers. Containers shall be constructed and
marked in accordance with the specifications for LP-Gas Containers of
the U.S. Department of Transportation (DOT) or the Rules for
Construction of Pressure Vessels 1974, ASME Boiler and Pressure Vessel
Code section VIII, Division 1 ASME Containers shall have a design
pressure of at least 312.5 psig.
(i) Container supply systems shall be arranged for vapor withdrawal
only.
(ii) Container openings for vapor withdrawal shall be located in the
vapor space when the container is in service or shall be provided with a
suitable internal withdrawal tube which communicates with the vapor
space on or near the highest point in the container when it is mounted
in service position, with the vehicle on a level surface. Containers
shall be permanently and legibly marked in a conspicuous manner on the
outside to show the correct mounting position and the position of the
service outlet connection. The method of mounting in place shall be
such as to minimize the possibility of an incorrect positioning of the
container.
(3) Location of LP-gas containers and systems. (i) LP-gas containers
shall not be installed, nor shall provisions be made for installing or
storing any LP-Gas container, even temporarily, inside any manufactured
home except for listed, completely self-contained hand torches,
lanterns, or similar equipment with containers having a maximum water
capacity of not more than 2 1/2 pounds (approximately one pound LP-Gas
capacity).
(ii) Containers, control valves, and regulating equipment, when
installed, shall be mounted on the ''A'' frame of the manufactured home,
or installed in a compartment that is vaportight to the inside of the
manufactured home and accessible only from the outside. The compartment
shall be ventilated at top and bottom to facilitate diffusion of vapors.
The compartment shall be ventilated with two vents having an aggregate
area of not less than two percent of the floor area of the compartment
and shall open unrestricted to the outside atmosphere. The required
vents shall be equally distributed between the floor and ceiling of the
compartment. If the lower vent is located in the access door or wall,
the bottom edge of the vent shall be flush with the floor level of the
compartment. The top vent shall be located in the access door or wall
with the bottom of the vent not more than 12 inches below the ceiling
level of the compartment. All vents shall have an unrestricted
discharge to the outside atmosphere. Access doors or panels of
compartments shall not be equipped with locks or require special tools
or knowledge to open.
(iii) Permanent and removable fuel containers shall be securely
mounted to prevent jarring loose, slipping or rotating and the
fastenings shall be designed and constructed to withstand static loading
in any direction equal to twice the weight of the tank and attachments
when filled with fuel, using a safety factor of not less than four based
on the ultimate strength of the material to be used.
(4) LP-gas container valves and accessories. (i) Valves in the
assembly of a two-cylinder system shall be arranged so that replacement
of containers can be made without shutting off the flow of gas to the
appliance(s). This provision is not to be construed as requiring an
automatic change-over device.
(ii) Shutoff valves on the containers shall be protected as follows,
in transit, in storage, and while being moved into final utilization by
setting into a recess of the container to prevent possibility of their
being struck if container is dropped upon a flat surface, or by
ventilated cap or collar, fastened to the container, capable of
withstanding a blow from any direction equivalent to that of a 30-pound
weight dropped 4 feet. Construction shall be such that the blow will
not be transmitted to the valve.
(iii) (Reserved)
(iv) Regulators shall be connected directly to the container shutoff
valve outlets or mounted securely by means of a support bracket and
connected to the container shutoff valve or valves with listed high
pressure connections. If the container is permanently mounted the
connector shall be as required above or with a listed semi-rigid tubing
connector.
(5) LP-gas safety devices. (i) DOT containers shall be provided with
safety relief devices as required by the regulations of the U.S.
Department of Transportation. ASME containers shall be provided with
relief valves in accordance with subsection 221 of the Storage and
Handling Liquefied Petroleum Gases, NFPA No. 58-1983. Safety relief
valves shall have direct communication with the vapor space of the
vessel.
(ii) The delivery side of the gas pressure regulator shall be
equipped with a safety relief device set to discharge at a pressure not
less than two times and not more than three times the delivery pressure
of the regulator.
(iii) Systems mounted on the ''A'' frame assembly shall be so located
that the discharge from the safety relief devices shall be into the open
air and not less than three feet horizontally from any opening into the
manufactured home below the level of such discharge.
(iv) Safety relief valves located within liquefied petroleum gas
container compartments may be less than three feet from openings
provided the bottom vent of the compartment is at the same level or
lower than the bottom of any opening into the vehicle, or the
compartment is not located on the same wall plane as the opening(s) and
is at least two feet horizontally from such openings.
(6) LP-gas system enclosure and mounting. (i) Housings and
enclosures shall be designed to provide proper ventilation at least
equivalent to that specified in 3280.704(b)(3)(ii).
(ii) Doors, hoods, domes, or portions of housings and enclosures
required to be removed or opened for replacement of containers shall
incorporate means for clamping them firmly in place and preventing them
from working loose during transit.
(iii) Provisions shall be incorporated in the assembly to hold the
containers firmly in position and prevent their movement during transit.
(iv) Containers shall be mounted on a substantial support or a base
secured firmly to the vehicle chassis. Neither the container nor its
support shall extend below the manufactured home frame.
(c) Oil tanks -- (1) Installation. Oil tanks and listed automatic
pumps (oil lifters) installed for gravity flow of oil to heating
equipment shall be installed so that the top of the tank is no higher
than 8 feet above the appliance oil control and the bottom of the tank
is not less than 18 inches above the appliance oil control.
(2) Auxiliary oil storage tank. Oil supply tanks affixed to a
manufactured home shall be so located as to require filling and draining
from the outside and shall be in a place readily available for
inspection. If the fuel supply tank is located in a compartment of a
manufactured home, the compartment shall be ventilated at the bottom to
permit diffusion of vapors and shall be insulated from the structural
members of the body. Tanks so installed shall be provided with an
outside fill and vent pipe and an approved liquid level gage.
(3) Shutoff valve. A readily accessible, approved manual shutoff
valve shall be installed at the outlet of an oil supply tank. The valve
shall be installed to close against the supply.
(4) Fuel oil filters. All oil tanks shall be equipped with an
approved oil filter or strainer located downstream from the tank shutoff
valve. The fuel oil filter or strainer shall contain a sump with a
drain for the entrapment of water.
(Sec. 625 of the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5424)
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979, and amended at 47 FR 49390, Nov. 1, 1982; 52 FR 4587, Feb. 12,
1987)
24 CFR 3280.705 Gas piping systems.
(a) General. The requirements of this section shall govern the
installation of all fuel gas piping attached to any manufactured home.
The gas piping supply system shall be designed for a pressure not
exceeding 14 inch water column ( 1/2 psi) and not less than 7 inch water
column ( 1/4 psi). The manufacturer shall indicate in his written
installation instructions the design pressure limitations for safe and
effective operation of the gas piping system. None of the requirements
listed in this section shall apply to the piping supplied as a part of
an appliance. All exterior openings around piping, ducts, plenums or
vents shall be sealed to resist the entrance of rodents.
(b) Materials. All materials used for the installation, extension,
alteration, or repair of any gas piping system shall be new and free
from defects or internal obstructions. It shall not be permissible to
repair defects in gas piping or fittings. Inferior or defective
materials shall be removed and replaced with acceptable material. The
system shall be made of materials having a melting point of not less
than 1,450 F, except as provided in 3280.705(e). They shall consist of
one or more of the materials described in 3280.705(b) (1) through (4).
(1) Steel or wrought-iron pipe shall comply with ANSI Standard
B36.10-1979, Welded and Seamless Wrought Steel Pipe. Threaded brass
pipe in iron pipe sizes may be used. Threaded brass pipe shall comply
with Standard Specification for Seamless Red Brass Pipe, Standard Sizes
(ASTM B 43-84).
(2) Fittings for gas piping shall be wrought iron, malleable iron,
steel, or brass (containing not more than 75 percent copper).
(3) Copper tubing shall be annealed type, Grade K or L, conforming to
the Standard Specification for Seamless Copper Water Tube (ASTM B
88-83a), or shall comply with the Standard Specification for Seamless
Copper Tube for Air Conditioning and Refrigeration Field Service, ASTM B
280-83. When used on systems designed for natural gas, such tubing
shall be internally tinned.
(4) Steel tubing shall have a minimum wall thickness of 0.032 inch
for tubing of 1/2 inch diameter and smaller and 0.049 inch for diameters
1/2 inch and larger. Steel tubing shall be constructed in accordance
with ASTM Standard Specification for Electric-Resistance-Welded Coiled
Steel Tubing for Gas and Fuel Oil Lines, ASTM A 539-83, and shall be
externally corrosion protected.
(c) Piping design. Each manufactured home requiring fuel gas for any
purpose shall be equipped with a fuel gas piping system that is designed
for LP-Gas only or with a natural gas piping system acceptable for
LP-Gas.
(1) Where fuel gas piping is to be installed in both portions of an
expandable or multiple unit manufactured home, the design and
construction of the crossover shall be as follows: (i) There shall be
only one point of crossover which shall be readily accessible from the
exterior of the manufactured home.
(ii) The connector between units shall be a listed type for exterior
use, sized in accordance with 3280.705(d).
(iii) The connection shall be made by a listed ''quick disconnect''
device which shall be designed to provide a positive seal of the supply
side of the gas system when such device is separated.
(iv) The flexible connector and ''quick disconnect'' device shall be
provided with protection from mechanical and impact damage and located
to minimize the possibility of tampering.
(v) Suitable protective coverings for the ''quick disconnect''
device, when separated, shall be permanently attached to the device or
flexible connector.
(vi) A 3 inch by 1 3/4 inch minimum size tag made of etched,
metal-stamped or embossed brass, stainless steel, anodized or alclad
aluminum not less than 0.020 inch thick, or other approved material
(e.g., 0.005 inch plastic laminates) shall be permanently attached on
the exterior wall adjacent to the access to the ''quick disconnect''
device. Each tag shall be legibly inscribed with the following
information using letters no smaller than 1/4 inch high:
Do Not Use Tools to Separate the ''Quick-Disconnect'' Device.
(d) Gas pipe sizing. Gas piping systems shall be sized so that the
pressure drop to any appliance inlet connection from any gas supply
connection, when all appliances are in operation at maximum capacity, is
not more than 0.5 inch water column as determined on the basis of test,
or in accordance with the following table. When determining gas pipe
sizing in the table, gas shall be assumed to have a specific gravity of
0.65 and rated at 1000 B.T.U. per cubic foot. The natural gas supply
connection(s) shall be not less than the size of the gas piping but
shall be not smaller than 3/4 inch nominal pipe size.
(e) Joints for gas pipe. All pipe joints in the piping system,
unless welded or brazed, shall be threaded joints that comply with Pipe
Threads, General Purpose (Inch), adopted 25 October 1984, ANSI/ASME
B1.20.1-1983. Right and left nipples or couplings shall not be used.
Unions, if used, shall be of ground joint type. The material used for
welding or brazing pipe connections shall have a melting temperature in
excess of 1,000 F.
(f) Joints for tubing. (1) Tubing joints shall be made with either a
single or a double flare of 45 degrees in accordance with Flares For
Tubing, SAE-J533b-1972 or with other listed vibration-resistant
fittings, or joints may be brazed with material having a melting point
exceeding 1,000 F. Metallic ball sleeve compression-type tubing
fittings shall not be used.
(2) Steel tubing joints shall be made with a double-flare in
accordance with Flares For Tubing, SAE-J533b-1972.
(g) Pipe joint compound. Screw joints shall be made up tight with
listed pipe joint compound, insoluble in liquefied petroleum gas, and
shall be applied to the male threads only.
(h) Concealed tubing. Tubing shall not be run inside walls, floors,
partitions, or roofs. Where tubing passes through walls, floors,
partitions, roofs, or similar installations, such tubing shall be
protected by the use of weather resistant grommets that shall snugly fit
both the tubing and the hole through which the tubing passes.
(i) Concealed joints. Piping or tubing joints shall not be located
in any floor, wall partition, or similar concealed construction space.
(j) Gas supply connections. When gas appliances are installed, at
least one gas supply connection shall be provided on each home. The
connection shall not be located beneath an exit door. Where more than
one connection is provided, the piping system shall be sized to provide
adequate capacity from each supply connection.
(k) Identification of gas supply connections. Each manufactured home
shall have permanently affixed to the exterior skin at or near each gas
supply connection or the end of the pipe, a tag of 3 inches by 1 3/4
inches minimum size, made of etched, metal-stamped or embossed brass,
stainless steel, anodized or alclad aluminum not less than 0.020 inch
thick, or other approved material (e.g., 0.005 inch plastic laminates),
which reads (as appropriate) in accordance with one of the following
label designs depending upon the fuel used.
24 CFR 3280.705 LP-Gas System
24 CFR 3280.705 DO NOT CONNECT NATURAL GAS TO THIS SYSTEM.
24 CFR 3280.705 CONTAINER SHUTOFF VALVES SHALL BE CLOSED DURING
TRANSIT.
When connecting to lot outlet, use a listed gas supply
connector for mobile
more.
Before turning on gas, make certain all gas connections
have been made tight, all appliance valves are turned off, and any
unconnected outlets are capped.
After turning on gas, test gas piping and connections to
appliances for leakage with soapy water or bubble solution, and light
all pilots.
24 CFR 3280.705 Combination LP-Gas and Natural Gas System
This gas piping system is designed for use of either
liquefied petroleum gas or natural gas.
DESIGNED FOR THE GAS CONNECTED AND ARE EQUIPPED WITH CORRECT ORIFICES.
SECURELY CAP THIS INLET WHEN NOT CONNECTED FOR USE.
When connecting to lot outlet, use a listed gas supply
connector for mobile
more.
Before turning on gas, make certain all gas connections
have been made tight, all appliance valves are turned off, and any
unconnected outlets are capped.
After turning on gas, test gas piping and connections to
appliances for leakage with soapy water or bubble solution, and light
all pilots.
The connector capacity indicated on this tag shall be equal to or
greater than the total Btuh rating of all intended gas appliances.
(l) Gas supply connectors. (1) LP-Gas. A listed LP-Gas flexible
connector conforming to the UL Standard for Pigtails, and Flexible Hose
Connectors for LP-Gas (UL 569-Fifth Edition-1980, as amended through
1985) or equal shall be supplied when the fuel gas piping system is
designed for the use of LP-Gas and cylinder(s) and regulator(s) are
supplied.
(2) Appliance connections. All gas burning appliances shall be
connected to the fuel piping. Materials as provided in 3280.705(b) or
listed appliance connectors shall be used. Listed appliance connectors
when used shall not run through walls, floors, ceilings or partitions.
Connectors of aluminum shall not be used outdoors. A manufactured home
containing an LPG or combination LP-natural-gas-system may be provided
with a gas outlet to supply exterior appliances when installed in
accordance with the following:
(i) No portion of the completed installation shall project beyond the
wall of the manufactured home.
(ii) The outlet shall be provided with an approved
''quick-disconnect'' device, which shall be designed to provide a
positive seal on the supply side of the gas system when the appliance is
disconnected. A shutoff valve shall be installed immediately upstream
of the quick-disconnect device. The complete device shall be provided
as part of the original installation.
(iii) Protective caps or plugs for the ''quick-disconnect'' device,
when disconnected, shall be permanently attached to the manufactured
home adjacent to the device.
(iv) A tag shall be permanently attached to the outside of the
exterior wall of the manufactured home as close as possible to the gas
supply connection. The tag shall indicate the type of gas and the Btuh
capacity of the outlet and shall be legibly inscribed as follows:
THIS OUTLET IS DESIGNED FOR USE WITH GAS PORTABLE APPLIANCES WHOSE
TOTAL INPUT DO NOT EXCEED ------ BTUH. REPLACE PROTECTIVE COVERING OVER
CONNECTOR WHEN NOT IN USE.
(3) Valves. A shutoff valve shall be installed in the fuel piping at
each appliance inside the manufactured home structure, upstream of the
union or connector in addition to any valve on the appliance and so
arranged to be accessible to permit servicing of the appliance and
removal of its components. The shutoff valve shall be located within 6
feet of a cooking appliance and within 3 feet of any other appliance. A
shutoff valve may serve more than one appliance if located as required
above. Shutoff valves used in connection with gas piping shall be of a
type designed and listed for use on LP-Gas.
(4) Gas piping system openings. All openings in the gas piping
system shall be closed gas-tight with threaded pipe plugs or pipe caps.
(5) Electrical ground. Gas piping shall not be used for an
electrical ground.
(6) Couplings. Pipe couplings and unions shall be used to join
sections of threaded piping. Right and left nipples or couplings shall
not be used.
(7) Hangers and supports. All gas piping shall be adequately
supported by galvanized or equivalently protected metal straps or
hangers at intervals of not more than 4 feet, except where adequate
support and protection is provided by structural members.
Solid-iron-pipe gas supply connection(s) shall be rigidly anchored to a
structural member within 6 inches of the supply connection(s).
(8) Testing for leakage. (i) Before appliances are connected, piping
systems shall stand a pressure of at least six inches mercury or three
PSI gage for a period of not less than ten minutes without showing any
drop in pressure. Pressure shall be measured with a mercury manometer
or slope gage calibrated so as to be read in increments of not greater
than one-tenth pound, or an equivalent device. The source of normal
operating pressure shall be isolated before the pressure tests are made.
Before a test is begun, the temperature of the ambient air and of the
piping shall be approximately the same, and constant air temperature be
maintained throughout the test.
(ii) After appliances are connected, the piping system shall be
pressurized to not less than 10 inches nor more than 14 inches water
column and the appliance connections tested for leakage with soapy water
or bubble solution.
(Secs. 604 and 625 of the National Manufactured Housing Construction
and Safety Standards Act (42 U.S.C. 5403 and 5424) and sec. 7(d), Dept.
of HUD Act (42 U.S.C. 3535(d)))
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 54383, Oct. 5, 1977.
Redesignated at 44 FR 20679, Apr. 6, 1979, and amended at 52 FR 4587,
Feb. 12, 1987; 52 FR 47553, Dec. 15, 1987)
24 CFR 3280.706 Oil piping systems.
(a) General. The requirements of this section shall govern the
installation of all liquid fuel piping attached to any manufactured
home. None of the requirements listed in this section shall apply to
the piping in the appliance(s).
(b) Materials. All materials used for the installation extension,
alteration, or repair, of any oil piping systems shall be new and free
from defects or internal obstructions. The system shall be made of
materials having a melting point of not less than 1,450 F, except as
provided in 280.706(d) and (e). They shall consist of one or more of
the materials described in 3280.706(b) (1) through (4).
(1) Steel or wrought-iron pipe shall comply with ANSI B 36.10-1979,
Welded and Seamless Wrought Steel Pipe. Threaded copper or brass pipe
in iron pipe sizes may be used.
(2) Fittings for oil piping shall be wrought-iron, malleable iron,
steel, or brass (containing not more than 75 percent copper).
(3) Copper tubing shall be annealed type, Grade K or L conforming to
the Standard Specification for Seamless Copper Water Tube (ASTM B
88-83a), or shall comply with the Standard Specification for Seamless
Copper Tube for Air Conditioning and Refrigeration Field Service, ASTM B
280-83.
(4) Steel tubing shall have a minimum wall thickness of 0.032 inch
for diameters up to 1/2 inch and 0.049 inch for diameters 1/2 inch and
larger. Steel tubing shall be constructed in accordance with the
Specification for Electric-Resistance Welded Coiled Steel Tubing for Gas
and Fuel Oil Lines (ASTM A 539 -- 83) and shall be externally corrosion
protected.
(c) Size of oil piping. The minimum size of all fuel oil tank piping
connecting outside tanks to the appliance shall be no smaller than 3/8
inch OD copper tubing or 1/4 inch IPS. If No. 1 fuel oil is used with
a listed automatic pump (fuel lifter), copper tubing shall be sized as
specified by the pump manufacturer.
(d) Joints for oil piping. All pipe joints in the piping system,
unless welded or brazed, shall be threaded joints which comply with
ANSI/ASME B1.20.1-1983, Pipe Threads, General Purpose (Inch). The
material used for brazing pipe connections shall have a melting
temperature in excess of 1,000 F.
(e) Joints for tubing. Joints in tubing shall be made with either a
single or double flare of the proper degree, as recommended by the
tubing manufacturer, by means of listed tubing fittings, or brazed with
materials having a melting point in excess of 1,000 F.
(f) Pipe joint compound. Threaded joints shall be made up tight with
listed pipe joint compound which shall be applied to the male threads
only.
(g) Couplings. Pipe couplings and unions shall be used to join
sections of threaded pipe. Right and left nipples or couplings shall
not be used.
(h) Grade of piping. Fuel oil piping installed in conjunction with
gravity feed systems to oil heating equipment shall slope in a gradual
rise upward from a central location to both the oil tank and the
appliance in order to eliminate air locks.
(i) Strap hangers. All oil piping shall be adequately supported by
galvanized or equivalently protected metal straps or hangers at
intervals of not more than 4 feet, except where adequate support and
protection is provided by structural members. Solid-iron-pipe oil
supply connection(s) shall be rigidly anchored to a structural member
within 6 inches of the supply connection(s).
(j) Testing for leakage. Before setting the system in operation,
tank installations and piping shall be checked for oil leaks with fuel
oil of the same grade that will be burned in the appliance. No other
material shall be used for testing fuel oil tanks and piping. Tanks
shall be filled to maximum capacity for the final check for oil leakage.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979, and amended at 52 FR 4588, Feb. 12, 1987; 52 FR 47553, Dec. 15,
1987)
24 CFR 3280.707 Heat producing appliances.
(a) Heat-producing appliances and vents, roof jacks and chimneys
necessary for their installation in manufactured homes shall be listed
or certified by a nationally recognized testing agency for use in
manufactured homes.
(1) A manufactured home shall be provided with a comfort heating
system. (i) When a manufactured home is manufactured to contain a
heating appliance, the heating appliance shall be installed by the
manufacturer of the manufactured home in compliance with applicable
sections of this subpart.
(ii) When a manufactured home is manufactured for field application
of an external heating or combination heating/cooling appliance,
preparation of the manufactured home for this external application shall
comply with the applicable sections of this part.
(2) Gas and oil burning comfort heating appliances shall have a flue
loss of not more than 25 percent, and a thermal efficiency of not less
than that specified in nationally recognized standards (See 3280.703).
(b) Fuel-burning heat-producing appliances and refrigeration
appliances, except ranges and ovens, shall be of the vented type and
vented to the outside.
(c) Fuel-burning appliances shall not be converted from one fuel to
another fuel unless converted in accordance with the terms of their
listing and the appliance manufacturer's instructions.
(d) Performance efficiency. (1) All automatic electric storage water
heaters installed in manufactured homes shall have a standby loss not
exceeding 43 watts/meter /2/ (4 watts/ft /2/ ) of tank surface area.
The method of test for standby loss shall be as described in section
4.3.1 of Household Automatic Electric Storage Type Water Heaters, ANSI
C72.1-1972.
(2) All gas and oil-fired automatic storage water heaters shall have
a recovery efficiency, E, and a standby loss, S, as described below.
The method of test of E and S shall be as described in Section 2.7 of
Gas Water Heaters, Vol. I, Storage Water Heaters with Input/Ratings of
75,000 BTU per hour or less, ANSI Z21.10.1-1984, With Addendas ANSI
Z21.10.1a-1985 and ANSI Z21.10.1b-1986, except that for oil-fired units.
CF=1.0, Q=total gallons of oil consumed and H=total heating value of
oil in BTU/gallon.
(e) Each space heating, cooling or combination heating and cooling
system shall be provided with at least one readily adjustable automatic
control for regulation of living space temperature. The control shall
be placed a minimum of 3 feet from the vertical edge of the appliance
compartment door. It shall not be located on an exterior wall or on a
wall separating the appliance compartment from a habitable room.
(f) Oil-fired heating equipment. All oil-fired heating equipment
shall conform to liquid fuel-burning heating appliances for UL 307A --
Fifth Edition -- 1987, Liquid Fuel-Burning Heating Appliances for Mobile
Homes and Recreational Vehicles, and be installed in accordance with
Installation of Oil Burning Equipment, NFPA 31-1983. Regardless of the
requirements of the above referenced standards, or any other referenced
standards, the following are not required:
(1) External switches or remote controls which shut off the burner or
the flow of oil to the burner, or
(2) An emergency disconnect switch to interrupt electric power to the
equipment under conditions of excessive temperature.
(Secs. 604 and 625 of Title VI of Pub. L. 93-383, (42 U.S.C. 5403 and
5424), and sec. 7(d), Department of HUD Act (42 U.S.C. 3535(d)))
(40 FR 58752, Dec. 17, 1975, as amended at 42 FR 54383, Oct. 5, 1977.
Redesignated at 44 FR 20679, Apr. 6, 1979 and amended at 47 FR 49391,
Nov. 1, 1982; 52 FR 4588, Feb. 12, 1987; 52 FR 47553, Dec. 15, 1987)
24 CFR 3280.708 Exhaust duct system and provisions for the future
installation of a clothes dryer.
(a) Clothes dryers. (1) All gas and electric clothes dryers shall be
exhausted to the outside by a moisture-lint exhaust duct and termination
fitting. When the clothes dryer is supplied by the manufacturer, the
exhaust duct and termination fittings shall be completely installed by
the manufacturer. However, if the exhaust duct system is subject to
damage during transportation, it need not be completely installed at the
factory when: (i) The exhaust duct system is connected to the clothes
dryer, and (ii) a moisture lint exhaust duct system is roughed in and
installation intructions are provided in accordance with paragraph (b)
(3) or (c) of this section.
(2) A clothes dryer moisture-lint exhaust duct shall not be connected
to any other duct, vent or chimney.
(3) The exhaust duct shall not terminate beneath the manufactured
home.
(4) Moisture-lint exhaust ducts shall not be connected with sheet
metal screws or other fastening devices which extend into the interior
of the duct.
(5) Moisture-lint exhaust duct and termination fittings shall be
installed in accordance with the appliance manufacturer's printed
instructions.
(b) Provisions for future intallation of a gas clothes dryer. A
manufactured home may be provided with ''stubbed in'' equipment at the
factory to supply a gas clothes dryer for future installation by the
owner provided it complies with the following provisions:
(1) The ''stubbed in'' gas outlet shall be provided with a shutoff
valve, the outlet of which is closed by threaded pipe plug or cap;
(2) The ''stubbed in'' gas outlet shall be permanently labeled to
identify it for use only as the supply connection for a gas clothes
dryer;
(3) A moisture-lint exhaust duct system shall be roughed in by the
manufacturer. The manufacturer shall provide written instructions to
the owner on how to complete the exhaust duct installation in accordance
with provisions of paragraphs (a) (1) through (5) of this section.
(c) Provisions for future installation of a electric clothes dryers.
When wiring is installed to supply an electric clothes dryer for future
installation by the owner, the manufacturer shall: (1) Provide a
roughed in moisture-lint exhaust duct system; (2) install a receptacle
for future connection of the dryer; (3) provide written instructions on
how to complete the exhaust duct installation in accordance with the
provisions of paragraphs (a) (1) through (5) of this section.
(Secs. 604 and 625 of the National Manufactured Housing Construction
and Safety Standards Act (42 U.S.C. 5403 and 5424) and sec. 7(d),
Department of HUD Act (42 U.S.C. 3535(d)))
(42 FR 54383, Oct. 5, 1977. Redesignated at 44 FR 20679, Apr. 6,
1979)
24 CFR 3280.709 Installation of appliances.
(a) The installation of each appliance shall conform to the terms of
its listing and the manufacturer's instructions. The installer shall
leave the manufacturer's instructions attached to the appliance. Every
appliance shall be secured in place to avoid displacement. For the
purpose of servicing and replacement, each appliance shall be both
accessible and removable.
(b) Heat-producing appliances shall be so located that no doors,
drapes, or other such material can be placed or swing closer to the
front of the appliance than the clearances specified on the labeled
appliances.
(c) Clearances surrounding heat producing appliances shall not be
less than the clearances specified in the terms of their listings.
(1) Prevention of storage. The area surrounding heat producing
appliances installed in areas with interior or exterior access shall be
framed-in or guarded with noncombustible material such that the distance
from the appliance to the framing or guarding material is not greater
than three inches unless the appliance is installed in compliance with
paragraph (c)(2), of this section. When clearance required by the
listing is greater than three inches, the guard or frame shall not be
closer to the appliance than the distance provided in the listing.
(2) Clearance spaces surrounding heat producing appliances are not
required to be framed-in or guarded when:
(i) A space is designed specifically for a clothes washer or dryer;
(ii) Dimensions surrounding the appliance do not exceed three inches;
or
(iii) The manufacturer affixes either to a side of an alcove or
compartment containing the appliance, or to the appliance itself, in a
clearly visible location, a 3''x5'' adhesive backed plastic laminated
label or the equivalent which reads as follows:
This compartment is not to be used as a storage area. Storage of
combustible materials or containers on or near any appliance in this
compartment may create a fire hazard. Do not store such materials or
containers in this compartment.
(d) All fuel-burning appliances, except ranges, ovens, illuminating
appliances, clothes dryers, solid fuel-burning fireplaces and solid
fuel-burning fireplace stoves, shall be installed to provide for the
complete separation of the combustion system from the interior
atmosphere of the manufactured home. Combustion air inlets and flue gas
outlets shall be listed or certified as components of the appliance.
The required separation may be obtained by:
(1) The installation of direct vent system (sealed combustion system)
appliances, or
(2) The installation of appliances within enclosures so as to
separate the appliance combustion system and venting system from the
interior atmosphere of the manufactured home. There shall not be any
door, removable access panel, or other opening into the enclosure from
the inside of the manufactured home. Any opening for ducts, piping,
wiring, etc., shall be sealed.
(e) A forced air appliance and its return-air system shall be
designed and installed so that negative pressure created by the
air-circulating fan cannot affect its or another appliance's combustion
air supply or act to mix products of combustion with circulating air.
(1) The air circulating fan of a furnace installed in an enclosure
with another fuel-burning appliance shall be operable only when any door
or panel covering an opening in the furnace fan compartment or in a
return air plenum or duct is in the closed position. This does not
apply if both appliances are direct vent system (sealed combustion
system) appliances.
(2) If a warm air appliance is installed within an enclosure to
conform to 3280.709(d)(2), each warm-air outlet and each return air
inlet shall extend to the exterior of the enclosure. Ducts, if used for
that purpose, shall not have any opening within the enclosure and shall
terminate at a location exterior to the enclosure.
(3) Cooling coils installed as a portion of, or in connection with,
any forced-air furnace shall be installed on the downstream side unless
the furnace is specifically otherwise listed.
(4) An air conditioner evaporator section shall not be located in the
air discharge duct or plenum of any forced-air furnace unless the
manufactured home manufacturer has complied with certification required
in 3280.511.
(5) If a cooling coil is installed with a forced-air furnace, the
coil shall be installed in accordance with its listing. When a
furnace-coil unit has a limited listing, the installation must be in
accordance with that listing.
(6) When an external heating appliance or combination cooling/heating
appliance is to be applied to a manufactured home, the manufacturer
shall make provision for proper location of the connection to the
manufactured home supply system and return air system of the external
ducts connected to the appliance.
(7) The installation of a self contained air conditioner comfort
cooling appliance shall meet the following requirements:
(i) The installation on a duct common with an installed heating
appliance shall require the installation of an automatic damper or other
means to prevent the cooled air from passing through the heating
appliance unless the heating appliance is certified or listed for such
application and the supply system is intended for such an application.
(ii) The installation shall prevent the flow of heated air into the
external cooling appliance and its connecting ducts to the manufactured
home supply and return air system during the operation of the heating
appliance installed in the manufactured home.
(iii) The installation shall prevent simultaneous operation of the
heating and cooling appliances.
(f) Vertical clearance above cooking top. Ranges shall have a
vertical clearance above the cooking top of not less than 24 inches.
(See 3280.204).
(g) Solid fuel-burning factory-built fireplaces and fireplace stoves
listed for use in manufactured homes may be installed in manufactured
homes provided they and their installation conform to the following
paragraphs. A fireplace or fireplace stove shall not be considered as a
heating facility for determining compliance with subpart F.
(1) A solid fuel-burning fireplace or fireplace stove shall be
equipped with integral door(s) or shutter(s) designed to close the
fireplace or fireplace stove fire chamber opening and shall include
complete means for venting through the roof, a combustion air inlet, a
hearth extension, and means to securely attach the fireplace or the
fireplace stove to the manufactured home structure. The installation
shall conform to the following paragraphs (g)(1) (i) to (vii) inclusive:
(i) A listed factory-built chimney designed to be attached directly
to the fireplace or fireplace stove shall be used. The listed factory
built chimney shall be equipped with and contain as part of its listing
a termination device(s) and a spark arrester(s).
(ii) A fireplace or fireplace stove, air intake assembly, hearth
extension and the chimney shall be installed in accordance with the
terms of their listings and their manufacturer's instructions.
(iii) The combustion air inlet shall conduct the air directly into
the fire chamber and shall be designed to prevent material from the
hearth dropping onto the area beneath the manufactured home.
(iv) The fireplace or fireplace stove shall not be installed in a
sleeping room.
(v) Hearth extension shall be of noncombustible material not less
than 3/8-inch thick. The hearth shall extend at least 16 inches in
front or and at least 8 inches beyond each side of the fireplace or
fireplace stove opening. Furthermore the hearth shall extend over the
entire surface beneath a fireplace stove and beneath an elevated or
overhanging fireplace.
(vi) The label on each solid fuel-burning fireplace and solid
fuel-burning fireplace stove shall include the following wording: For
use with solid fuel only.
(vii) The chimney shall extend at least three feet above the part of
the roof through which it passes and at least two feet above the highest
elevation of any part of the manufactured home within 10 feet of the
chimney. Portions of the chimney and termination that exceed an
elevation of 13 1/2 ft. above ground level may be designed to be
removed for transporting the manufactured home.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979, and amended at 44 FR 66195, Nov. 19, 1979)
24 CFR 3280.710 Venting, ventilation and combustion air.
(a) The venting as required by 3280.707(b) shall be accomplished by
one or more of the methods given in (a) (1) and (2) of this section:
(1) An integral vent system listed or certified as part of the
appliance.
(2) A venting system consisting entirely of listed components,
including roof jack, installed in accordance with the terms of the
appliance listing and the appliance manufacturer's instructions.
(b) Venting and combustion air systems shall be installed in
accordance with the following:
(1) Components shall be securely assembled and properly aligned using
the method shown in the appliance manufacturer's instructions.
(2) Draft hood connectors shall be firmly attached to draft hood
outlets or flue collars by sheet metal screws or by equivalent effective
mechanical fasteners.
(3) Every joint of a vent, vent connector, exhaust duct and
combustion air intake shall be secure and in alignment.
(c) Venting systems shall not terminate underneath a manufactured
home.
(d) Venting system terminations shall be not less than three feet
from any motor-driven air intake discharging into habitable areas.
(e) The area in which cooking appliances are located shall be
ventilated by a metal duct which may be single wall, not less than 12.5
square inches in cross-sectional area (minimum dimension shall be two
inches) located above the appliance(s) and terminating outside the
manufactured home, or by listed mechanical ventilating equipment
discharging outside the home, that is installed in accordance with the
terms of listing and the manufacturer's instructions. Gravity or
mechanical ventilation shall be installed within a horizontal distance
of not more than ten feet from the vertical front of the appliance(s).
(f) Mechanical ventilation which exhausts directly to the outside
atmosphere from the living space of a home shall be equipped with an
automatic or manual damper. Operating controls shall be provided such
that mechanical ventilation can be separately operated without directly
energizing other energy consuming devices.
(g) Ventilation improvement options to improve indoor air quality.
(1) In addition to the minimum ventilation required by 3280.103 and
this paragraph, each manufacturer shall make available in its approved
designs and in the marketplace at least one of the following ventilation
options to improve indoor air quality:
(i) A passive ventilation system; or
(ii) A mechanical ventilation system; or
(iii) A combination of a passive and mechanical ventilation system;
or
(iv) A fresh-air inlet (not for combustion air) which draws its air
from the exterior of the home (not the underside). The inlet shall be
continuously connected from a forced-air furnace to the exterior and be
capable of providing at least 25 cubic feet per minute with the furnace
fan in normal operation. The air inlet shall be listed for use with the
installed forced-air furnace.
(2) The ventilation system(s) offered must improve the ventilation of
the occupied living space of the manufactured home.
(3) Ventilation improvement information sheet. Before any person
enters into an agreement to sell a manufactured home to the first
purchaser for purposes other than resale, the seller shall deliver a
ventilation improvement information sheet to each prospective purchaser.
The sheet shall include a description of the available ventilation
option(s) and, for mechanical systems, the rated capacity in air changes
per hour or cubic feet per minute; and
(4) The manufacturer shall provide, in its instructions, complete
information for the installation of each ventilation option(s) being
offered for use with its designs, including the ventilation system
manufacturer's instructions.
(Secs. 604 and 625 of the National Manufactured Housing Construction
and Safety Standards Act of 1974, 42 U.S.C. 5403 and 5424, and sec. 7(d)
of the Department of Housing and Urban Development Act, 42 U.S.C.
3535(d))
(49 FR 32012, Aug. 9, 1984)
24 CFR 3280.711 Instructions.
Operating instructions shall be provided with each appliance. These
instructions shall include directions and information covering the
proper use and efficient operation of the appliance and its proper
maintenance.
24 CFR 3280.712 Marking.
(a) Information on clearances, input rating, lighting and shutdown
shall be attached to the appliances with the same permanence as the
nameplate, and so located that it is easily readable when the appliance
is properly installed or shutdown for transporting of manufactured home.
(b) Each fuel-burning appliance shall bear permanent marking
designating the type(s) of fuel for which it is listed.
24 CFR 3280.713 Accessibility.
Every appliance shall be accessible for inspection, service, repair,
and replacement without removing permanent construction. Sufficient
room shall be available to enable the operator to observe the burner,
control, and ignition means while starting the appliance.
24 CFR 3280.714 Appliances, cooling.
(a) Every air conditioning unit or a combination air conditioning and
heating unit shall be listed or certified by a nationally recognized
testing agency for the application for which the unit is intended and
installed in accordance with the terms of its listing.
(1) Mechanical air conditioners shall be rated in accordance with the
Standard for Unitary Air Conditioning Equipment (ARI Standard 210-81,
With 84 Addendum) and certified by ARI or other nationally recognized
testing agency capable of providing follow-up service.
(i) Electric motor-driven unitary cooling systems with rated capacity
less than 65,000 BTU/Hr when rated at ARI Standard rating conditions in
ARI Standard 210-81, With 84 Addendum, shall show energy efficiency
ratio (EER) values not less than 7.2.
(ii) Heat pumps shall be certified to comply with all the
requirements of the Standard for Air-Source Unitary Heat Pump Equipment,
240-81 With 84 Addendum. Electric motor-driven vapor compression heat
pumps with supplemental electrical resistance heat shall be sized to
provide by compression at least 60 percent of the calculated annual
heating requirement for the manufactured home being served. A control
shall be provided and set to prevent operation of supplemental
electrical resistance heat at outdoor temperatures above 40 F, except
for defrost operation.
(iii) Electric motor-driven vapor compression heat pumps with
supplemental electric resistance heat conforming to ARI Standard 240-81
With 84 Addendum shall show coefficient of performance ratios not less
than shown below:
24 CFR 3280.714 COP
24 CFR 3280.714 Outdoor Air Temperature/COP
47 F 17 F
2.5 1.7 1.0
(2) Gas-fired absorption air conditioners shall be listed or
certified in accordance with ANSI Standard Z21.40.1-1981 ''Gas-Fired
Absorption Summer Air Conditioning Appliances'' with addenda 1a-1982,
and certified by AGA or another nationally recognized testing agency
capable of providing follow-up service.
(3) Direct refrigerating systems serving any air conditioning or
comfort-cooling system installed in a manufactured home shall employ a
type of refrigerant that ranks no lower than Group 5 in the
Underwriters' Laboratories, Inc. ''Classification of Comparative Life
Hazard of Various Chemicals.''
(b) Installation and instructions. (1) The installation of each
appliance shall conform to the terms of its listing as specified on the
appliance and in the manufacturer's instructions. The installer shall
include the manufacturer's installation instructions in the manufactured
home. Appliances shall be secured in place to avoid displacement and
movement from vibration and road shock.
(2) Operating instructions shall be provided with the appliance.
(c) Fuel-burning air conditioners shall also comply with 280.707.
(d) The appliance rating plate shall be so located that it is easily
readable when the appliance is properly installed.
(e) Every installed appliance shall be accessible for inspection,
service, repair and replacement without removing permanent construction.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4588, Feb. 12, 1987)
24 CFR 3280.715 Circulating air systems.
(a) Supply system. (1) Supply ducts and any dampers contained
therein shall be made from galvanized steel, tin-plated steel, or
aluminum, or shall be listed Class 0, Class 1, or Class 2 air ducts.
Class 2 air ducts shall be located at least 3 feet from the furnace
bonnet or plenum. A duct system integral with the structure shall be of
durable construction that can be demonstrated to be equally resistant to
fire and deterioration. Ducts constructed from sheet metal shall be in
accordance with the following table:
(2) Sizing of ducts for heating. (i) Ducts shall be so designed that
when a labeled forced-air furnace is installed and operated continuously
at its normal heating air circulating rate in the manufactured home,
with all registers in the full open position, the static pressure
measured in the casing shall not exceed 90% of that shown on the label
of the appliance. For upflow furnaces the static pressure shall be
taken in the duct plenum. For external heating or combination
heating/cooling appliances the static pressure shall be taken at the
point used by the agency listing or certifying the appliance.
(ii) When an evaporator-coil specifically designed for the particular
furnace is installed between the furnace and the duct plenum, the total
static pressure shall be measured downstream of the coil in accordance
with the appliance label and shall not exceed 90 percent of that shown
on the label of the appliance.
(iii) When any other listed air-cooler coil is installed between the
furnace and the duct plenum, the total static pressure shall be measured
between the furnace and the coil and it shall not exceed 90 percent of
that shown on the label of the furnace.
(iv) The minimum dimension of any branch duct shall be at least 1 1/2
inches, and of any main duct, 2 1/2 inches.
(3) Sizing of ducts. (i) The manufactured home manufacturer shall
certify the capacity of the air cooling supply duct system for the
maximum allowable output of ARI certified central air conditioning
systems. The certification shall be at operating static pressure of 0.3
inches of water or greater. (See 3280.511).
(ii) The refrigerated air cooling supply duct system including
registers must be capable of handling at least 300 cfm per 10,000 btuh
with a static pressure no greater than 0.3 inches of water when measured
at room temperature. In the case of application of external self
contained comfort cooling appliances or the cooling mode of combination
heating/cooling appliances, either the external ducts between the
appliance and the manufactured home supply system shall be considered
part of, and shall comply with the requirements for the refrigerated air
cooling supply duct system, or the connecting duct between the external
appliance and the mobile supply duct system shall be a part of the
listed appliance. The minimum dimension of any branch duct shall be at
least 1 1/2 inches, and of any main duct, 2 1/2 inches.
(4) Airtightness of supply duct systems. A supply duct system shall
be considered substantially airtight when the static pressure in the
duct system, with all registers sealed and with the furnace air
circulator at high speed, is at least 80 percent of the static pressure
measured in the furnace casing, with its outlets sealed and the furnace
air circulator operating at high speed. For the purpose of this
paragraph and 3280.715(b) pressures shall be measured with a water
manometer or equivalent device calibrated to read in increments not
greater than 1/10 inch water column.
(5) Expandable or multiple manufactured home connections. (i) An
expandable or multiple manufactured home may have ducts of the heating
system installed in the various units. The points of connection must be
so designed and constructed that when the manufactured home is fully
expanded or coupled, the resulting duct joint will conform to the
requirements of this part.
(ii) Installation instructions for supporting the crossover duct from
the manufactured home shall be provided for onsite installation. The
duct shall not be in contact with the ground.
(6) Air supply ducts shall be insulated with material having an
effective thermal resistance (R) of not less than 4.0 unless they are
within manufactured home insulation having a minimum effective value of
R-4.0 for floors or R-6.0 for ceilings.
(7) Supply and return ducts exposed directly to outside air, such as
under chassis crossover ducts or ducts connecting external heating,
cooling or combination heating/cooling appliances shall be insulated
with material having a minimum thermal resistance of R=4.0, with a
continuous vapor barrier having a perm rating of not more than 1 perm.
Where exposed underneath the manufactured home, all such ducts shall
comply with 3280.715(a)(5)(ii).
(b) Return air systems -- (1) Return air openings. Provisions shall
be made to permit the return of circulating air from all rooms and
living spaces, except toilet room(s), to the circulating air supply
inlet of the furnace.
(2) Duct material. Return ducts and any diverting dampers contained
therein shall be in accordance with the following:
(i) Portions of return ducts directly above the heating surfaces, or
closer than 2 feet from the outer jacket or casing of the furnace shall
be constructed of metal in accordance with 3280.715(a)(1) or shall be
listed Class 0 or Class 1 air ducts.
(ii) Return ducts, except as required by paragraph (a) of this
section, shall be constructed of one-inch (nominal) wood boards (flame
spread classification of not more than 200), other suitable material no
more flammable than one-inch board or in accordance with
3280.715(a)(1).
(iii) The interior of combustible ducts shall be lined with
noncombustible material at points where there might be danger from
incandescent particles dropped through the register or furnace such as
directly under floor registers and the bottom return.
(iv) Factory made air ducts used for connecting external heating,
cooling or combination heating/cooling appliances to the supply system
and return air system of a manufactured home shall be listed by a
nationally recognized testing agency. Ducts applied to external heating
appliances or combination heating/cooling appliances supply system
outlets shall be constructed of metal in accordance with 3280.715(a)(1)
or shall be listed Class 0 or Class 1 air ducts for those portions of
the duct closer than 2 feet from the outer casing of the appliance.
(v) Ducts applied to external appliances shall be resistant to
deteriorating environmental effects, including but not limited to
ultraviolet rays, cold weather, or moisture and shall be resistant to
insects and rodents.
(3) Sizing. The cross-sectional areas of the return air duct shall
not be less than 2 square inches for each 1,000 Btu per hour input
rating of the appliance. Dampers shall not be placed in a combination
fresh air intake and return air duct so arranged that the required
cross-sectional area will not be reduced at all possible positions of
the damper.
(4) Permanent uncloseable openings. Living areas not served by
return air ducts or closed off from the return opening of the furnace by
doors, sliding partitions, or other means shall be provided with
permanent uncloseable openings in the doors or separating partitions to
allow circulated air to return to the furnace. Such openings may be
grilled or louvered. The net free area of each opening shall be not
less than 1 square inch for every 5 square feet of total living area
closed off from the furnace by the door or partition serviced by that
opening. Undercutting doors connecting the closed-off space may be used
as a means of providing return air area. However, in the event that
doors are undercut, they shall be undercut a minimum of 2 inches and no
more than 2 1/2 inches, and no more than one-half of the free air area
so provided shall be counted as return air area.
(c) Joints and seams. Joints and seams of ducts shall be securely
fastened and made substantially airtight. Slip joints shall have a lap
of at least 1 inch and shall be individually fastened. Tape or caulking
compound may be used for sealing mechanically secure joints. Where
used, tape or caulking compound shall not be subject to deterioration
under long exposures to temperatures up to 200 F. and to conditions of
high humidity, excessive moisture, or mildew.
(d) Supports. Ducts shall be securely supported.
(e) Registers or grilles. Fittings connecting the registers or
grilles to the duct system shall be constructed of metal or material
which complies with the requirements of Class 1 or 2 ducts under UL 181
-- Sixth Edition -- 1984, Factory Made Air Ducts and Connectors. Air
supply terminal devices (registers) when installed in kitchens,
bedrooms, and bathrooms shall be equipped with adjustable closeable
dampers. Registers or grilles shall be constructed of metal or conform
with the following:
(1) Be made of a material classified 94V-0 or 94V-1 when tested as
described in Underwriters' Laboratories, Inc., Tests for Flammability of
Plastic Materials for Parts in Devices and Appliances, UL94 -- Third
Edition -- 1982, as amended through 1985.
(2) Floor registers or grilles shall resist without structural
failure a 200 lb. concentrated load on a 2-inch diameter disc applied
to the most critical area of the exposed face of the register or grille.
For this test the register or grille is to be at a temperature of not
less than 165 F and is to be supported in accordance with the
manufacturer's instructions.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4589, Feb. 12, 1987)
24 CFR 3280.715 Subpart I -- Electrical Systems
24 CFR 3280.801 Scope.
(a) Subpart I of this standard and part A of Article 550 of the
National Electrical Code (NFPA No. 70-1984) cover the electrical
conductors and equipment installed within or on manufactured homes and
the conductors that connect manufactured homes to a supply of
electricity.
(b) In addition to the requirements of this standard and Article 550
of the National Electrical Code (NFPA No. 70-1984), the applicable
portions of other Articles of the National Electrical Code shall be
followed covering electrical installations in manufactured homes.
Wherever the requirements of this standard differ from the National
Electrical Code, this standard shall apply.
(c) The provisions of this standard apply to manufactured homes
intended for connection to a wiring system nominally rated 115/230
volts, 3-wire AC, with grounded neutral.
(d) All electrical materials, devices, appliances, fittings and other
equipment shall be listed or labeled by a nationally recognized testing
agency and shall be connected in an approved manner when in service.
(e) Aluminium conductors are not acceptable in branch circuit wiring
in manufactured homes except as specifically approved by the Department
after examination of proposed systems for individual cases.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4589, Feb. 12, 1987)
24 CFR 3280.802 Definitions.
(a) The following definitions are applicable to subpart I only.
(1) Accessible (i) (As applied to equipment) means admitting close
approach because not guarded by locked doors, elevation, or other
effective means. (See readily accessible.)
(ii) (As applied to wiring methods) means capable of being removed or
exposed without damaging the manufactured home structure or finish, or
not permanently closed-in by the structure or finish of the manufactured
home (see concealed and exposed).
(2) Air conditioning or comfort cooling equipment means all of that
equipment intended or installed for the purpose of processing the
treatment of air so as to control simultaneously its temperature,
humidity, cleanliness, and distribution to meet the requirements of the
conditioned space.
(3)(i) Appliance means utilization equipment, generally other than
industrial, normally built in standardized sizes or types, which is
installed or connected as a unit to perform one or more functions, such
as clothes washing, air conditioning, food mixing, deep frying, etc.
(ii) Appliance, fixed means an appliance which is fastened or
otherwise secured at a specific location.
(iii) Appliance, portable means an appliance which is actually moved
or can easily be moved from one place to another in normal use. For the
purpose of this Standard, the following major appliances are considered
portable if cord-connected: refrigerators, clothes washers, dishwashers
without booster heaters, or other similar appliances.
(iv) Appliance, stationary means an appliance which is not easily
moved from one place to another in normal use.
(4) Attachment plug (plug cap) (cap) means a device which, by
insertion in a receptacle, establishes connection between the conductors
of the attached flexible cord and the conductors connected permanently
to the receptacle.
(5) Bonding means the permanent joining of metallic parts to form an
electrically conductive path which will assure electrical continuity and
the capacity to conduct safely any current likely to be imposed.
(6) Branch circuit (i) means the circuit conductors between the final
overcurrent device protecting the circuit and the outlet(s). A device
not approved for branch circuit protection, such as a thermal cutout or
motor overload protective device, is not considered as the overcurrent
device protecting the circuit.
(ii) Branch circuit -- appliance means a branch circuit supplying
energy to one or more outlets to which appliances are to be connected,
such circuits to have no permanently connected lighting fixtures not a
part of an appliance.
(iii) Branch circuit -- general purpose means a circuit that supplies
a number of outlets for lighting and appliances.
(iv) Branch circuit -- individual means a branch circuit that
supplies only one utilization equipment.
(7) Cabinet means an enclosure designed either for surface or flush
mounting, and provided with a frame, mat, or trim in which swinging
doors are hung.
(8) Circuit breaker means a device designed to open and close a
circuit by nonautomatic means, and to open the circuit automatically on
a predetermined overload of current without injury to itself when
properly applied within its rating.
(9) Concealed means rendered inaccessible by the structure or finish
of the manufactured home. Wires in concealed raceways are considered
concealed, even though they may become accessible by withdrawing them.
(See accessible (As applied to wiring methods))
(10) Connector, pressure (solderless) means a device that establishes
a connection between two or more conductors or between one or more
conductors and a terminal by means of mechanical pressure and without
the use of solder.
(11) Dead front (as applied to switches, circuit-breakers,
switchboards, and distribution panelboard) means so designed,
constructed, and installed that no current-carrying parts are normally
exposed on the front.
(12) Demand factor means the ratio of the maximum demand of a system,
or part of a system, to the total connected load of a system or the part
of the system under consideration.
(13) Device means a unit of an electrical system that is intended to
carry but not utilize electrical energy.
(14) Disconnecting means means a device, or group of devices, or
other means by which the conductors of a circuit can be disconnected
from their source of supply.
(15) Distribution panelboard means a single panel or a group of panel
units designed for assembly in the form of a single panel, including
buses, and with or without switches or automatic overcurrent protective
devices or both, for the control of light, heat, or power circuits of
small individual as well as aggregate capacity; designed to be placed
in a cabinet placed in or against a wall or partition and accessible
only from the front.
(16) Enclosed means surrounded by a case that will prevent a person
from accidentally contacting live parts.
(17) Equipment means a general term, including material, fittings,
devices, appliances, fixtures, apparatus, and the like used as a part
of, or in connection with, an electrical installation.
(18) Exposed (i) (As applied to live parts) means capable of being
inadvertently touched or approached nearer than a safe distance by a
person. It is applied to parts not suitably guarded, isolated, or
insulated. (See accessible and concealed.)
(ii) (As applied to wiring method) means on or attached to the
surface or behind panels designed to allow access. (See Accessible (As
Applied to Wiring Methods))
(19) Externally operable means capable of being operated without
exposing the operator to contact with live parts.
(20) Feeder assembly means the overhead or under-chassis feeder
conductors, including the grounding conductor, together with the
necessary fittings and equipment, or a power supply cord approved for
manufactured home use, designed for the purpose of delivering energy
from the source of electrical supply to the distribution panelboard
within the manufactured home.
(21) Fitting means an accessory, such as a locknut, bushing, or other
part of a wiring system, that is intended primarily to perform a
mechanical rather than an electrical function.
(22) Ground means a conducting connection, whether intentional or
accidental, between an electrical circuit or equipment and earth, or to
some conducting body that serves in place of the earth.
(23) Grounded means connected to earth or to some conducting body
that serves in place of the earth.
(24) Grounded conductor means a system or circuit conductor that is
intentionally grounded.
(25) Grounding conductor means a conductor used to connect equipment
or the grounded circuit of a wiring system to a grounding electrode or
electrodes.
(26) Guarded means covered, shielded, fenced, enclosed, or otherwise
protected by means of suitable covers, casings, barriers, rails,
screens, mats or platforms to remove the likelihood of approach or
contact by persons or objects to a point of danger.
(27) Isolated means not readily accessible to persons unless special
means for access are used.
(28) Laundry area means an area containing or designed to contain
either a laundry tray, clothes washer and/or clothes dryer.
(29) Lighting outlet means an outlet intended for the direct
connection of a lampholder, a lighting fixture, or a pendant cord
terminating in a lampholder.
(30) Manufactured home accessory building or structure means any
awning, cabana, ramada, storage cabinet, carport, fence, windbreak or
porch established for the use of the occupant of the manufactured home
upon a manufactured home lot.
(31) Manufactured home service equipment means the equipment
containing the disconnecting means, overcurrent protective devices, and
receptacles or other means for connecting a manufactured home feeder
assembly.
(32) Outlet means a point on the wiring system at which current is
taken to supply utilization equipment.
(33) Panelboard means a single panel or group of panel units designed
for assembly in the form of a single panel; including buses, automatic
overcurrent protective devices, and with or without switches for the
control of light, heat, or power circuits; designed to be placed in a
cabinet or cutout box placed in or against a wall or partition and
accessible only from the front.
(34) Raceway means any channel for holding wires, cables, or busbars
that is designed expressly for, and used solely for, this purpose.
Raceways may be of metal or insulating material, and the term includes
rigid metal conduit, rigid nonmetallic conduit, flexible metal conduit,
electrical metallic tubing, underfloor raceways, cellular concrete floor
raceways, cellular metal floor raceways, surface raceways, structural
raceways, wireways, and busways.
(35) Raintight means so constructed or protected that exposure to a
beating rain will not result in the entrance of water.
(36) Readily accessible means capable of being reached quickly for
operation, renewal, or inspection, without requiring those to whom ready
access is requisite to climb over or remove obstacles or to resort to
portable ladders, chairs, etc. (See Accessible.)
(37) Receptacle means a contact device installed at an outlet for the
connection of a single attachment plug. A single receptacle is a single
contact device with no other contact device on the same yoke. A
multiple receptacle is a single device containing two or more
receptacles.
(38) Receptacle outlet means an outlet where one or more receptacles
are installed.
(39) Utilization equipment means equipment which utilizes electric
energy for mechanical, chemical, heating, lighting, or similar purposes.
(40) Voltage (of a circuit) means the greatest root-mean-square
(effective) difference of potential between any two conductors of the
circuit concerned. Some systems, such as 3-phase 4-wire, single-phase
3-wire, and 3-wire direct-current may have various circuits of various
voltages.
(41) Weatherproof means so constructed or protected that exposure to
the weather will not interfere with successful operation. Rainproof,
raintight, or watertight equipment can fulfill the requirements for
weatherproof where varying weather conditions other than wetness, such
as snow, ice, dust, or temperature extremes, are not a factor.
24 CFR 3280.803 Power supply.
(a) The power supply to the manufactured home shall be a feeder
assembly consisting of not more than one listed 50 ampere manufactured
home power-supply cords, or a permanently installed circuit. A
manufactured home that is factory-equipped with gas or oil-fired central
heating equipment and cooking appliances shall be permitted to be
provided with a listed manufactured home power-supply cord rated 40
amperes.
(b) If the manufactured home has a power-supply cord, it shall be
permanently attached to the distribution panelboard or to a junction box
permanently connected to the distribution panelboard, with the free end
terminating in an attachment plug cap.
(c) Cords with adapters and pigtail ends, extension cords, and
similar items shall not be attached to, or shipped with, a manufactured
home.
(d) A listed clamp or the equivalent shall be provided at the
distribution panelboard knockout to afford strain relief for the cord to
prevent strain from being transmitted to the terminals when the
power-supply cord is handled in its intended manner.
(e) The cord shall be of an approved type with four conductors, one
of which shall be identified by a continuous green color or a continuous
green color with one or more yellow stripes for use as the grounding
conductor.
(f) The attachment plug cap shall be a 3-pole, 4-wire grounding type,
rated 50 amperes, 125/250 volts with a configuration as shown herein and
intended for use with the 50-ampere, 125/250 receptacle configuration
shown. It shall be molded of butyl rubber, neoprene, or other approved
materials which have been found suitable for the purpose, and shall be
molded to the flexible cord so that it adheres tightly to the cord at
the point where the cord enters the attachment-plug cap. If a
right-angle cap is used, the configuration shall be so oriented that the
grounding member is farthest from the cord.
(g) The overall length of a power-supply cord, measured from the end
of the cord, including bared leads, to the face of the attachment-plug
cap shall not be less than 21 feet and shall not exceed 36 1/2 feet.
The length of cord from the face of the attachment-plug cap to the point
where the cord enters the manufactured home shall not be less than 20
feet.
50-ampere 125/250 volt receptacle and attachment-plug-cap
configurations, 3 pole, 4-wire grounding types used for manufactured
home supply cords and manufactured home parks. Complete details of the
50-ampere cap and receptacle can be found in the American National
Standard Dimensions of Caps, Plugs and Receptacles, Grounding Type (ANSI
C73.17 -- 1972).
(h) The power supply cord shall bear the following marking: ''For
use with manufactured homes -- 40 amperes'' or ''For use with
manufactured homes -- 50 amperes.''
(i) Where the cord passes through walls or floors, it shall be
protected by means of conduit and bushings or equivalent. The cord may
be installed within the manufactured home walls, provided a continuous
raceway is installed from the branch-circuit panelboard to the underside
of the manufactured home floor. The raceway may be rigid conduit,
electrical metallic tubing or polyethylene (PE), poly-vinylchloride
(PVC) or acrylonitrile-butadiene-styrene (ABS) plastic tubing having a
minimum wall thickness of nominal 1/8 inch.
(j) Permanent provisions shall be made for the protection of the
attachment-plug cap of the power supply cord and any connector cord
assembly or receptacle against corrosion and mechanical damage if such
devices are in an exterior location while the manufactured home is in
transit.
(k) Where the calculated load exceeds 50 amperes or where a permanent
feeder is used, the supply shall be by means of:
(1) One mast weatherhead installation installed in accordance with
Article 230 of the National Electrical Code NFPA No. 70-1984 containing
four continuous insulated, color-coded, feeder conductors, one of which
shall be an equipment grounding conductor; or
(2) An approved raceway from the disconnecting means in the
manufactured home to the underside of the manufactured home with
provisions for the attachment of a suitable junction box or fitting to
the raceway on the underside of the manufactured home. The manufacturer
shall provide in his written installation instructions, the proper
feeder conductor sizes for the raceway and the size of the junction box
to be used; or
(3) Service equipment installed on the manufactured home in
accordance with Article 230 of the National Electrical Code NFPA No.
70-1984; and
(i) The installation shall be completed by the manufacturer except
for the service connections, the meter and the grounding electrode
conductor;
(ii) Exterior equipment, or the enclosure in which it is installed
shall be weatherproof and installed in accordance with Article 373-2 of
the National Electrical Code NFPA No. 70-1984. Conductors shall be
suitable for use in wet locations;
(iii) The neutral conductor shall be connected to the system
grounding conductor on the supply side of the main disconnect in
accordance with Articles 250-23, 25, and 53 of NFPA No. 70-1984;
(iv) The manufacturer shall include in its written installation
instructions one method of grounding the service equipment at the
installation site;
(v) The minimum size grounding electrode conductor shall be specified
in the instructions; and
(vi) A red ''Warning'' label shall be mounted on or adjacent to the
service equipment. The label shall state: Warning -- do not provide
electrical power until the grounding electrode is installed and
connected (see installation instructions).
(l) Where the calculated load exceeds 50 amperes or where a permanent
feeder is used, the supply shall be by means of:
(1) One mast weatherhead installation installed in accordance with
Article 230 of the National Electrical Code NFPA No. 70 -- 1975
containing four continuous insulated, color-coded, feeder conductors,
one of which shall be an equipment grounding conductor; or,
(2) An approved raceway from the disconnecting means in the
manufactured home to the underside of the manufactured home with
provisions for the attachment of a suitable junction box or fitting to
the raceway on the underside of the manufactured home. The manufacturer
shall provide in his written installation instructions, the proper
feeder conductor sizes for the raceway and the size of the junction box
to be used.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4589, Feb. 12, 1987; 52 FR 47553, Dec. 15,
1987)
24 CFR 3280.804 Disconnecting means and branch-circuit protective
equipment.
(a) The branch-circuit equipment shall be permitted to be combined
with the disconnecting means as a single assembly. Such a combination
shall be permitted to be designated as a distribution panelboard. If a
fused distribution panelboard is used, the maximum fuse size of the
mains shall be plainly marked with lettering at least 1/4-inch high and
visible when fuses are changed. See Section 110-22 of the National
Electrical Code (NFPA No. 70 -- 1975) concerning identification of each
disconnecting means and each service, feeder, or branch circuit at the
point where it originated and the type marking needed.
(b) Plug fuses and fuseholders shall be tamper-resistant, Type ''S,''
enclosed in dead-front fuse panelboards. Electrical distribution panels
containing circuit breakers shall also be dead-front type.
(c) Disconnecting means. A single disconnecting means shall be
provided in each manufactured home consisting of a circuit breaker, or a
switch and fuses and their accessories installed in a readily accessible
location near the point of entrance of the supply cord or conductors
into the manufactured home. The main circuit breakers or fuses shall be
plainly marked ''Main.'' This equipment shall contain a solderless type
of grounding connector or bar for the purposes of grounding with
sufficient terminals for all grounding conductors. The neutral bar
termination of the grounded circuit conductors shall be insulated.
(d) The disconnecting equipment shall have a rating suitable for the
connected load. The distribution equipment, either circuit breaker or
fused type, shall be located a minimum of 24 inches from the bottom of
such equipment to the floor level of the manufactured home.
(e) A distribution panelboard employing a main circuit breaker shall
be rated 50 amperes and employ a 2-pole circuit breaker rated 40 amperes
for a 40-ampere supply cord, or 50 amperes for a 50-ampere supply cord.
A distribution panelboard employing a disconnect switch and fuses shall
be rated 60 amperes and shall employ a single 2-pole, 60-ampere
fuseholder with 40- or 50-ampere main fuses for 40- or 50-ampere supply
cords, respectively. The outside of the distribution panelboard shall
be plainly marked with the fuse size.
(f) The distribution panelboard shall not be located in a bathroom,
or in any other inaccessible location, but shall be permitted just
inside a closet entry if the location is such that a clear space of 6
inches to easily ignitable materials is maintained in front of the
distribution panelboard, and the distribution panelboard door can be
extended to its full open position (at least 90 degrees). A clear
working space at least 30 inches wide and 30 inches in front of the
distribution panelboard shall be provided. This space shall extend from
floor to the top of the distribution panelboard.
(g) Branch-circuit distribution equipment shall be installed in each
manufactured home and shall include overcurrent protection for each
branch circuit consisting of either circuit breakers or fuses.
(1) The branch circuit overcurrent devices shall be rated: (i) Not
more than the circuit conductors; and (ii) not more than 150 percent of
the rating of a single appliance rated 10 amperes or more which is
supplied by an individual branch circuit; but (iii) not more than the
fuse size marked on the air conditioner or other motor-operated
appliance.
(h) A 15-ampere multiple receptacle shall be acceptable when
connected to a 20-ampere laundry circuit.
(i) When circuit breakers are provided for branch-circuit protection,
230-volt circuits shall be protected by 2-pole common or companion trip,
or handle-tied paired circuit breakers.
(j) A 3 inch by 1 3/4 inch minimum size tag made of etched,
metal-stamped or embossed brass, stainless steel, anodized or alclad
aluminum not less than 0.020 inch thick, or other approved material
(e.g., 0.005 inch plastic laminates) shall be permanently affixed on the
outside adjacent to the feeder assembly entrance and shall read: This
connection for 120/240 Volt, 3-Pole, 4-Wire, 60 ------ Hertz Ampere
Supply. The correct ampere rating shall be marked on the blank space.
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 961, Jan. 4, 1977.
Redesignated at 44 FR 20679, Apr. 6, 1979 and amended at 52 FR 4589,
Feb. 12, 1987)
24 CFR 3280.805 Branch circuits required.
(a) The number of branch circuits required shall be determined in
accordance with the following:
(1) Lighting. Based on 3 watts per square foot times outside
dimensions of the manufactured home (coupler excluded) divided by 115
volts times amperage to determine number of 15- or 20-ampere lighting
area circuits, e.g.,
(3 Length Width)/(115 15 (or 20))=No. of 15 (or 20) ampere circuits
(2) Portable appliances. For the small appliance load in kitchen,
pantry, family room, dining room and breakfast rooms of manufactured
homes, two or more 20-ampere appliance branch circuits, in addition to
the branch circuit specified in 3280.805(a)(1), shall be provided for
all receptacle outlets in these rooms, and such circuits shall have no
other outlets. Receptacle outlets supplied by at least two appliance
receptacle branch circuits shall be installed in the kitchen.
(3) General appliances (Including furnace, water heater, range, and
central or room air conditioner, etc.). There shall be one or more
circuits of adequate rating in accordance with the following:
(i) Ampere rating of fixed appliances not over 50 percent of circuit
rating if lighting outlets (receptacles, other than kitchen, dining
area, and laundry, considered as lighting outlets) are on same circuit;
(ii) For fixed appliances on a circuit without lighting outlets, the
sum of rated amperes shall not exceed the branch-circuit rating for
other than motor loads of 80 percent of the branch-circuit rating for
air conditioning or other motor loads;
(iii) The rating of a single portable appliance on a circuit having
no other outlets shall not exceed 80 percent of the circuit rating;
(iv) The rating of range branch circuit shall be based on the range
demand as specified for ranges in 3280.811, Item B(5) of Method 1. For
central air conditioning, see Article 440 of the National Electrical
Code (NFPA No. 70-1984).
(v) Where laundry facilities are provided in a manufactured home, a
20-ampere branch circuit shall be provided within 6 feet of the intended
location of the appliance. See 3280.804(j).
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4589, Feb. 12, 1987)
24 CFR 3280.806 Receptacle outlets.
(a) All receptacle outlets shall be:
(1) Of grounding type;
(2) Installed according to Section 210-7 of the National Electrical
Code (NFPA No. 70-1984); and
(3) Except when supplying specific appliances, be parallel-blade,
15-ampere, 125-volt, either single or duplex.
(b) All 120 volt single phase, 15 and 20 ampere receptacle outlets,
including receptacles in light fixtures, installed outdoors and in
bathrooms shall have ground-fault circuit protection for personnel.
Feeders supplying branch circuits may be protected by a ground-fault
circuit-interrupter in lieu of the provision for such interrupters
specified above.
(c) There shall be an outlet of the grounding type for each
cord-connected fixed appliance installed.
(d) Receptacle outlets required. Except in the bath and hall areas,
receptacle outlets shall be installed at wall spaces 2 feet wide or
more, so that no point along the floor line is more than 6 feet,
measured horizontally, from an outlet in that space. In addition, a
receptacle outlet shall be installed:
(1) Over or adjacent to counter tops in the kitchen (at least one on
each side of the sink if counter tops are on each side and 12 inches or
over in width).
(2) Adjacent to the refrigerator and free-standing gas-range space.
(3) At counter top spaces for built-in vanities.
(4) At counter top spaces under wall-mounted cabinets.
(5) In the wall, at the nearest point where a bar type counter
attaches to the wall.
(6) In the wall at the nearest point where a fixed room divider
attaches to the wall.
(7) In laundry area.
(8) At least one receptacle outlet shall be installed outdoors.
Receptacle outlets located in compartments accessible from outdoors
shall be considered outdoor receptacles and shall be protected as
required in 3280.806(b).
(9) Adjacent to bathroom basins or integral with the light fixture
over the bathroom basin.
(10) Receptacle outlets are not required in the following locations:
(i) wall space occupied by built-in kitchen or wardrobe cabinets, (ii)
wall space behind doors which may be opened fully against a wall
surface, (iii) room dividers of the lattice type, less than 8 feet long,
not solid within 6 inches of the floor, (iv) wall space afforded by bar
type counters.
(e) Receptacle outlets shall not be installed in or within reach (30
inches) of a shower or bathtub space.
(f) Receptacle outlets shall not be installed above electric
baseboard heaters.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4589, Feb. 12, 1987; 52 FR 47553, Dec. 15,
1987)
24 CFR 3280.807 Fixtures and appliances.
(a) Electrical materials, devices, appliances, fittings, and other
equipment installed, intended for use in, or attached to the
manufactured home shall be approved for the application and shall be
connected in an approved manner when in service. Facilities shall be
provided to securely fasten appliances when the manufactured home is in
transit. (See 3280.809.)
(b) Specifically listed pendant-type fixtures or pendant cords shall
be permitted in manufactured homes.
(c) If a lighting fixture is provided over a bathtub or in a shower
stall, it shall be of the enclosed and gasketed type, listed for wet
locations.
(d) The switch for shower lighting fixtures and exhaust fans located
over a tub or in a shower stall shall be located outside the tub shower
space. (See 3280.806(e).)
(e) Any combustible wall or ceiling finish exposed between the edge
of a fixture, canopy, or pan and an outlet box shall be covered with
noncombustible material.
(f) Every appliance shall be accessible for inspection, service,
repair, or replacement without removal of permanent construction.
(g) The National Electric Code (NFPA No. 70-1984), incorporated by
reference in subpart I of this part, is modified for purposes of this
subpart in the following respects:
(1) In lieu of the definitions of the following terms that appear in
paragraph 680-4, the following definitions will be used:
(i) Hydromassage bathtub. A permanently installed bathtub equipped
with a recirculating piping system, pump and associated equipment. It
is designed so it can accept, circulate, and discharge water upon each
use.
(ii) Spa or hot tub. A hydromassage pool or tub for recreational or
therapeutic use, not located in health care facilities, designed for
immersion of users and usually having a filter, heater, and motor-driven
blower. It may be installed indoors or outdoors, on the ground or
supporting structure, or in the ground or supporting structure.
(2) Hydromassage bathtubs. (i) Hydromassage bathtubs and their
associated electric components shall be supplied by a circuit protected
by a ground-fault circuit-interrupter.
(ii) Other electric equipment. Lighting fixtures, switches,
receptacles, and other electric equipment located in the same room, and
not directly associated with a hydromassage bathtub, shall be installed
in accordance with the requirements of chapters 1 through 4 in this code
covering the installation of that equipment in bathrooms.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 35543, Sept. 22, 1987)
24 CFR 3280.808 Wiring methods and materials.
(a) Except as specifically limited in this part, the wiring methods
and materials specified in the National Electrical Code (NFPA No.
70-1984) shall be used in manufactured homes.
(b) Nonmetallic outlet boxes shall be acceptable only with
nonmetallic cable.
(c) Nonmetallic cable located 15 inches or less above the floor, if
exposed, shall be protected from physical damage by covering boards,
guard strips, or conduit. Cable likely to be damaged by stowage shall
be so protected in all cases.
(d) Nonmetallic sheathed cable shall be secured by staples, straps,
or similar fittings so designed and installed as not to injure any
cable. Cable shall be secured in place at intervals not exceeding 4 1/2
feet and within 12 inches from every cabinet, box or fitting.
(e) Metal-clad and nonmetallic cables shall be permitted to pass
through the centers of the wide side of 2-inch by 4-inch studs.
However, they shall be protected where they pass through 2-inch by
2-inch studs or at other studs or frames where the cable or armor would
be less than 1 1/2 inches from the inside or outside surface of the
studs when the wall covering materials are in contact with the studs.
Steel plates on each side of the cable, or a tube, with not less than
No. 16 MSG wall thickness shall be required to protect the cable.
These plates or tubes shall be securely held in place.
(f) Where metallic faceplates are used they shall be effectively
grounded.
(g) If the range, clothes dryer, or similar appliance is connected by
metalclad cable or flexible conduit, a length of not less than three
feet of free cable or conduit shall be provided to permit moving the
appliance. Type NM or Type SE cable shall not be used to connect a
range or a dryer. This shall not prohibit the use of Type NM or Type SE
cable between the branch circuit overcurrent protective device and a
junction box or range or dryer receptacle.
(h) Threaded rigid metal conduit shall be provided with a locknut
inside and outside the box, and a conduit bushing shall be used on the
inside. Rigid nonmetallic conduit shall be permitted. Inside ends of
the conduit shall be reamed.
(i) Switches shall be rated as follows:
(1) For lighting circuits, switches, shall have a 10-ampere, 120-125
volt rating; or higher if needed for the connected load.
(2) For motors or other loads, switches shall have ampere or
horsepower ratings, or both, adequate for loads controlled. (An ''AC
general-use'' snap switch shall be permitted to control a motor 2
horsepower or less with full-load current not over 80 percent of the
switch ampere rating).
(j) At least 4 inches of free conductor shall be left at each outlet
box except where conductors are intended to loop without joints.
(k) When outdoor or under-chassis line-voltage wiring is exposed to
moisture or physical damage, it shall be protected by rigid metal
conduit. The conductors shall be suitable for wet locations.
Electrical metallic tubing may be used when closely routed against
frames, and equipment enclosures.
(l) The cables or conductors shall be Type NMC, TW, or equivalent.
(m) Outlet boxes of dimensions less than those required in Table
370-6(a) of the National Electrical Code (NFPA No. 70-1984) shall be
permitted provided the box has been tested and approved for the purpose.
(n) Boxes, fittings, and cabinets shall be securely fastened in
place, and shall be supported from a structural member of the home,
either directly or by using a substantial brace. Snap-in type boxes
provided with special wall or ceiling brackets that securely fasten
boxes in walls or ceilings shall be permitted.
(o) Outlet boxes shall fit closely to openings in combustible walls
and ceilings, and they shall be flush with such surfaces.
(p) Appliances having branch-circuit terminal connections which
operate at temperatures higher than 60 C (140 F) shall have circuit
conductors as described in paragraphs (p) (1) and (2) of this section:
(1) Branch-circuit conductors having an insulation suitable for the
temperature encountered shall be permitted to run directly to the
appliance.
(2) Conductors having an insulation suitable for the temperature
encountered shall be run from the appliance terminal connections to a
readily accessible outlet box placed at least one foot from the
appliance. These conductors shall be in a suitable raceway which shall
extend for at least 4 feet.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4589, Feb. 12, 1987)
24 CFR 3280.809 Grounding.
(a) General. Grounding of both electrical and nonelectrical metal
parts in a manufactured home shall be through connection to a grounding
bus in the manufactured home distribution panelboard. The grounding bus
shall be grounded through the green-colored conductor in the supply cord
or the feeder wiring to the service ground in the service-entrance
equipment located adjacent to the manufactured home location. Neither
the frame of the manufactured home nor the frame of any appliance shall
be connected to the neutral conductor in the manufactured home.
(b) Insulated neutral. (1) The grounded circuit conductor (neutral)
shall be insulated from the grounding conductors and from equipment
enclosures and other grounded parts. The grounded (neutral) circuit
terminals in the distribution panelboard and in ranges, clothes dryers,
counter-mounted cooking units, and wall-mounted ovens shall be insulated
from the equipment enclosure. Bonding screws, straps, or buses in the
distribution panelboard or in appliances shall be removed and discarded.
(2) Connection of ranges and clothes dryers with 115/230-volt, 3-wire
ratings shall be made with 4-conductor cord and 3-pole, 4-wire grounding
type plugs, or by Type AC metal-clad cable or conductors enclosed in
flexible metal conduit. For 115-volt rated devices, a 3-conductor cord
and a 2-pole, 3-wire grounding-type plug shall be permitted.
(c) Equipment grounding means. (1) The green-colored grounding wire
in the supply cord or permanent feeder wiring shall be connected to the
grounding bus in the distribution panelboard or disconnecting means.
(2) In the electrical system, all exposed metal parts, enclosures,
frames, lamp fixture canopies, etc., shall be effectively bonded to the
grounding terminal or enclosure of the distribution panelboard.
(3) Cord-connected appliances, such as washing machines, clothes
dryers, refrigerators, and the electrical system of gas ranges, etc.,
shall be grounded by means of an approved cord with grounding conductor
and grounding-type attachment plug.
(d) Bonding of noncurrent-carrying metal parts. (1) All exposed
noncurrent-carrying metal parts that may become energized shall be
effectively bonded to the grounding terminal or enclosure of the
distribution panelboard. A bonding conductor shall be connected between
each distribution panelboard and an accessible terminal on the chassis.
(2) Grounding terminals shall be of the solderless type and approved
as pressure-terminal connectors recognized for the wire size used. Star
washers or other approved paint-penetrating fitting shall be used to
bond terminals to chassis or other coated areas. The bonding conductor
shall be solid or stranded, insulated or bare and shall be No. 8 copper
minimum, or equal. The bonding conductor shall be routed so as not to
be exposed to physical damage. Protection can be afforded by the
configuration of the chassis.
(3) Metallic gas, water and waste pipes and metallic air-circulating
ducts shall be considered bonded if they are connected to the terminal
on the chassis (see 3280.809) by clamps, solderless connectors, or by
suitable grounding-type straps.
(4) Any metallic roof and exterior covering shall be considered
bonded if (i) the metal panels overlap one another and are securely
attached to the wood or metal frame parts by metallic fasteners, and
(ii) if the lower panel of the metallic exterior covering is secured by
metallic fasteners at a cross member of the chassis by two metal straps
per manufactured home unit or section at opposite ends. The bonding
strap material shall be a minimum of 4 inches in width of material
equivalent to the skin or a material of equal or better electrical
conductivity. The straps shall be fastened with paint-penetrating
fittings (such as screws and star washers or equivalent).
24 CFR 3280.810 Electrical testing.
(a) Dielectric strength test. The wiring of each manufactured home
shall be subjected to a 1-minute, 900-volt dielectric strength test
(with all switches closed) between live parts (including neutral) and
the manufactured home ground. Alternatively, the test may be performed
at 1,080 volts for 1 second. This test shall be performed after branch
circuits are complete and after fixtures or appliances are installed.
Fixtures or appliances which are listed shall not be required to
withstand the dielectric strength test.
(b) Each manufactured home shall be subjected to: (1) A continuity
test to assure that metallic parts are properly bonded; (2) operational
test to demonstrate that all equipment is connected and in working
order; and (3) polarity checks to determine that connections have been
properly made.
24 CFR 3280.811 Calculations.
(a) The following method shall be employed in computing the
supply-cord and distribution-panelboard load for each feeder assembly
for each manufactured home and shall be based on a 3-wire, 115/230-volt
supply with 115-volt loads balanced between the two legs of the 3-wire
system. The total load for determining power supply by this method is
the summation of:
(1) Lighting and small appliance load as calculated below:
(i) Lighting watts: Length times width of manufactured home (outside
dimensions exclusive of coupler) times 3 watts per square foot; e.g.
Length width 3=lighting watts.
(ii) Small appliance watts: Number of circuits times 1,500 watts for
each 20-ampere appliance receptacle circuit (See definition of
''Appliance Portable'' with note): e.g. Number of circuits
1,500=small appliance watts.
(iii) Total watts: Lighting watts plus small appliance=total watts.
(iv) First 3,000 total watts at 100 percent plus remainder at 35
percent=watts to be divided by 230 volts to obtain current (amperes) per
leg.
(2) Nameplate amperes for motors and heater loads (exhaust fans, air
conditioners, electric, gas, or oil heating). Omit smaller of air
conditioning and heating except include blower motor if used as air
conditioner evaporator motor. When an air conditioner is not installed
and a 40-ampere power supply cord is provided, allow 15 amperes per leg
for air conditioning.
(3) 25 percent of current of largest motor in paragraph (a)(2) of
this section.
(4) Total of nameplate amperes for: Disposal, dishwasher, water
heater, clothes dryer, wall-mounted oven, cooking units. Where number
of these appliances exceeds three, use 75 percent of total.
(5) Derive amperes for free-standing range (as distinguished from
separate ovens and cooking units) by dividing values below by 230 volts.
(6) If outlets or circuits are provided for other than
factory-installed appliances include the anticipated load. The
following example is given to illustrate the application of this Method
of Calculation:
Example. A manufactured home is 70 10 feet and has two portable
appliance circuits, a 1000 watt 230 volt heater, a 200 watt 115 volt
exhaust fan, a 400 watt 115 volt dishwasher and a 7000 watt electric
range.
1,000 W (heater) 230=4.4A.
200 W (fan) 115=1.7A.
400 W (dishwaster) 115=3.5A.
7,000 W (range) 0.8 230=24.0 A.
(b) The following is an optional method of calculation for lighting
and appliance loads for manufactured homes served by single 3-wire
115/230 volt set of feeder conductors with an ampacity of 100 or
greater. The total load for determining the feeder ampacity may be
computed in accordance with the following table instead of the method
previously specified. Feeder conductors whose demand load is determined
by this optional calculation shall be permitted to have the neutral load
determined by section 220-22 of the National Electrical Code (NFPA No.
70-1984). The loads identified in the table as ''other load'' and as
''Remainder of other load'' shall include the following:
(1) 1500 watts for each 2-wire, 20-ampere small appliance branch
circuit and each laundry branch circuit specified.
(2) 3 watts per square foot for general lighting and general-use
receptacles.
(3) The nameplate rating of all fixed appliances, ranges,
wall-mounted ovens, counter-mounted cooking units, and including 4 or
more separately controlled space heating loads.
(4) The nameplate ampere or kVA rating of all motors and of all
low-power-factor loads.
(5) The largest of the following: (i) Air conditioning load; (ii)
the 65 percent diversified demand of the central electric space heating
load; (iii) the 65 percent diversified demand of the load of less than
four separately-controlled electric space heating units; (iv) the
connected load of four or more separately-controlled electric space
heating units.
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979 and amended at 52 FR 4590, Feb. 12, 1987)
24 CFR 3280.812 Wiring of expandable units and dual units.
(a) Expandable or multiple unit manufactured homes shall use
fixed-type wiring methods and materials for connecting such units to
each other.
(b) Expandable or multiple unit manufactured homes not having
permanently installed feeders and which are to be moved from one
location to another, shall be permitted to have disconnecting means with
branch circuit protective equipment in each unit when so located that
after assembly or joining together of units the requirements of
3280.803 will be met.
24 CFR 3280.813 Outdoor outlets, fixtures, air-conditioning equipment,
etc.
(a) Outdoor fixtures and equipment shall be listed or approved for
outdoor use. Outdoor receptacles or convenience outlets shall be of a
gasketed-cover type.
(b) A manufactured home provided with an outlet designed to energize
heating and/or air conditioning equipment located outside the
manufactured home, shall have permanently affixed, adjacent to the
outlet, a metal tag which reads:
This Connection Is for Air Conditioning Equipment Rated at Not More
Than ------ Amperes, at ------ Volts, 60 Hertz. A disconnect shall be
located within sight of the appliance.
The correct voltage and ampere ratings shall be given. The tag shall
not be less than 0.020 inch, etched Brass, stainless steel, anodized or
alclad aluminum or equivalent or other approved material (e.g., .005
inch plastic laminates). The tag shall be not less than 3 inches by 1
3/4 inches minimum size.
(40 FR 58752, Dec. 18, 1975, as amended at 42 FR 961, Jan. 4, 1977.
Redesignated at 44 FR 20679, Apr. 6, 1979)
24 CFR 3280.814 Painting of wiring.
During painting or staining of the manufactured home, it shall be
permitted to paint metal raceways (except where grounding continuity
would be reduced) or the sheath of the nonmetallic cable. Some
arrangement, however, shall be made so that no paint shall be applied to
the individual wires, as the color coding may be obliterated by the
paint.
24 CFR 3280.815 Polarization.
(a) The identified (white) conductor shall be employed for grounding
circuit conductors only and shall be connected to the identified (white)
terminal or lead on receptacle outlets and fixtures. It shall be the
unswitched wire in switched circuits, except that a cable containing an
identified conductor (white) shall be permitted for single-pole
three-way or four-way switch loops where the connections are made so
that the unidentified conductor is the return conductor from the switch
to the outlet. Painting of the terminal end of the wire shall not be
required.
(b) If the identified (white) conductor of a cable is used for other
than grounded conductors or for other than switch loops as explained
above (for a 230-volt circuit for example), the conductor shall be
finished in a color other than white at each outlet where the conductors
are visible and accessible.
(c) Green-colored wires or green with yellow stripe shall be used for
grounding conductors only.
24 CFR 3280.816 Examination of equipment for safety.
The examination or inspection of equipment for safety, according to
this standard, shall be conducted under uniform conditions and by
organizations properly equipped and qualified for experimental testing,
inspections of the run of goods at factories, and service-value
determinations through field examinations.
24 CFR 3280.816 Subpart J -- Transportation
24 CFR 3280.901 Scope.
Subpart J of this standard covers the general requirement for
designing the structure of the manufactured home to fully withstand the
adverse effects of transportation shock and vibration without
degradation of the integrated structure or of its component parts and
the specific requirements pertaining to the transportation system and
its relationship to the structure.
24 CFR 3280.902 Definitions.
(a) Chassis means the entire transportation system comprising the
following subsystems: drawbar and coupling mechanism, frame, running
gear assembly, and lights.
(b) Drawbar and coupling mechanism means the rigid assembly, (usually
an A frame) upon which is mounted a coupling mechanism, which connects
the manufactured home's frame to the towing vehicle.
(c) Frame means the fabricated rigid substructure which provides
considerable support to the affixed manufactured home structure both
during transport and on-site; and also provides a platform for
securement of the running gear assembly, the drawbar and coupling
mechanism.
(d) Running gear assembly means the subsystem consisting of
suspension springs, axles, bearings, wheels, hubs, tires, and brakes,
with their related hardware.
(e) Lights means those safety lights and associated wiring required
by applicable U.S. Department of Transportation regulations.
(f) Transportation system, (Same as chassis, above).
(g) Highway, includes all roads and streets to be legally used in
transporting the manufactured home.
(Sec. 625 of the National Housing Manufactured Housing Construction
and Safety Standards Act of 1974, 42 U.S.C. 5424; sec. 7(d),
Department of Housing and Urban Development Act, 42 U.S.C. 3535(o))
(40 FR 58752, Dec. 18, 1975. Redesignated at 44 FR 20679, Apr. 6,
1979, and amended at 47 FR 28093, June 29, 1982)
24 CFR 3280.903 General requirements for designing the structure to
withstand transportation shock and vibration.
(a) The cumulative effect of highway transportation shock and
vibration upon a manufactured home structure may result in incremental
degradation of its designed performance in terms of providing a safe,
healthy and durable dwelling. Therefore, the manufactured home shall be
designed, in terms of its structural, plumbing, mechanical and
electrical systems, to fully withstand such transportation forces during
its intended life. (See 3280.303(c) and 3280.305(a)).
(b) Particular attention shall be given to maintaining watertight
integrity and conserving energy by assuring that structural components
in the roof and walls (and their interfaces with vents, windows, doors,
etc.) are capable of resisting highway shock and vibration forces during
primary and subsequent secondary transportation moves.
(c) In place of an engineering analysis, either of the following may
be accepted: (1) Documented technical data of suitable highway tests
which were conducted to simulate transportation loads and conditions;
or (2) acceptable documented evidence of actual transportation
experience which meets the intent of this subpart.
24 CFR 3280.904 Specific requirements for designing the transportation
system.
(a) General. The entire system (frame, drawbar and coupling
mechanism, running gear assembly, and lights) shall be designed and
constructed as an integrated, balanced and durable unit which is safe
and suitable for its specified use during the intended life of the
manufactured home. In operation, the transportation system (supporting
the manufactured home structure and its contents) shall effectively
respond to the control of the braking, while traveling at applicable
towing vehicle in terms of tracking and highway speeds and in normal
highway traffic conditions.
(Note: While the majority of manufactured homes utilize a fabricated
steel frame assembly, upon which the manufactured home structure is
constructed, it is not the intent of this standard to limit innovation.
Therefore, other concepts, such as integrating the frame function into
the manufactured home structure, are acceptable provided that such
design meets the intent and requirements of this part).
(b) Specific requirements -- (1) Drawbar. The drawbar shall be
constructed of sufficient strength, rigidity and durability to safely
withstand those dynamic forces experienced during highway
transportation. It shall be securely fastened to the manufactured home
frame by either a continuous weld or by bolting.
(2) Coupling mechanism. The coupling mechanism (which is usually of
the socket type) shall be securely fastened to the drawbar in such a
manner as to assure safe and effective transfer of the maximum loads,
including dynamic loads, between the manufactured home structure and the
hitch-assembly of the towing vehicle. The coupling shall be equipped
with a manually operated mechanism so adapted as to prevent
disengagement of the unit while in operation. The coupling shall be so
designed that it can be disconnected regardless of the angle of the
manufactured home to the towing vehicle. With the manufactured home
parked on level ground, the center of the socket of the coupler shall
not be less than 20 inches nor more than 26 inches from ground level.
(3) Chassis. The chassis, in conjunction with the manufactured home
structure, shall be designed and constructed to effectively sustain the
designed loads consisting of the dead load plus a minimum of 3 pounds
per square foot floor load, (example: free-standing range,
refrigerator, and loose furniture) and the superimposed dynamic load
resulting from highway movement but shall not be required to exceed
twice the dead load. The integrated design shall be capable of insuring
rigidity and structural integrity of the complete manufactured home
structure and to insure against deformation of structural or finish
members during the intended life of the home.
(4) Running gear assembly. (i) The running gear assembly, as part of
the chassis, shall be designed to perform, as a balanced system, in
order to effectively sustain the designed loads set forth in
3280.904(b)(3) and to provide for durable dependable safe mobility of
the manufactured home. It shall be designed to accept shock and
vibration, both from the highway and the towing vehicle and effectively
dampen these forces so as to protect the manufactured home structure
from damage and fatigue. Its components shall be designed to facilitate
routine maintenance, inspection and replacement.
(ii) Location of the running gear assembly shall be determined by
documented engineering analysis, taking into account the gross weight
(including all contents), total length of the manufactured home, the
necessary coupling hitch weight, span distance, and turning radius. The
coupling weight shall be not less than 12 percent nor more than 25
percent of the gross weight.
(5) Spring assemblies. Spring assemblies (springs, hangers,
shackles, bushings and mounting bolts) shall be capable of withstanding
all the design loads as outlined in 3280.904(b)(3) without exceeding
maximum allowable stresses for design spring assembly life as
recommended by the spring assembly manufacturer. The capacity of the
spring system shall assure, that under maximum operating load
conditions, sufficient clearance shall be maintained between the tire
and manufactured home frame or structure to permit unimpeded wheel
movement and for changing tires.
(6) Axles. Axles, and their connecting hardware, shall be capable of
withstanding all of the design loads outlined in 3280.904(b)(3) without
exceeding maximum allowable stresses for design axle life as recommended
by the axle manufacturer. The number of axles required to provide a
safe tow and good ride characteristics shall be determined and
documented by engineering analysis. Those alternatives listed in
3280.903(c) may be accepted in place of such an analysis.
(7) Hubs and bearings. Hubs and bearings shall meet the requirements
of 3280.904(b)(3) and good engineering practice. Both of these
components shall be accessible for inspection, routine maintenance and
replacement of parts.
(8) Tires, wheels and rims. Tires, wheels and rims shall meet the
requirements of 3280.904(b)(3). Tires shall be selected for anticipated
usage.
(9) Brake assemblies. (i) The number, type, size and design of brake
assemblies required to assist the towing vehicle in providing effective
control and stopping of the manufactured home shall be determined and
documented by engineering analysis. Those alternatives listed in
3280.903(c) may be accepted in place of such an analysis.
(ii) Brakes on the towing vehicle and the manufactured home shall be
capable of assuring that the maximum stopping distance from an initial
velocity of 20 miles per hour does not exceed 40 feet (U.S. Department
of Transportation Regulations).
(10) Lights and associated wiring. Highway safety electrical lights
and associated wiring shall conform to applicable Federal requirements
in terms of location and performance. The manufacturer shall have the
option of meeting this requirement by utilizing a temporary light/wiring
harness provided by the manufactured home transportation carrier.
24 CFR 3280.904 PART 3282 -- MANUFACTURED HOME PROCEDURAL AND ENFORCEMENT REGULATIONS
24 CFR 3280.904 Pt. 3282
24 CFR 3280.904 Subpart A -- General
Sec.
3282.1 Scope and purpose.
3282.2 Program implementation authority.
3282.3 Establishment of office.
3282.4 Director.
3282.5 Principal branches.
3282.6 Separability of provisions.
3282.7 Definitions.
3282.8 Applicability.
3282.9 Computation of time.
3282.10 Civil and criminal penalties.
3282.11 Preemption and reciprocity.
3282.12 Excluded structures -- Modular homes.
3282.13 Voluntary certification.
3282.14 Alternative construction of manufactured homes.
24 CFR 3280.904 Subpart B -- Formal Procedures
3282.51 Scope.
3282.52 Address of communications.
3282.53 Service of process on foreign manufacturers and importers.
3282.54 Public information.
24 CFR 3280.904 Subpart C -- Rules and Rulemaking Procedures
3282.101 Scope and purpose.
3282.102 Regulatory docket.
3282.103 Initiation of rulemaking.
3282.104 Advance notice of proposed rulemaking.
3282.105 Notice of proposed rulemaking.
3282.106 Participation by interested persons.
3282.107 Contents of written comments.
3282.108 Consideration of comments received.
3282.109 Additional rulemaking proceedings.
3282.110 Effective date of standards.
3282.111 Petitions for reconsideration of final rules.
3282.112 Rulemaking on the basis of cost information submitted.
3282.113 Interpretive bulletins.
24 CFR 3280.904 Subpart D -- Informal and Formal Presentations of
Views, Hearings and Investigations
3282.151 Applicability and scope.
3282.152 Procedures to present views and evidence.
3282.153 Public participation in formal or informal presentation of
views.
3282.154 Petitions for formal or informal presentations of views, and
requests for extraordinary interim relief.
3282.155 Investigations.
3282.156 Petitions for investigation.
24 CFR 3280.904 Subpart E -- Manufacturer Inspection and Certification
Requirements
3282.201 Scope and purpose.
3282.202 Primary inspection agency contracts.
3282.203 DAPIA services.
3282.204 IPIA services.
3282.205 Certification requirements.
3282.206 Disagreement with IPIA or DAPIA.
3282.207 Transition certification program.
3282.208 Remedial actions -- general description.
3282.209 Report requirements.
3282.210 Payment of monitoring fee.
3282.211 Record of purchasers.
24 CFR 3280.904 Subpart F -- Dealer and Distributor Responsibilities
3282.251 Scope and purpose.
3282.252 Prohibition of sale.
3282.253 Removal of prohibition of sale.
3282.254 Distributor and dealer alterations.
3282.255 Completion of information card.
3282.256 Distributor or dealer complaint handling.
24 CFR 3280.904 Subpart G -- State Administrative Agencies
3282.301 General -- scope.
3282.302 State plan.
3282.303 State plan -- suggested provisions.
3282.304 Inadequate State plan.
3282.305 State plan approval.
3282.306 Withdrawal of State approval.
3282.307 Monitoring inspection fee establishment and distribution.
3282.308 State participation in monitoring of primary inspection
agencies.
3282.309 Formal and informal presentations of views held by SAAs.
24 CFR 3280.904 Subpart H -- Primary Inspection Agencies
3282.351 General.
3282.352 State exclusive IPIA functions.
3282.353 Submission format.
3282.354 Submittal of false information or refusal to submit
information.
3282.355 Submission acceptance.
3282.356 Disqualification and requalification of primary inspection
agencies.
3282.357 Background and experience.
3282.358 Personnel.
3282.359 Conflict of interest.
3282.360 PIA acceptance of product certification programs or
listings.
3282.361 Design Approval Primary Inspection Agency (DAPIA).
3282.362 Production Inspection Primary Inspection Agencies (IPIAs).
3282.363 Right of entry and inspection.
3282.364 Inspection responsibilities and coordination.
3282.365 Forwarding monitoring fee.
3282.366 Notification and correction campaign responsibilities.
24 CFR 3280.904 Subpart I -- Consumer Complaint Handling and Remedial
Actions
3282.401 Purpose and scope.
3282.402 General principles.
3282.403 Consumer complaint and information referral.
3282.404 Notification pursuant to manufacturer's determination.
3282.405 SAA responsibilities.
3282.406 Required manufacturer correction.
3282.407 Notification and correction pursuant to administrative
determination.
3282.408 Reimbursement for prior correction by owner.
3282.409 Manufacturer's plan for notification and correction.
3282.410 Contents of notice.
3282.411 Time for implementation.
3282.412 Completion of remedial actions and report.
3282.413 Replacement or repurchase of manufactured home from
purchaser.
3282.414 Manufactured homes in the hands of dealers and distributors.
3282.415 Notices, bulletins and other communications.
3282.416 Supervision of notification and correction actions.
24 CFR 3280.904 Subpart J -- Monitoring of Primary Inspection Agencies
3282.451 General.
3282.452 Participation in monitoring.
3282.453 Frequency and extent of monitoring.
24 CFR 3280.904 Subpart K -- Departmental Oversight
3282.501 General.
3282.502 Departmental implementation.
3282.503 Determinations and hearings.
24 CFR 3280.904 Subpart L -- Manufacturer, IPIA and SAA Reports
3282.551 Scope and purpose.
3282.552 Manufacturer reports for joint monitoring fees.
3282.553 IPIA reports.
3282.554 SAA reports.
Authority: Sec. 625 of the National Manufactured Housing
Construction and Safety Standards Act (42 U.S.C. 5424); sec. 7(d),
Department of HUD Act (42 U.S.C. 3535(d)).
Source: 41 FR 19852, May 13, 1976, unless otherwise noted.
Editorial Note: For nomenclature changes affecting this part, see 47
FR 28092, June 29, 1982.
24 CFR 3280.904 Subpart A -- General
24 CFR 3282.1 Scope and purpose.
(a) The National Manufactured Housing Construction and Safety
Standards Act of 1974 (title VI of Pub. L. 93-383, 88 Stat. 700, 42
U.S.C. 5401, et seq.) (hereinafter referred to as the Act), requires the
Secretary of the Department of Housing and Urban Development to
establish Federal manufactured home construction and safety standards
and to issue regulations to carry out the purpose of the Act. The
standards promulgated pursuant to the Act appear at part 3280 of chapter
XX of this title, and apply to all manufactured homes manufactured for
sale to purchasers in the United States on or after the effective date
of the standards (June 15, 1976). A manufactured home is manufactured
on or after June 15, 1976, if it enters the first stage of production on
or after that date.
(b) The Secretary is also authorized by the Act to conduct
inspections and investigations necessary to enforce the standards, to
determine that a manufactured home fails to comply with an applicable
standard or contains a defect or an imminent safety hazard, and to
direct the manufacturer to furnish notification thereof, and in some
cases, to remedy the defect or imminent safety hazard. The purpose of
this part is to prescribe procedures for the implementation of these
responsibilities of the Secretary under the Act through the use of
private and State inspection organizations and cooperation with State
manufactured home agencies. It is the policy of the Department to
involve State agencies in the enforcement of the Federal manufactured
home standards to the maximum extent possible consistent with the
capabilities of such agencies and the public interest.
24 CFR 3282.2 Program implementation authority.
(a) The Secretary has delegated to the Assistant Secretary for
Housing-Federal Housing Commissioner all of the authority to exercise
the responsibilities of the Secretary under the Act except the power to
sue and be sued.
(b) The Secretary has further authorized the Assistant Secretary to
redelegate any of the delegated authority to employees of the
Department.
(41 FR 19852, May 13, 1976, as amended at 47 FR 28092, June 29, 1982)
24 CFR 3282.3 Establishment of office.
There is established, as a unit subordinate to the Assistant
Secretary for Housing-Federal Housing Commissioner, the Manufactured
Housing Standards Division.
(41 FR 19852, May 13, 1976, as amended at 47 FR 28092, June 29, 1982)
24 CFR 3282.4 Director.
The Manufactured Housing Standards Division is headed by the
Director, who shall be named by the Assistant Secretary for
Housing-Federal Housing Commissioner.
(41 FR 19852, May 13, 1976, as amended at 47 FR 28092, June 29, 1982)
24 CFR 3282.5 Principal branches.
The following branches have been established within the Manufactured
Housing Standards Division:
(a) Standards Branch.
(b) Enforcement Branch.
(c) State and Consumer Liaison Branch.
(47 FR 28092, June 29, 1982)
24 CFR 3282.6 Separability of provisions.
If any clause, sentence, paragraph, section or other portion of part
3282 shall, for any reason, be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined by its operation
to the clause, sentence, paragraph, or part thereof directly involved in
the controversy in which such judgment shall have been rendered.
24 CFR 3282.7 Definitions.
The definitions in this subpart are those common to all subparts of
the regulations.
(a) Act means the National Manufactured Housing Construction and
Safety Standards Act of 1974, title VI of the Housing and Community
Development Act of 1974 (42 U.S.C. 5401 et seq.)
(b) Add-on means any structure (except a structure designed or
produced as an integral part of a manufactured home) which, when
attached to the basic manufactured home unit, increases the area, either
living or storage, of the manufactured home.
(c) Alteration means the replacement, addition, and modification, or
removal of any equipment or installation after sale by a manufacturer to
a dealer or distributor but prior to sale by a dealer to a purchaser
which may affect the construction, fire safety, occupancy, plumbing,
heat-producing or electrical system. It includes any modification made
in the manufactured home which may affect the compliance of the home
with the standards, but it does not include the repair or replacement of
a component or appliance requiring plug-in to an electrical receptacle
where the replaced item is of the same configuration and rating as the
one being replaced. It also does not include the addition of an
appliance requiring plug-in to an electrical receptacle, which appliance
was not provided with the manufactured home by the manufacturer, if the
rating of the appliance does not exceed the rating of the receptacle to
which it is connected.
(d) Certification label see label.
(e) Certification report means the report prepared by an IPIA (see
definition z) for each manufactured home manufacturing plant under
3282.203 in which the IPIA provides a complete description of the
initial comprehensive inspection of the plant, an evaluation of the
quality assurance program under the approved quality assurance manual,
and the identity of the DAPIA (see definition z) which approved the
designs and quality assurance manual used in the plant. Where
appropriate under 3282.362(b)(5), the certification report may be made
by a DAPIA.
(f) Component means any part, material or appliance which is built in
as an integral part of the manufactured home during the manufacturing
process.
(g) Cost information means information submitted by a manufacturer
under section 607 of the Act with respect to alleged cost increases
resulting from action by the Secretary, in such form as to permit the
public and the Secretary to make an informed judgment on the validity of
the manufacturer's statements. Such term includes both the
manufacturer's cost and the cost to retail purchasers.
(h) Date of manufacture means the date on which the label required by
3282.205(c) is affixed to the manufactured home.
(i) Dealer means any person engaged in the sale, leasing, or
distribution of new manufactured homes primarily to persons who in good
faith purchase or lease a manufactured home for purposes other than
resale.
(j) Defect means a failure to comply with an applicable Federal
manufactured home safety and construction standard that renders the
manufactured home or any part or component thereof not fit for the
ordinary use for which it was intended, but does not result in an
unreasonable risk of injury or death to occupants of the affected
manufactured home. See related definitions of imminent safety hazard
(definition q), noncompliance (definition x), and serious defect
(definition ff).
(k) Department means the Department of Housing and Urban Development.
(l) Design means drawings, specifications, sketches and the related
engineering calculations, tests and data in support of the
configurations, structures and systems to be incorporated in
manufactured homes manufactured in a plant.
(m) Director means the Director of the Manufactured Housing Standards
Division.
(n) Distributor means any person engaged in the sale and distribution
of manufactured homes for resale.
(o) Failure to conform means an imminent safety hazard related to the
standards, a serious defect, defect, or noncompliance and is used as a
substitute for all of those terms.
(p) HUD means the Department of Housing and Urban Development.
(q) Imminent safety hazard means a hazard that presents an imminent
and unreasonable risk of death or severe personal injury that may or may
not be related to failure to comply with an applicable Federal
manufactured home construction or safety standard. See related
definitions of defect (definition j), noncompliance (paragraph x) and
serious defect (paragraph ff).
(r) Joint monitoring team means a monitoring inspection team composed
of personnel provided by the various State Administrative Agencies, or
by HUD or its contract agent, operating under a contract with HUD for
the purpose of monitoring, or otherwise aiding in the enforcement of the
Federal standards.
(s) Label or certification label means the approved form of
certification by the manufacturer that, under 3282.362(c)(2)(i), is
permanently affixed to each transportable section of each manufactured
home manufactured for sale to a purchaser in the United States.
(t) (Same as 3280.2(a)(13).)
(u) Manufacturer means any person engaged in manufacturing or
assembling manufactured homes, including any person engaged in importing
manufactured homes for resale.
(v) (Same as 3280.2(a)(16).)
(w) Manufactured home construction means all activities relating to
the assembly and manufacture of a manufactured home including but not
limited to those relating to durability, quality, and safety.
(x) Manufactured home safety means the performance of a manufactured
home in such a manner that the public is protected against any
unreasonable risk of the occurrence of accidents due to the design or
construction of such manufactured home, or any unreasonable risk of
death or injury to the user or to the public if such accidents do occur.
(y) Noncompliance means a failure of a manufactured home to comply
with a Federal manufactured home construction or safety standard that
does not constitute a defect, serious defect, or imminent safety hazard.
See related definitions or defect (definition j), imminent safety
hazard (definition q), and serious defect (definition ff).
(z) Owner means any person purchasing a manufactured home from any
other person after the first purchase of the manufactured home, in good
faith, for purposes other than resale.
(aa) Primary Inspection Agency (PIA) means a State/or private
organization that has been accepted by the Secretary in accordance with
the requirement of subpart H of this part. There are two types of PIA:
(1) Design Approval PIA (DAPIA), which evaluates and approves or
disapproves manufactured home designs and quality control procedures,
and
(2) Production Inspection PIA (IPIA), which evaluates the ability of
manufactured home manufacturing plants to follow approved quality
control procedures and provides ongoing surveillance of the
manufacturing process. Organizations may act as one or both of these
types.
(bb) Purchaser means the first person purchasing a manufactured home
in good faith for purposes other than resale.
(cc) Quality Assurance Manual means a manual, prepared by each
manufacturer for its manufacturing plants and approved by a DAPIA which
contains: a statement of the manufacturer's quality assurance program,
a chart of the organization showing, by position, all personnel
accountable for quality assurance, a list of tests and test equipment
required, a station-by-station description of the manufacturing process,
a list of inspections required at each station, and a list by title of
personnel in the manufacturer's organization to be held responsible for
each inspection. Where necessary, the quality assurance manual used in
a particular plant shall contain information specific to that plant.
(dd) To red tag means to affix a notice to a manufactured home which
has been found to contain an imminent safety hazard or a failure to
conform with any applicable standard. A red tag is the notice so
affixed to the manufactured home.
(ee) Secretary means the Secretary of Housing and Urban Development.
(ff) Secretary's agent means a party operating as an independent
contractor under a contract with HUD.
(gg) Serious defect means any failure to comply with an applicable
Federal manufactured home construction and safety standard that renders
the manufactured home or any part thereof not fit for the ordinary use
for which it was intended and which results in an unreasonable risk of
injury or death to occupants of the affected manufactured home.
(hh) Standards means the Federal manufactured home construction and
safety standards promulgated under section 604 of the Act, 42 U.S.C.
5403, as part 3280 of these regulations.
(ii) State includes each of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, the
Canal Zone, and American Samoa.
(jj) State Administrative Agency (SAA) means an agency of a State
which has been approved or conditionally approved to carry out the State
plan for enforcement of the standards pursuant to section 623 of the
Act, 42 U.S.C. 5422, and subpart G of this part.
(kk) State plan application means the application of any State
organization which is submitted to the Secretary for approval as a State
Administrative Agency under subpart G.
(ll) System means a set or arrangement of materials or components
related or connected as to form an operating entity, i.e., heating,
ventilating and air-conditioning systems, evaporative coolers.
(mm) Title I means Title I of the National Housing Act, 12 U.S.C.
1701, which authorizes HUD to insure loans made for the purchase of
manufactured homes that are certified as meeting HUD requirements for
dwelling quality and safety.
(nn) United States District Courts means the Federal district courts
of the United States and the United States courts of the Commonwealth of
Puerto Rico, Guam, the Virgin Islands, the Canal Zone, and American
Samoa.
(oo) (Same as 3280.2(a)(22).)
(41 FR 19852, May 13, 1976, as amended at 41 FR 24971, June 21, 1976;
47 FR 28093, June 29, 1982)
24 CFR 3282.8 Applicability.
(a) Mobile homes. This part applies to all manufactured homes that
enter the first stage of production on or after June 15, 1976, and to
all manufactured homes that enter the first stage of production before
June 15, 1976, to which labels are applied under 3282.205(d).
(b) States. This part applies to States that desire to assume
responsibility under the Federal manufactured home construction and
safety standards enforcement program. It includes requirements which
must be met in order for State agencies to be approved by the Secretary
under sec. 623(c) of the Act, 42 U.S.C. 5422(c). It also includes
requirements for States wishing to act as primary inspection agencies,
as defined in 3282.7, or to participate in monitoring activities under
3282.308.
(c) Primary inspection and engineering organizations. This part
applies to each private inspection and engineering organization that
wishes to qualify as a primary inspection agency under subpart H.
(d) Manufactured home manufacturers. This part applies to all
manufacturers producing manufactured homes for sale in the United
States. It includes:
(1) Inspection procedures to be carried out in the manufacturing
plants.
(2) Procedures by which a manufacturer obtains approval of
manufactured home designs.
(3) Procedures by which a manufacturer obtains approval of
manufacturing quality control and assurance programs.
(4) Procedures by which a manufacturer may obtain production
inspections and certification labels for its manufactured homes.
(e) Manufactured home dealers and distributors. This part applies to
any person selling, leasing, or distributing new manufactured homes for
use in the United States. It includes prohibitions of the sale of new
manufactured homes to which labels have not been affixed pursuant to
subpart H of these regulations or that have been altered, damaged, or
otherwise caused not to be in compliance with the Federal standards.
(f) Purchasers, owners and consumers. This part applies to
purchasers, owners and consumers of manufactured homes in that it sets
out procedures to be followed when purchasers, owners and consumers
complain to manufacturers, States, the Secretary or others concerning
problems in manufactured homes for which remedies are provided under the
Act.
(g) Recreational vehicles. Recreational vehicles are not subject to
this part, part 3280, or part 3283. A recreational vehicle is a vehicle
which is:
(1) Built on a single chassis;
(2) 400 Square feet or less when measured at the largest horizontal
projections;
(3) Self-propelled or permanently towable by a light duty truck; and
(4) Designed primarily not for use as a permanent dwelling but as
temporary living quarters for recreational, camping, travel, or seasonal
use.
(h) Imported manufactured homes. Imported manufactured homes are
covered by the regulations except as modified by regulations promulgated
jointly by the Secretary and the Secretary of the Treasury.
(i) Export manufactured homes. Manufactured Homes intended solely
for export are not governed by this part or by part 3280 of this title
if a label or tag stating that the manufactured home is intended solely
for export is placed on the manufactured home or the outside of the
container, if any, in which it is to be exported. However, any
manufactured home so tagged or labeled that is not exported but is sold
to a purchaser in the United States is subject to this part and part
3280 of this title.
(j) Add-on. An add-on added by the dealer or some other party not
the manufacturer (except where the manufacturer acts as a dealer) as
part of a simultaneous transaction involving the sale of a new
manufactured home, is not governed by the standards and is not subject
to these regulations. However, the addition of the add-on must not
affect the ability of the basic manufactured home to comply with the
standards. If the addition of an add-on causes the basic manufactured
home to fail to conform to the standards, sale, lease, and offer for
sale or lease of the home is prohibited until the manufactured home is
brought into conformance with the standards. While the standards do not
govern add-ons, the Secretary has the authority to promulgate standards
for add-ons and may do so in the future.
(k) A structure (including an expandable room, tip-out, or tag-along
unit) which is designed and produced as an integral part of a
manufactured home when assembled on site, is governed by the standards
and these regulations regardless of the dimensions of such structure.
(l) Multifamily homes. Mobile homes designed and manufactured with
more than one separate living unit are not covered by the standards and
these regulations.
(41 FR 19852, May 13, 1976, as amended at 41 FR 24970, June 21, 1976;
42 FR 35013, July 7, 1977; 44 FR 68733, Nov. 29, 1979; 47 FR 28093,
June 29, 1982)
24 CFR 3282.9 Computation of time.
(a) In computing any period of time prescribed or allowed by these
regulations, the day of the act or event from which the designated
period of time begins to run shall not be included in the computation.
The last day of the period so computed shall be included unless it is a
Saturday, Sunday, or a legal holiday, in which event the period runs
until the end of the next day which is not a Saturday, Sunday, or legal
holiday. When the period of time prescribed or allowed is less than 7
days, intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation. When the period of time prescribed or
allowed is more than 7 days, intermediate Saturdays, Sundays, and legal
holidays shall be included in the computation. As used in this section
legal holiday includes New Year's Day, Washington's Birthday, Memorial
Day, Independ- ence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day, Christmas Day, and any other day appointed as a
holiday by the President or the Congress of the United States.
(b) Extensions of any of the time periods set out in these
regulations may be granted by the Secretary or, as appropriate, by a
State Administrative Agency, upon a showing of good cause by the party
governed by the time period.
(42 FR 2580, Jan. 12, 1977)
24 CFR 3282.10 Civil and criminal penalties.
Failure to comply with these regulations may subject the party in
question to the civil and criminal penalties provided for in section 611
of the Act, 42 U.S.C. 5410.
24 CFR 3282.11 Preemption and reciprocity.
(a) No State manufactured home standard regarding manufactured home
construction and safety which covers aspects of the manufactured home
governed by the Federal standards shall be established or continue in
effect with respect to manufactured homes subject to the Federal
standards and these regulations unless it is identical to the Federal
standards.
(b) No State may require, as a condition of entry into or sale in the
State, that a manufactured home which has been certified as in
conformance with the Federal standards by the application of the label
required by 3282.362 (c)(2)(i) be subjected to state inspection to
determine compliance with any standard covering any aspect of the
manufactured home covered by the Federal standard, except that a State
may inspect a home to determine compliance with the Federal standard or
an identical State standard if a transition certification label has been
affixed to the home under 3282.207. Nor may any State require that a
State label certifying conformance to the Federal standard or an
identical standard be placed on the manufactured home, except that such
a label may be required where a transition certification label has been
affixed to the home under 3282.207. Certain actions which States are
permitted to take are set out in 3282.303 of subpart G of this part.
(c) States may participate in the enforcement of the Federal
standards enforcement program under these regulations either as SAAs or
PIAs or both. These regulations establish the exclusive system for
enforcement of the Federal standards. No State may establish or keep in
effect through a building code enforcement system or otherwise,
procedures or requirements which constitute systems for enforcement of
the Federal standards or of identical State standards which are outside
the system established in these regulations or which go beyond this
system to require remedial actions which are not required by the Act and
these regulations. A State may establish or continue in force consumer
protections, such as warranty or warranty performance requirements,
which respond to individual consumer complaints and so do not constitute
systems of enforcement of the Federal standards, regardless of whether
the State qualifies as an SAA or PIA.
(d) No State or locality may establish or enforce any rule or
regulation or take any action that stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress. The test of whether a State rule or action is valid or must
give way is whether the State rule can be enforced or the action taken
without impairing the Federal superintendence of the manufactured home
industry as established by the Act.
(42 FR 2580, Jan. 12, 1977, as amended at 56 FR 65186, Dec. 16, 1991)
24 CFR 3282.12 Excluded structures -- Modular homes.
(a) the purpose of this section is to provide the certification
procedure authorized by section 604(h) of the National Manufactured
Housing Construction and Safety Standards Act under which modular homes
may be excluded from coverage of the Act if the manufacturer of the
structure elects to have them excluded. If a manufacturer wishes to
construct a structure that is both a manufactured home and a modular
home, the manufacturer need not make the certification provided for by
this section and may meet both the Federal manufactured home
requirements and any modular housing requirements. When the
certification is not made, all provisions of the Federal requirements
shall be met.
(b) Any structure that meets the definition of manufactured home at
24 CFR 3282.7(u) is excluded from the coverage of the National
Manufactured Housing Construction and Safety Standards Act, 42 U.S.C.
5401 et seq., if the manufacturer certifies as prescribed in paragraph
(c) of this section that:
(1) The structure is designed only for erection or installation on a
site-built permanent foundation;
(i) A structure meets this criterion if all written materials and
communications relating to installation of the structure, including but
not limited to designs, drawings, and installation or erection
instructions, indicate that the structure is to be installed on a
permanent foundation.
(ii) A site-built permanent foundation is a system of supports,
including piers, either partially or entirely below grade which is:
(A) Capable of transferring all design loads imposed by or upon the
structure into soil or bedrock without failure,
(B) Placed at an adequate depth below grade to prevent frost damage,
and
(C) Constructed of concrete, metal, treated lumber or wood, or
grouted masonry; and
(2) The structure is not designed to be moved once erected or
installed on a site-built permanent foundation;
(i) A structure meets this criterion if all written materials and
communications relating to erection or installation of the structure,
including but not limited to designs, drawings, calculations, and
installation or erection instructions, indicate that the structure is
not intended to be moved after it is erected or installed and if the
towing hitch or running gear, which includes axles, brakes, wheels and
other parts of the chassis that operate only during transportation, are
removable and designed to be removed prior to erection or installation
on a site-built permanent foundation; and
(3) The structure is designed and manufactured to comply with the
currently effective version of one of the following:
(i) One of the following nationally recognized building codes:
(A) That published by Building Officials and Code Administrators
(BOCA) and the National Fire Protection Association (NFPA) and made up
of the following:
(1) BOCA Basic Building Code,
(2) BOCA Basic Industrialized Dwelling Code,
(3) BOCA Basic Plumbing Code,
(4) BOCA Basic Mechanical Code, and
(5) National Electrical Code, or
(B) That published by the Southern Building Code Congress (SBCC) and
the NFPA and made up of the following:
(1) Standard Building Code,
(2) Standard Gas Code,
(3) Standard Mechanical Code,
(4) Standard Plumbing Code, and
(5) National Electrical Code, or
(C) That published by the International Conference of Building
Officials (ICBO), the International Association of Plumbing and
Mechanical Officials (IAPMO), and the NFPA and made up of the following:
(1) Uniform Building Code,
(2) Uniform Mechanical Code,
(3) Uniform Plumbing Code, and
(4) National Electrical Code or
(D) The codes included in paragraphs (b)(3)(i)(A), (B), or (C) in
connection with the One- and Two-Family Dwelling Code, or
(E) Any combination of the codes included in paragraphs (b)(3)(i)(A),
(B), (C), and (D), that is approved by the Secretary, including
combinations using the National Standard Plumbing Code published by the
National Association of Plumbing, Heating and Cooling Contractors
(PHCC), or
(F) Any other building code accepted by the Secretary as a nationally
recognized model building code, or
(ii) Any local code or State or local modular building code accepted
as generally equivalent to the codes included under paragraph (b)(3)(i),
(the Secretary will consider the manufacturer's certification under
paragraph (c) of this section to constitute a certification that the
code to which the structure is built is generally equivalent to the
referenced codes. This certification of equivalency is subject to the
provisions of paragraph (f) of this section) or
(iii) The minimum property standards adopted by the Secretary
pursuant to title II of the National Housing Act; and
(4) To the manufacturer's knowledge, the structure is not intended to
be used other than on a site-built permanent foundation.
(c) When a manufacturer makes a certification provided for under
paragraph (b) of this section, the certification shall state as follows:
The manufacturer of this structure, Name ---------------- ; Address
---------------- (location where structure was manufactured).
Certifies that this structure (Ser. No. -------- ) is not a
manufactured home subject to the provisions of the National Manufactured
Housing Construction and Safety Standards Act and is --
(1) designed only for erection or installation on a site-built
permanent foundation,
(2) not designed to be moved once so erected or installed,
(3) designed and manufactured to comply with ---------------- (Here
state which code included in paragraph (b)(3) of this section has been
followed), and
(4) to the manufacturer's knowledge is not intended to be used other
than on a site-built permanent foundation.
(d) This certification shall be affixed in a permanent manner near
the electrical panel, on the inside of a kitchen cabinet door, or in any
other readily accessible and visible location.
(e) As part of this certification, the manufacturer shall identify
each certified structure by a permanent serial number placed on the
structure during the first stage of production. If the manufacturer
also manufactures manufactured homes that are certified under 3282.205
and 3282.362(c), the series of serial numbers for structures certified
under this section shall be distinguishable on the structures and in the
manufacturer's records from the series of serial numbers for the
manufactured homes that are certified under 3282.205 and 3282.362(c).
(1) If a manufacturer wishes to certify a structure as a manufactured
home under 3282.205 and 3282.362(c) after having applied a serial
number identifying it as exempted under this section, the manufacturer
may do so only with the written consent of the Production Inspection
Primary Inspection Agency (IPIA) after thorough inspection of the
structure by the IPIA at at least one stage of production and such
removal or equipment, components, or materials as the IPIA may require
to perform inspections to assure that the structure conforms to the
Federal manufactured home standards. The manufacturer shall remove the
original serial number and add the serial number required by 3280.6.
(2) A manufacturer may not certify a structure under this section
after having applied the manufactured home serial number under 3280.6.
(f) All certifications made under this section are subject to
investigation by the Secretary to determine their accuracy. If a
certification is false or inaccurate, the certification for purposes of
this section is invalid and the structures that have been or may be the
subject of the certification are not excluded from the coverage of the
Act, the Federal Manufactured Home Construction and Safety Standards, or
these Regulations.
(1) If the Secretary has information that a certification may be
false or inaccurate, the manufacturer will be given written notice of
the nature of this information by certified mail and the procedure of
this subparagraph will be followed.
(i) The manufacturer must investigate this matter and report its
findings in writing as to the validity of this information to the
Secretary within 15 days from the receipt of the Secretary's notice.
(ii) If a written report is received within the time prescribed in
paragraph (f)(1)(i) of this section, the Secretary will review this
report before determining whether a certification is false or
inaccurate. If a report is not received within 15 days from the receipt
of the Secretary's notice, the Secretary will make the determination on
the basis of the information presented.
(iii) If the Secretary determines that a certification is false or
inaccurate, the manufacturer will be given written notice and the
reasons for this determination by certified mail.
(2) The Secretary may seek civil and criminal penalties provided for
in section 611 of the Act, 42 U.S.C. 5410, if the party in question in
the exercise of due care has reason to know that such certification is
false or misleading as to any material fact.
(44 FR 68733, Nov. 29, 1979, as amended at 49 FR 10666, Mar. 22,
1984)
24 CFR 3282.13 Voluntary certification.
(a) The purpose of this section is to provide a procedure for
voluntary certification of non-conforming manufactured homes as required
by 42 U.S.C. 5402(6) as amended by Section 308(d)(B) of the Housing and
Community Development Act of 1980.
(b) Structures which meet all of the requirements of a manufactured
home as set out in 3282.7(u), except the size requirements, shall be
manufactured homes if the manufacturer files with the Secretary a
certification in the following form:
(Name of manufacturer and address where structures are to be
manufactured) certifies that it intends to manufacture structures that
meet all of the requirements of manufactured homes set forth at 42
U.S.C. 5402(6) except the size requirements. Such structures are to be
treated as manufactured homes for the purposes of the National
Manufactured Housing Construction and Safety Standards Act of 1974 and
the regulations promulgated pursuant thereto. Such structures will be
built in conformance with the Standards. (Name of manufacturer) further
certifies that if, at any time it manufactures structures which are not
manufactured homes, it will identify each such structure by a permanent
serial number placed on the structure during the first stage of
production and that the series of serial numbers for such structures
shall be distinguishable on the structures and in its records from the
series of serial numbers used for manufactured homes.
(c) Whenever a manufacturer which has filed a certification pursuant
to 3282.13(b) produces structures which are not manufactured homes, it
must identify each such structure by placing a permanent serial number
on the structure during the first stage of production. The series of
serial numbers placed on these structures shall be distinguishable on
the structure and in the manufacturer's records from the series of
serial numbers used for manufactured homes.
(d) A manufacturer may certify a structure as a manufactured home
after having applied a serial number identifying it as a structure which
is not a manufactured home. To do so, the manufacturer must secure the
written consent of the IPIA. This consent may only be given after a
DAPIA has approved the manufacturer's design and quality assistance
manual in accordance with 3282.361, and after the IPIA has thoroughly
inspected the structure in at least one stage of production and after
such removal of equipment, components or materials as the IPIA may
require to assure that the structure conforms to the standards. After
certification as a manufactured home has been approved, the manufacturer
shall remove the original serial number and add the serial number
required by 3280.6.
(e) Once a manufacturer has certified under 3282.13(b) that it
intends to build structures which are manufactured homes in all respects
except size, the manufacturer must then, with respect to those
structures, comply with all of the requirements of the Act and its
regulations. The structures may not thereafter be exempted under any
other section of these regulations.
(47 FR 28093, June 29, 1982)
24 CFR 3282.14 Alternative construction of manufactured homes.
(a) Policy. In order to promote the purposes of the Act, the
Department will permit the sale or lease of one or more manufactured
homes not in compliance with the Standards under circumstances wherein
no affirmative action is needed to protect the public interest. The
Department encourages innovation and the use of new technology in
manufactured homes. Accordingly, HUD will permit manufacturers to
utilize new designs or techniques not in compliance with the Standards
in cases:
(1) Where a manufacturer proposes to utilize construction that would
be prohibited by the Standards;
(2) Where such construction would provide performance that is
equivalent to or superior to that required by the Standards; and
(3) Where (i) compliance with the Standards would be unreasonable
because of the circumstances of the particular case, or (ii) the
alternative construction would be for purposes of research, testing or
development of new techniques or designs. If a request for alternative
construction is submitted and the facts are consistent with these
principles, the Secretary may issue a letter under paragraph (c) of this
section stating that no action will be taken under the Act based upon
specific failures to conform to the Standards or these regulations,
provided that certain conditions are met. The issuance of a letter
under paragraph (c) of this section will not affect any right that any
purchaser may have under the Act or other applicable law and will not
preclude any further agency action that may become necessary.
(b) Request for alternative construction. A manufacturer may submit
a request for alternative construction of a manufactured home. The
request should be sent to the U.S. Department of Housing and Urban
Development, Manufactured Housing Standards Division, 451 Seventh
Street, SW., Washington, DC 20410. The request must include:
(1) A copy of the manufactured design or plan for each nonconforming
model which a manufacturer plans to build;
(2) An explanation of the manner in which the design fails to conform
with the Standards, including a list of the specific standards involved;
(3) An explanation of how the design will result in homes that
provide the same level of performance, quality, durability and safety as
would be provided under the Standards;
(4) A copy of data adequate to support the request, including
applicable test data, engineering calculations or certifications from
nationally recognized laboratories;
(5) An estimate of the maximum number of manufactured home units
affected and the location, if known, to which the units will be shipped;
(6) An indication of the period of time during which the manufacturer
proposes to engage in the manufacture, sale or lease of the
nonconforming homes;
(7) A copy of the proposed notice to be provided to home purchasers;
(8) a list of the names and addresses of any dealers that would be
selling the nonconforming homes; and
(9) A letter from the manufacturer's DAPIA indicating that the
design(s) to which any nonconforming homes would be built meet the
Standards in all other respects.
(c) Issuance of the letter by the Secretary -- (1) Contents of the
letter. If the Secretary issues a letter in response to a request for
alternative construction, the letter shall include the specific
standards affected, an explanation of the proposed activity or design,
an explanation of how the request is consistent with the objectives of
the Act, and any conditions that the manufacturer must meet.
(2) Letter sent to IPIA, DAPIA and SAA. The Secretary shall forward
a copy of the letter to the manufacturer's IPIA and DAPIA along with a
letter authorizing the DAPIA to approve plans containing the alternative
construction, and authorizing the IPIA to permit use of the alternative
construction, provided that the conditions set forth in the letter are
met. The Secretary shall also forward a copy of the letter to the SAAs
in the State of manufacture and the State(s) in which the homes are to
be located, if known.
(3) Alternative construction in additional models. In cases where
the Secretary grants a letter under this paragraph that is not
model-specific, the Secretary may permit the manufacturer to include the
alternative construction in additional models. In such cases, the DAPIA
shall notify the Department of additional models that incorporate the
alternative construction.
(d) Revocation. The Secretary may revoke or amend a letter issued
under paragraph (c) of this section at any time. Such revocation or
amendment will be prospective only. Where manufacturers have requested
alternative construction for research, testing or development such
alternative construction may not achieve the anticipated results.
Therefore, the Secretary may require a manufacturer to bring those homes
into compliance with the standards if, after the alternative
construction has been in use for a period of time specified by the
Secretary, these homes are not, in the Secretary's judgment, providing
the levels of safety, quality and durability which would have been
provided had the homes been built in compliance with the Standards.
(e) Notice to prospective purchasers. Manufacturers receiving
letters under paragraph (c) of this section shall provide notice to
prospective purchasers that the home does not conform to the Standards.
Such notice shall be delivered to each prospective purchase before he or
she enters into an agreement to purchase the home. The notice shall be
in the following form or in such other form as may be approved by the
Secretary:
The Department of Housing and Urban Development has issued a letter
to (Name of Manufacturer) concerning the homes in (location if known).
As designed, the homes do not meet Federal Manufactured Home
Construction and Safety Standards regarding (brief statement of
manufacturer's nonconformance).
HUD has evaluated the alternative construction and believes that it
provides an equivalent level of quality, durability and safety to that
provided by the Standards.
For further information about the specific Federal Standards
involved, a copy of the letter issued pursuant to 24 CFR 3282.14(c) is
available from this dealer or manufacturer upon request.
(f) Serial numbers of homes constructed using alternative
construction. Manufacturers shall provide the Department with the
serial numbers assigned to each home produced in conformance with the
letter issued under paragraph (c) of this section within 90 days of
their date of manufacture. Each serial number shall include the letters
''AC'' to indicate that the homes was produced under alternative
construction procedures.
(49 FR 1967, Jan. 16, 1984)
24 CFR 3282.14 Subpart B -- Formal Procedures
24 CFR 3282.51 Scope.
This subpart contains rules of procedure generally applicable to the
transaction of official business under the National Manufactured Housing
Construction and Safety Standards Act, including the rules governing
public availability of information.
24 CFR 3282.52 Address of communications.
Unless otherwise specified, communications shall be addressed to the
Director, Manufactured Housing Standards Division, Department of Housing
and Urban Development, 451 Seventh Street, SW., Washington, DC 20410.
24 CFR 3282.53 Service of process on foreign manufacturers and
importers.
(a) Designation of agent for service. Any manufacturer, before
offering a manufactured home for importation into the United States,
shall designate an agent upon whom service of all processes, notices,
orders, decisions, and requirements may be made for and on behalf of
such manufacturers as provided in section 612(e) of the Act and in this
section. The agent may be an individual, a firm, or a domestic
corporation. Changes in the designation of agents shall be made in
accordance with the provisions of 3282.53(b).
(b) Form and contents of designation of agent. The designation shall
be in writing, dated, and signed by the manufacturer and the designated
agent. The designation shall be made in legal form required to make it
valid and binding on the manufacturer under the laws, corporate by-laws,
or other requirements governing the making of the designation by the
manufacturer at the place and time where it is made and the person or
persons signing the designation shall certify that it is so made. The
designation shall disclose the full legal name, principal place of
business, and mailing address of both the manufacturer and the
designated agent.
(c) Method of service. Service of any process, notice, order,
requirements, or decision specified in section 612(e) of the Act may be
made by registered or certified mail addressed to the agent with return
receipt requested, or in any other manner authorized by law. If service
cannot be effected on the designated agent for any reason, service may
be made to the Secretary by registered or certified mail.
24 CFR 3282.54 Public information.
(a) General. Subject to the provisions of 24 CFR part 15 covering
the production or disclosure of material or information and the
provisions of 24 CFR part 16 at 40 FR 39729 relating to the Privacy Act,
and except as otherwise provided by paragraphs (b), (c), (d), and (e) of
this section, the Secretary may make available to the public:
(1) Any information which may indicate the existence of an imminent
safety hazard, and
(2) Any information which may indicate the failure of a manufactured
home to comply with applicable manufactured home construction and safety
standards, and
(3) Such other information as the Secretary determines is necessary
to carry out the Secretary's functions under the Act.
(b) Protected information. Data and information submitted or
otherwise provided to the Secretary or an agent of the Secretary or a
PIA or SAA which fall within the definitions of a trade secret or
confidential commercial or financial information are exempt from
disclosure under this section, only if the party submitting or providing
the information so requests under paragraph (c) of this section.
However, the Secretary may disclose such information to any person
requesting it after deletion of the portions which are exempt, or in
such combined or summary form as does not disclose the portions which
are exempt from disclosure or in its entirety in accordance with section
614 of the Act, U.S.C. 5413.
(c) Obtaining exemption. Any party submitting any information to the
Secretary in any form under this part, or otherwise in relation to the
program established by the Act shall, if the party desires the
information to be exempt from disclosure, at the time of submittal of
the information or at any time thereafter, request that the information
or any part thereof be protected from disclosure. The request for
nondisclosure shall include the basis for the request under the Act or
other authority and complete justification supporting the claim that the
material should be exempt from disclosure. The request should also
include a statement of the information in such combined or summary form
that alleged trade secrets or other protected information and the
identity of the submitting party would not be disclosed. This request
need not be made with respect to information which was submitted to the
Secretary, an SAA or a PIA prior to the effective date of these
regulations.
(d) Information submitted in opposition to action of the Secretary
under section 607(a) of the Act, 42 U.S.C. 5406(a). Notice of the
availability of any information submitted under section 607 of the Act
shall be published in the Federal Register promptly after its receipt
and after any determination by the Secretary regarding a manufacturer's
request for exemption from disclosure under that section.
(e) Request for information from PIAs or SAAs. Whenever a PIA or SAA
receives requests for disclosure of information, it shall disclose the
information unless the party from which the information was originally
obtained has submitted to the PIA or SAA a request that the information
not be disclosed under paragraph (c) of this section, except that the
PIA or SAA shall be governed by the provisions of 24 CFR part 16 (40 FR
39729) relating to the Privacy Act which may limit the disclosure of
information. If a request for nondisclosure under paragraph (c) of this
section has been received with respect to information whose disclosure
is requested, the PIA or SAA shall refer the matter to the Secretary
within 5 days of the request for disclosure. If a PIA or SAA receives a
request for disclosure of information related to this program, which
information was submitted to the PIA or SAA prior to the effective date
of these regulations, the PIA or SAA shall refer the request for
nondisclosure and required information to the Secretary.
24 CFR 3282.54 Subpart C -- Rules and Rulemaking Procedures
24 CFR 3282.101 Scope and purpose.
This subpart prescribes procedures that apply to the formulation,
issuance, amendment and revocation of rules pursuant to the National
Manufactured Housing Construction and Safety Standards Act. Rulemaking
under the Act is also subject to the provisions of 24 CFR part 10.
24 CFR 3282.102 Regulatory docket.
Information and data deemed relevant by the Secretary relating to
rulemaking actions, including notices of proposed rulemaking, comments
received in response to notices, petitions for rulemaking and
reconsideration, denials of petitions for rulemaking and
reconsideration, and final rules are maintained by the Rules Docket
Clerk, Office of the Secretary, Room 10141, Department of Housing and
Urban Development, 451 Seventh Street, SW., Washington, DC 20410. All
communications with respect to rulemaking shall be sent to the Rules
Docket Clerk at the above address.
24 CFR 3282.103 Initiation of rulemaking.
(a) The issuance, amendment or repeal of any rule may be proposed
upon the initiative of the Secretary or upon the petition of any
interested person showing reasonable grounds therefor.
(b) Petitions for rulemaking by interested persons. (1) Each
petition filed under this subsection:
(i) Shall set forth the text or substance of the rule or amendment
proposed, or specify the rule that the petitioner seeks to have
repealed, as the case may be;
(ii) Shall explain the interest of the petitioner in the action
requested;
(iii) Shall contain any information and arguments available to the
petitioner to support the action sought; and
(iv) Should be identified as a petition for rulemaking submitted
under this subpart.
(2) The Secretary shall respond to a petition submitted under this
section within 180 days of receipt thereof by granting or denying the
petition or scheduling a public hearing or other appropriate proceeding,
except that this time limit may be exceeded where necessary to assure
full resolution of the issues involved on the basis of adequate
information. Unless the Secretary otherwise specifies, no public
hearing, argument or other proceedings shall be held on a petition
before its disposition under this subsection. If the Secretary
determines that the petition contains adequate justification, the
Secretary shall initiate rulemaking action under this subpart. If the
Secretary determines that the petition does not justify rulemaking, the
Secretary shall deny the petition and notify the petitioner.
24 CFR 3282.104 Advance notice of proposed rulemaking.
An Advance Notice of Proposed Rulemaking is a notice in which the
Secretary indicates that consideration is being given to proposing a
rule and through which the public is given an early opportunity to
participate in decisions as to whether a rule change is necessary and
what the content of the new rule should be. The Advance Notice is
published in the Federal Register and it explains the possible need for
rulemaking and the issues which may be involved. Where possible, it
includes specific questions to which the Secretary needs answers in
order to develop a proposed rule under 3282.105. The Secretary will use
the Advance Notice whenever, in the judgment of the Secretary, it is
appropriate and practicable in developing rules under this subpart.
24 CFR 3282.105 Notice of proposed rulemaking.
(a) A notice of proposed rulemaking shall be issued and interested
persons invited to participate in the process of formulation of rules
under applicable provisions of the Act, unless the Secretary, for good
cause, finds that notice is impractical, unnecessary or contrary to the
public interest, and incorporates that finding and a brief statement of
the reasons therefor in the rule.
(b) Each notice of proposed rulemaking shall be published in the
Federal Register, and shall include:
(1) A statement of the nature of the proposed rulemaking;
(2) A reference to the authority under which it is issued;
(3) A description of the subjects and issues involved or the
substance and terms of the proposed rule;
(4) A statement of the time within which written comments must be
submitted;
(5) A statement of the time and place of the public rulemaking
proceedings, if any.
24 CFR 3282.106 Participation by interested persons.
Any interested person may participate in the process of formulating,
amending or repealing a rule by submitting comments in writing
containing information, views or arguments.
24 CFR 3282.107 Contents of written comments.
Comments should be clearly organized so that the Secretary can
determine which points made in the comment relate to which aspects of
the proposed rule or Advanced Notice. They should include documentation
of all factual assertions. It is requested, but not required, that 10
copies be submitted. Incorporation of material by reference should be
avoided. However, if such incorporation is necessary, the incorporated
material should be identified with respect to document and page.
24 CFR 3282.108 Consideration of comments received.
All timely comments shall be considered before final action is taken
on a rulemaking proposal. Comments filed late may be considered as far
as practicable.
24 CFR 3282.109 Additional rulemaking proceedings.
The Secretary may initiate any further rulemaking proceedings that
the Secretary finds necessary or desirable.
24 CFR 3282.110 Effective date of standards.
Each order establishing, amending or revoking a Federal manufactured
home construction and safety standard shall specify the date such
standard is to take effect, which shall not be sooner than 180 days or
later than one year after the date such order is issued, unless the
Secretary finds, for good cause shown, that an earlier or later
effective date is in the public interest, and publishes the reasons for
such finding.
24 CFR 3282.111 Petitions for reconsideration of final rules.
(a) Definition. A petition for reconsideration of a final rule
issued by the Secretary is a request in writing from any interested
person which must be received not later than 60 days after publication
of the rule in the Federal Register. The petition shall state that it
is a petition for reconsideration of a final rule, and shall contain an
explanation as to why compliance with the rule is not practicable, is
unreasonable, or is not in the public interest. If the petitioner
requests the consideration of additional facts, the petitioner shall
state the reason they were not presented to be treated as petitions for
rulemaking.
(b) Proceedings on petitions for reconsideration. The Secretary may
grant or deny, in whole or in part, any petition for reconsideration
without further proceedings. The Secretary may issue a final decision
on reconsideration without further proceeding, or may provide such
opportunity to submit comments or information and data as the Secretary
deems appropriate.
(c) Unless the Secretary determines otherwise, the filing of a
petition under this section does not stay the effectiveness of the rule
in question.
(d) Any party seeking to challenge any rule or regulation issued
under the Act, except orders issued under section 604 42 U.S.C. 5403, if
the challenge is brought before the expiration of the 60 day period set
out in paragraph (a) of this section, shall file a timely petition for
reconsideration under this section prior to seeking any other remedy.
24 CFR 3282.112 Rulemaking on the basis of cost information submitted.
Whenever the Secretary proposes to establish, amend or revoke a
standard on the basis of cost information submitted by a manufacturer in
opposition to any action of the Secretary under section 604 42 U.S.C.
5403, or any other provision of the Act, the Secretary shall publish a
notice of such proposed action and the reasons therefor in the Federal
Register at least 30 days in advance of making a final determination in
order to allow interested parties an opportunity to comment.
24 CFR 3282.113 Interpretative bulletins.
(a) When appropriate, the Secretary shall issue interpretative
bulletins interpreting the standards under the authority of 3280.1(b)
and (c) of this chapter or interpreting the provisions of this part.
Issuance of interpretative bulletins shall be treated as rulemaking
under this subpart unless the Secretary deems such treatment not to be
in the public interest and the interpretation is not required by 24 CFR
part 10 or any other applicable statutes or regulations to be treated as
rulemaking. All interpretative bulletins shall be indexed and made
available to the public at the Manufactured Housing Standards Division
and a copy of the index shall be published periodically in the Federal
Register.
(b) Resolution of disputes where an SAA or manufacturer disagrees
with a determination of a DAPIA under 3282.361 that a manufactured home
design does or does not conform to the standards or that a quality
assurance manual is or is not adequate.
24 CFR 3282.113 Subpart D -- Informal and Formal Presentations of Views, Hearings and Investigations
24 CFR 3282.151 Applicability and scope.
(a) This subpart sets out procedures to be followed when an
opportunity to present views provided for in the Act is requested by a
party entitled to one under the Act. Those situations arise whenever
the Secretary contemplates injunctive action under section 612(a) 42
U.S.C. 5410(a) of the Act, whenever the Secretary contemplates making an
administrative determination of imminent safety hazard, serious defect,
defect, or noncompliance under section 615(e), 42 U.S.C. 5414(e)
whenever there is a question as to who should bear the responsibility
for correction under section 615(g), 42 U.S.C. 5414(g) whenever the
Secretary contemplates rejecting a State plan under section 623(d), 42
U.S.C. 5422(d), and whenever the Secretary contemplates withdrawal of
approval of a State plan under section 623(f), 42 U.S.C. 5422(f).
Section 3282.152 provides for two types of procedures which may be
followed in these cases, one informal and nonadversary, and one more
formal and adversary. It also sets out criteria to govern which type of
procedure will be followed in particular cases.
(b) The procedures of 3282.152 also apply to:
(1) Proceedings held by the Secretary whenever the suspension or
disqualification of a primary inspection agency, which has been granted
final approval, is recommended under 3282.356 of these regulations, and
(2) Resolution of disputes where an SAA or manufacturer disagrees
with a determination of a DAPIA under 3282.361 that a manufactured home
design does or does not conform to the standards or that a quality
assurance manual is or is not adequate with a decision by an IPIA to red
tag or not to red tag or to provide or not to provide a certification
label for a manufactured home under 3282.362 when the IPIA believes
that the manufactured home does or does not conform to the standards.
(c) This subpart also sets out procedures which the Secretary may
follow in holding hearings and carrying out inspections and
investigations authorized by section 614(c) of the Act, 42 U.S.C.
5413(c), or otherwise. Generally, the provisions of 3282.153 apply to
these proceedings, though the procedures set out in 3282.152 may also
be followed, as may other procedures which the Secretary deems
appropriate.
(d) The procedures set out in 3282.152 shall also be followed
whenever State Administrative Agencies hold Formal or Informal
Presentations of Views under 3282.309.
(e) To the extent that these regulations provide for Formal or
Informal Presentations of Views for parties that would otherwise qualify
for hearings under 24 CFR part 24, the procedures of 24 CFR part 24
shall not be available and shall not apply.
(41 FR 19852, May 13, 1976, as amended at 51 FR 34467, Sept. 29,
1986)
24 CFR 3282.152 Procedures to present views and evidence.
(a) Policy. All Formal and Informal Presentations of Views under
this subpart shall be public, unless, for good cause, the Secretary
determines it is in the public interest that a particular proceeding
should be closed. If the Secretary determines that a proceeding should
be closed, the Secretary shall state and make publicly available the
basis for that determination.
(b) Request. Upon receipt of a request to present views and evidence
under the Act, the Secretary shall determine whether the proceeding will
be a Formal or an Informal Presentation of Views, and shall issue a
notice under paragraph (c) of this section.
(c) Notice. When the Secretary decides to conduct a Formal or an
Informal Presentation of Views under this section, the Secretary shall
provide notice as follows:
(1) Except where the need for swift resolution of the question
involved prohibits it, notice of a proceeding hereunder shall be
published in the Federal Register at least 10 days prior to the date of
the proceeding. In any case, notice shall be provided to interested
persons to the maximum extent practicable. Direct notice shall be sent
by certified mail to the parties involved in the hearing.
(2) The notice, whether published or mailed, shall include a
statement of the time, place and nature of the proceeding; reference to
the authority under which the proceeding will be held; a statement of
the subject matter of the proceeding, the parties and issues involved;
and a statement of the manner in which interested persons shall be
afforded the opportunity to participate in the hearing.
(3) The notice shall designate the official who shall be the
presiding officer for the proceedings and to whom all inquiries should
be directed concerning such proceedings.
(4) The notice shall state whether the proceeding shall be held in
accordance with the provisions of paragraph (f) -- (Informal
Presentation of Views) or paragraph (g) -- (Formal Presentation of
Views) of this section, except that when the Secretary makes the
determinations provided for in sections 623 (d) and (f) of the Act, the
requirements of paragraph (g) of this section shall apply. In
determining whether the requirements of paragraph (f) or those of
paragraph (g) of this section shall apply the Secretary shall consider
the following:
(i) The necessity for expeditious action;
(ii) The risk of injury to affected members of the public;
(iii) The economic consequences of the decisions to be rendered; and
(iv) Such other factors as the Secretary determines are appropriate.
(d) Department representative. If the Department is to be
represented by Counsel, such representation shall be by a Department
hearing attorney designated by the General Counsel.
(e) Reporting and transcription. Oral proceedings shall be
stenographically or mechanically reported and transcribed under the
supervision of the presiding officer, unless the presiding officer and
the parties otherwise agree, in which case a summary approved by the
presiding officer shall be kept. The original transcript or summary
shall be a part of the record and the sole official transcript, or
summary. A copy of the transcript or summary shall be available to any
person at a fee established by the Secretary, which fee the Secretary
may waive in the public interest. Any information contained in the
transcript or summary which would be exempt from required disclosure
under 3282.54 of these regulations may be protected from disclosure if
appropriate under that section upon a request for such protection under
3282.54(c).
(f) Informal presentation of views. (1) An Informal Presentation of
Views may be written or oral, and may include an opportunity for an oral
presentation, whether requested or not, whenever the Secretary concludes
that an oral presentation would be in the public interest, and so states
in the notice. A presiding officer shall preside over all oral
presentations held under this subsection. The purpose of any such
presentation shall be to gather information to allow fully informed
decision making. Informal Presentations of Views shall not be adversary
proceedings. Oral presentations shall be conducted in an informal but
orderly manner. The presiding officer shall have the duty and authority
to conduct a fair proceeding, to take all necessary action to avoid
delay, and to maintain order. In the absence of extraordinary
circumstances, the presiding officer at an oral Informal Presentation of
Views shall not require that testimony be given under an oath or
affirmation, and shall not permit either cross-examination of witnesses
by other witnesses or their representatives, or the presentation of
rebuttal testimony by persons who have already testified. The rules of
evidence prevailing in courts of law or equity shall not control the
conduct of oral Informal Presentations of Views.
(2) Within 10 days after an Informal Presentation of Views, the
presiding officer shall refer to the Secretary all documentary evidence
submitted, the transcript, if any, a summary of the issues involved and
information presented in the Informal Presentation of Views and the
presiding official's recommendations, with the rationale therefor. The
presiding officer shall make any appropriate statements concerning the
apparent veracity of witnesses or the validity of factual assertions
which may be within the competence of the presiding officer. The
Secretary shall issue a Final Determination concerning the matters at
issue within 30 days of receipt of the presiding officer's summary. The
Final Determination shall include:
(i) A statement of findings, with specific references to principal
supporting items of evidence in the record and conclusions, as well as
the reasons or bases therefor, upon all of the material issues of fact,
law, or discretion as presented on the record, and
(ii) An appropriate order. Notice of the Final Determination shall
be given in writing and transmitted by certified mail, return receipt
requested, to all participants in the presentation of views. The Final
Determination shall be conclusive, with respect to persons whose
interests were represented.
(g) Formal presentation of views. (1) A Formal Presentation of Views
is an adversary proceeding and includes an opportunity for the oral
presentation of evidence. All witnesses shall testify under oath or
affirmation, which shall be administered by the presiding officer.
Participants shall have the right to present such oral or documentary
evidence and to conduct such cross-examination as the presiding officer
determines is required for a full and true disclosure of facts. The
presiding officer shall receive relevant and material evidence, rule
upon offers of proof and exclude all irrelevant, immaterial or unduly
repetitious evidence. However, the technicalities of the rules of
evidence prevailing in courts of law or equity shall not control the
conduct of a Formal Presentation of Views. The presiding officer shall
take all necessary action to regulate the course of the Formal
Presentation of Views to avoid delay and to maintain order. The
presiding officer may exclude the attorney or witness from further
participation in the particular Formal Presentation of Views and may
render a decision adverse to the interests of the excluded party in his
absence.
(2) Decision. The presiding officer shall make and file an initial
written decision on the matter in question. The decision shall be filed
within 10 days after completion of the oral presentation. The decision
shall include: (i) A statement of findings of fact, with specific
references to principal supporting items of evidence in the record and
conclusions, as well as the reasons or bases therefor, upon all of the
material issues of law or discretion presented on the record, and (ii)
an appropriate order. The presiding officer's decision shall be final
and shall constitute the Final Determination of the Secretary unless
reversed or modified within 30 days by the Secretary. Notice of the
Final Determination shall be given in writing, and transmitted by
registered or certified mail, return receipt requested, to all
participants in the proceeding. The Final Determination shall be
conclusive with respect to persons whose interests were represented.
(41 FR 19852, May 13, 1976, as amended at 51 FR 34467, Sept. 29,
1986)
24 CFR 3282.153 Public participation in formal or informal presentation
of views.
(a) Any interested persons may participate, in writing, in any Formal
or Informal Presentation of Views held under the provisions of paragraph
(f) or (g) of 3282.152. The presiding officer shall, to the extent
practicable, consider any such written materials.
(b) Any interested person may participate in the oral portion of any
Formal or Informal Presentation of Views held under paragraphs (f) and
(g) of 3282.152 unless the presiding officer determines that
participation should be limited or barred so as not unduly to prejudice
the rights of the parties directly involved or unnecessarily to delay
the proceedings.
(51 FR 34468, Sept. 29, 1986)
24 CFR 3282.154 Petitions for formal or informal presentations of
views, and requests for extraordinary interim relief.
Any person entitled to a Formal or an Informal Presentation of Views
under paragraph (f) or paragraph (g) of 3282.152 in order to address
issues as provided for in 3282.151(a) may petition the Secretary to
initiate such a Presentation of Views. The petition may be accompanied
by a request that the Secretary provide appropriate interim relief
pending the issuance of the final determination or decision. No interim
relief will be granted unless there is a showing of extraordinary cause.
Upon receipt of a petition, the Secretary shall grant the petition and
issue the notice provided for in 3282.152(b) for Formal or Informal
Presentation of Views, and may grant, deny or defer decision on any
request for interim relief.
(51 FR 34468, Sept. 29, 1986)
24 CFR 3282.155 Investigations.
(a) In connection with a formal investigation or inquiry involving an
alleged or suspected violation or threatened violation of the Act or
rules and regulations, the Secretary may permit any person to file with
the Secretary a signed statement setting forth facts and circumstances
known to such person and relevant to the investigation or inquiry.
(b) Subpoenas in investigations. The Secretary may issue subpoenas
relating to any matter under investigation for any or all of the
following reasons:
(1) Requiring testimony to be taken by interrogatories or
depositions.
(2) Requiring the attendance and testimony of witnesses at a specific
time and place.
(3) Requiring access to, examination of, and the right to copy
documents, books, records, and papers.
(4) Requiring the production of documents, books, records, and papers
at a specific time and place.
(c) Investigational hearings. For the purpose of taking the
testimony of witnesses and receiving documents and other data relating
to any subject under investigation, hearings may be conducted by the
Secretary in the course of any investigation. These hearings shall be
stenographically or mechanically reported. Testimony of witnesses shall
be under oath or affirmation. Unless the Secretary determines otherwise
for good cause, these hearings shall be public.
(d) Rights of witnesses in investigations. (1) Any person compelled
to testify or to submit data in connection with any investigation shall
be entitled, on payment of lawfully prescribed costs, to purchase a copy
of any data submitted by him and of his own testimony as
stenographically or mechanically reported, except that in a nonpublic
proceeding the witness may for good cause be limited to inspection of
the official transcript of his testimony.
(2) Any witness summoned under section 614(c)(1) of the Act shall be
paid the same fees and mileage that are paid witnesses in the courts of
the United States.
(3) Any witness compelled to appear in person in an investigative
hearing may be accompanied, represented, and advised by counsel as
follows:
(i) Counsel for a witness may advise his client, in confidence, and
upon initiative of either himself or the witness, with respect to any
question asked of his client; and, if the witness refuses to answer a
question, the counsel may briefly state on the record if he has advised
his client not to answer the question and the legal grounds for such
refusal.
(ii) Where it is claimed that the testimony or other evidence sought
from a witness is outside the scope of the investigation, or it is
claimed that the witness is privileged to refuse to answer a question or
to produce other evidence, counsel for the witness may object on the
record to the question or requirement and may briefly and precisely
state the grounds therefor.
(iii) Objections interposed under the rules in this subpart will be
continuing objections throughout the course of the proceedings, and
repetitious or cumulative statement of an objection or of the grounds
therefor, in such cases, is unnecessary.
(iv) Motions challenging the authority of the Secretary to conduct
the investigation or the sufficiency or legality of the subpoena must be
addressed to the Secretary in advance of the proceeding. Copies of such
motions may be filed with the presiding official at the proceeding as
part of the record of the investigation, and argument in support thereof
may be allowed if it will not unduly delay the proceeding.
(v) Upon completion of the examination of a witness, counsel for the
witness may request that the presiding official permit the witness to
clarify any of his answers on the record in order that specified points
of ambiguity, equivocation, or incompleteness may be corrected. The
granting or denial of such request in whole or in part, shall be within
the sole discretion of the presiding official. However, the reasons for
any denial of a request shall be given by the presiding official and
shall be included in the record of the proceedings.
(vi) The presiding officer shall take all necessary action to
regulate the course of the proceeding to avoid delay and to maintain
order. If necessary to maintain order, the presiding officer may
exclude the attorney or witness from further participation in the
particular investigation and may render a decision adverse to the
interests of the excluded party in that party's absence.
(e) In the case of contumacy of the witness or the witness's refusal
to obey a subpoena or order of the Secretary, the United States district
court for the jurisdiction in which an inquiry is carried on may issue
an order requiring compliance therewith; and any failure to obey the
court may be punished by such court as a contempt thereof.
24 CFR 3282.156 Petitions for investigations.
(a) Any person may petition the Secretary in writing to open an
investigation into whether noncompliances, defects, serious defects, or
imminent safety hazards exist in manufactured homes. A petition shall
include the reasons that the petitioner believes warrant an
investigation, and it shall state any steps which have previously been
taken to remedy the situation. The petition shall include all
information known to the petitioner concerning the identity of
manufactured homes which may be affected and where those manufactured
homes were manufactured. The Secretary shall respond to petitions
concerning alleged imminent safety hazards and serious defects within 60
days and to petitions alleging the existence of defects or
noncompliances within 120 days.
(b) Any person may petition the Secretary in writing to undertake an
investigation for the purpose of determining whether a primary
inspection agency should be disqualified. The petition shall set out
all facts and information on which the petition is based and a detailed
statement of why such information justifies disqualification. The
Secretary shall consider such petitions when making determinations on
final acceptance and continued acceptance. The Secretary shall respond
to such petition within 120 days.
24 CFR 3282.156 Subpart E -- Manufacturer Inspection and Certification Requirements
24 CFR 3282.201 Scope and purpose.
(a) This subpart sets out requirements which must be met by
manufacturers of manufactured homes for sale to purchasers in the United
States with respect to certification of manufactured home designs,
inspection of designs, quality assurance programs, and manufactured home
production, and certification of manufactured homes. Other than
references and a general description of responsibilities, this subpart
does not set out requirements with respect to remedial actions or
reports which must be taken or filed under the Act and these
regulations.
(b) The purpose of this subpart is to require manufaacturers to
participate in a system of design approvals and inspections which serve
to assist them in assuring that manufactured homes which they
manufacture will conform to Federal standards. Such approvals and
inspections provide significant protection to the public by decreasing
the number of manufactured homes with possible defects in them, and
provide protection to manufacturers by reducing the number of instances
in which costly remedial actions must be undertaken after manufactured
homes are sold.
24 CFR 3282.202 Primary inspection agency contracts.
Each manufacturer shall enter into a contract or other agreement with
as many Design Inspection Primary Inspection Agencies (DAPIAs) as it
wishes and with enough Production Inspection Primary Inspection Agencies
(IPIAs) to provide IPIA services for each manufacturing plant as set out
in this subpart and in subpart H of this part. In return for the
services provided by the DAPIAs and IPIAs, each manufacturer shall pay
such reasonable fees as are agreed upon between the manufacturer and the
primary inspection agency or, in the case of a State acting as an
exclusive IPIA under 3282.3 such fees as may be established by the
State.
24 CFR 3282.203 DAPIA services.
(a) Each manufacturer shall have each manufactured home design and
each quality assurance manual which it intends to follow approved by a
DAPIA under 3282.361. The manufacturer is free to choose which DAPIA
will evaluate and approve its designs and quality assurance materials
manufacturer may obtain design and quality assurance manual approval
from a single DAPIA regardless of the number of plants in which the
design and quality assurance manual will be followed. A manufacturer
may also obtain approval for the same design and quality assurance
manual from more than one DAPIA. The choice of which DAPIA or DAPIAs to
employ is left to the manufacturer.
(b) The manufacturer shall submit to the DAPIA such information as
the DAPIA may require in order to carry out design approvals. This
information shall, except where the manufacturer demonstrates to the
DAPIA that it is not necessary, include the following:
(1) Construction drawings and/or specifications showing structural
details and layouts of frames, floors, walls and roofs, and chassis;
material specifications, framing details, door locations, etc., for each
floor plan proposed to be manufactured,
(2) Structural analysis and calculations, test data and/or other
accepted engineering practices used by the manufacturer to validate the
design,
(3) Complete heat loss calculations for each significant variation of
home design,
(4) Floor plans showing room arrangement and sizes, window sizes,
emergency exists and locations, locations of smoke detectors, fixed
appliance range hoods, and other standards related aspects of the
manufactured home that can be shown on the floor plans,
(5) Diagrams of the fuel supply system, potable water system and
drain, waste and vent systems. The diagrams shall specify the types of
materials used, types of fittings and methods of installing required
safety equipment,
(6) Wiring diagrams, including circuit allocation of electrical load
and branch circuit calculations, a table of the branch circuit
protection provided, the type of wiring used, and wiring methods,
(7) Details showing the design of air supply and return systems,
(8) Details of chassis construction, components, connections and
running gear including rating capacities of tires,
(9) A list of fixed and portable appliances furnished with the
manufactured home, including type of appliance, rating of appliance, and
applicable minimum and maximum performance ratings and/or energy
requirements,
(10) Detailed manufacturer installation instructions including
specifications and procedures for the erection and hook-up of the home
at its permanent location, and
(11) Reports of all tests that were run to validate the conformance
of the design to the standards.
(c) The manufacturer shall submit to the DAPIA such information as
the DAPIA may require in order to carry out quality assurance manual
approvals. At a minimum, this information shall include the quality
assurance manual for which approval is sought. That manual shall
include the manufacturer's quality assurance program, an organizational
chart showing the accountability, by position, of the manufacturer's
quality control personnel, a description of production tests and test
equipment required for compliance with the standards, a
station-by-station description of the manufacturing process, a list of
quality control inspections required by the manufacturer at each
station, and identification by title of each person who will be held
accountable for each quality control inspection.
(d) Manufacturers may be required to furnish supplementary
information to the DAPIA if the design information or the quality
assurance manual is not complete or if any information is not in
accordance with accepted engineering practice.
(e) When a manufacturer wishes to make a change in an approved design
or quality assurance manual, the manufacturer shall obtain the approval
of the DAPIA which approved the design or manual prior to production for
sale. The procedures for obtaining such approval are set out in
3282.361.
(f) The information to be submitted to a DAPIA under 3282.203 (b)
and (c) may be prepared by the manufacturer's staff or outside
consultants, including other DAPIAs. However, a DAPIA may not perform
design or quality assurance manual approvals for any manufacturer whose
design or manual has been created or prepared in whole or in part by
members of the DAPIA's organization or of any affiliated organization.
(g) Each manufacturer shall maintain a copy of the drawings,
specifications, and sketches from each approved design received from a
DAPIA under 3282.361(b)(4) in each plant in which manufactured homes
are being produced to the design. Each manufacturer shall also maintain
in each manufacturing plant a copy of the approved quality assurance
manual received from a DAPIA under 3282.361(c)(3) that is being
followed in the plant. These materials shall be kept current and shall
be readily accessible for use by the Secretary or other parties acting
under these regulations.
24 CFR 3282.204 IPIA services.
(a) Each manufacturer shall obtain the services of an IPIA as set out
in 3282.362 for each manufacturing plant operated by the manufacturer.
(b) The manufacturer shall make available to the IPIA operating in
each of its plants a copy of the drawings and specifications from the
DAPIA approved design and the quality assurance manual for that plant,
and the IPIA shall perform an initial factory inspection as set out in
3282.362(b). If the IPIA issues a deviation report after the initial
factory inspection, the manufacturer shall make any corrections or
adjustments which are necessary to conform with the DAPIA approved
designs and manuals. After the corrections required by the deviation
report are completed to the satisfaction of the IPIA, the IPIA shall
issue the certification report as described in 3282.362(b)(2). In
certain instances a DAPIA may provide the certification report. (See
3282.362) The manufacturer shall maintain a current copy of each
certification report in the plant to which the certification report
relates.
(c) After the certification report has been signed by the IPIA, the
manufacturer shall obtain labels from the IPIA and shall affix them to
completed manufactured homes as set out in 3282.362(c)(2). During the
initial factory certification, the IPIA may apply labels to manufactured
homes which it knows to be in compliance with the standards if it is
performing complete inspections of all phases of production of each
manufactured home and the manufacturer authorizes it to apply labels.
(d) During the course of production the manufacturer shall maintain a
complete set of approved drawings, specifications, and approved design
changes for the use of the IPIA's inspector and always available to that
inspector when in the manufacturing plant.
(e) If, during the course of production, an IPIA finds that a failure
to conform to a standard exists in a manufactured home in production,
the manufacturer shall correct the failure to confirm in any
manufactured homes still in the factory and held by distributors or
dealers and shall carry out remedial actions under 3282.404 and
3282.405 with respect to any other manufactured homes which may contain
the same failure to conform.
24 CFR 3282.205 Certification requirements.
(a) Every manufacturer shall make a record of the serial number of
the first manufactured homes in the sequence of production of the
assembly line on June 15, 1976 and a duly authorized representative of
the manufacturer shall certify that the first manufactured home and all
subsequent manufactured homes in the sequence of production manufactured
on or after June 15, 1976, have been constructed in accordance with the
Federal standards. The manufacturer shall furnish a copy of that
certification to the IPIA for the purpose of determining which
manufactured homes are subject to the notification and correction
requirements of subpart I of these regulations. If the manufacturer
does not have the services of an IPIA and is using transition
certification labels under 3282.207, it shall keep a certified record
of manufactured homes produced on or after June 15, 1976, and furnish
that record to the IPIA that performs the first plant approval or the
Secretary if the manufacturer discontinues production at the expiration
of the transition period.
(b) Every manufacturer of manufactured homes shall certify on the
data plate as set out in 3280.5 of chapter XX of 24 CFR and
3282.362(c)(3) that the manufactured home is designed to comply with the
Federal manufactured home construction and safety standards in force at
the time of manufacture in addition to providing other information
required to be completed on the data plate.
(c) Every manufacturer of manufactured homes shall furnish to the
dealer or distributor of each such manufactured home produced by such
manufacturer a certification that such manufactured home, to the best of
the manufacturer's knowledge and belief, conforms to all applicable
Federal construction and safety standards. Such certification shall be
in the form of the label provided by the IPIA under 3282.362(c)(2),
except when the manufacturer provides the label under 3282.207. Such
labels shall be affixed only at the end of the last stage of production
of the manufactured home.
(d) The manufacturer shall apply a label required or allowed by these
regulations only to manufactured homes that it knows by its inspections
to be in compliance with the standards. The manufacturer shall affix
the transition certification label allowed by 3282.207 only to
manufactured homes that enter the first stage of production on or after
June 15, 1976. The manufacturer may affix the label described in
3282.362(c)(2) to manufactured homes that enter the first stage of
production prior to June 15, 1976, only under all of the following
circumstances.
(1) No such labels are affixed to any manufactured homes prior to
June 15, 1976.
(2) The labels are obtained only through the procedures set forth in
subpart H of this part pursuant to the full range of services provided
by primary inspection agencies.
(3) The manufacturer keeps a record of all manufactured homes that
enter the first stage of production prior to June 15, 1976, and to which
labels are affixed under this provision.
(4) The manufacturer certifies the accuracy of the record required
under paragraph (d)(3) of this section and provides a copy of that
certification to the IPIA that provides production inspections in the
plant in which those manufactured homes are manufactured.
(5) The manufacturer pays the monitoring inspection fee required by
3282.210 for each manufactured home to which a label is affixed under
this provision.
(6) The manufacturer agrees that all manufactured homes that it
labels under this provision shall be subject to the requirements of the
Act and these regulations, and particularly to the remedial provisions
of subpart I of this part.
(7) The manufacturer obtains the agreement of the State in which the
manufactured homes are manufactured that the State will accept such
manufactured homes as if they had entered into the first stage of
production on or after June 15, 1976, including agreement by the State
not to require any State label for such manufactured homes and not to
require any inspections or charge any fees that would not be allowed
with respect to manufactured homes that enter the first stage of
production on or after June 15, 1976.
(8) No other label relating to any aspect of the manufactured home
covered by the Federal standards is affixed to the manufactured homes.
(41 FR 19852, May 13, 1976, as amended at 41 FR 24970, June 21, 1976)
24 CFR 3282.206 Disagreement with IPIA or DAPIA.
Whenever a manufacturer disagrees with a finding by a DAPIA or an
IPIA acting in accordance with subpart H of this part, the manufacturer
may request a Formal or Informal Presentation of Views as provided in
3282.152. The manufacturer shall not, however, produce manufactured
homes pursuant to designs which have not been approved by a DAPIA or
produce manufactured homes which the relevant IPIA believes not to
conform to the standards unless and until:
(a) The Secretary determines that the manufacturer is correct in
believing the design of the manufactured home conforms to the standards;
or
(b) extraordinary interim relief is granted under 3282.154; or
(c) the DAPIA or IPIA otherwise resolves the disagreement. These
prohibitions shall not apply to manufacturers acting under the
transition certification program set out in 3282.207.
(41 FR 19852, May 13, 1976, as amended at 51 FR 34468, Sept. 29,
1986)
24 CFR 3282.207 Transition certification program.
(a) If a manufacturer cannot contract for the services of a DAPIA or
IPIA such manufacturer shall notify the Secretary and any State with an
approved SAA into which it intends to ship manufactured homes that it
will apply transition certification labels under this section to a
specified number of manufactured homes for a specified period of time
until it can obtain the necessary PIA services. The use of transition
certification labels shall be limited to the time required to obtain PIA
services, and in no case shall it extend beyond 90 days after the
effective date of the standards. The manufacturer may continue to use
certification labels during this 90 day period only if it is acting
diligently to obtain necessary PIA services as quickly as possible. The
Secretary may monitor manufacturer's performance under this section.
(b) Manufactured homes bearing a transition certificate label may be
subject to such reasonable inspections and reasonable inspection fees as
States may require, though no State may require any design approval or
require a manufactured home to meet a standard other than the Federal
standard. A State may prohibit the entry into or sale in the State of a
manufactured home certified under this subsection if the State has
inspected the manufactured home and found a failure to conform to the
Federal standards. If a State, through inspections under this
subsection, finds that a manufacturer or a particular plant is
consistently producing homes which fail to conform to the standard, the
State shall so inform the Secretary, who shall take appropriate action;
including seeking injunctive relief to halt production, if necessary. A
State may not prohibit entry into or sale in the State of a manufactured
home unless the State has inspected that home and found a failure to
conform.
(c) A manufacturer acting under this section is not subject to the
labeling provisions of 3282.362(c)(2) of this part or 3280.7 of this
chapter.
(d) Transition certification labels shall be handled as follows:
(1) The transition certification label shall be 1 1/2 in. by 4 in.
in size and shall either be typed on a piece of paper hermetically
sealed between two pieces of plastic with a 1/4 in. border of clear
plastic around the paper, or printed on adhesive backed aluminum foil.
The paper sealed in plastic shall be permanently attached to the
manufactured home by means of 4 blind rivets, drive screws, or other
means that render it difficult to remove without being defaced. The
adhesive backed foil shall be permanently attached to the manufactured
home by placing it on a surface which is suitable for the adhesive. The
label number shall be a sequential 4 digit number which the manufacturer
shall type sequentially on each label used.
(2) The transition certification label shall be supplied by the
manufacturer and located as specified in 3282.362 (c)(2)(i)(E).
(3) Transition certification labels that are damaged, destroyed, or
otherwise made illegible or removed may be replaced by the manufacturer
with new transition certification labels of a different serial number.
They shall not be replaced by labels of the type described in
3282.361(c).
(4) The wording of the transition label shall be as follows:
As evidenced by this Label No. XXX (the manufacturer's name)
certifies that, to the best of his knowledge and belief, this
manufactured home is in compliance with the federal manufactured home
construction and safety standards in effect on the date of manufacture.
See data plate.
(e) The manufacturer shall furnish a data plate as specified in
3282.362(c)(3), except that after ''design approval by'', the
manufacturer shall insert the term ''none''.
(f) The manufacturer acting under this section shall submit copies of
designs to the Secretary or the Secretary's agent. Authority section
625 of the National Manufactured Housing Construction and Safety
Standards Act, 42 U.S.C. 5424, and section 7(d), Department of Housing
and Urban Development Act, 42 U.S.C. 3535(d).
(41 FR 19852, May 13, 1976, as amended at 41 FR 24971, June 21, 1976)
24 CFR 3282.208 Remedial actions -- general description.
(a) Notification. A manufacturer may be required to provide formal
notice to manufactured home owners and dealers, as set out in subpart I
of this part, if the manufacturer, the Secretary, or a State
Administrative Agency determines under that subpart that an imminent
safety hazard, serious defect, defect, or noncompliance exists or may
exist in a manufactured home produced by that manufacturer.
(b) Correction. A manufacturer may be required to correct imminent
safety hazards and serious defects which the manufacturer or the
Secretary determines under subpart I exist in manufactured homes
produced by the manufacturer. This correction would be carried out in
addition to the sending of formal notice as described in paragraph (a)
of this section.
(c) Cooperation. The manufacturer shall be responsible for working
with the DAPIA, IPIA, any SAA, the Secretary, and the Secretary's agent
as necessary in the course of carrying out investigations and remedial
actions under subpart I.
(d) Avoidance of formalities. The provisions for notification and
required correction outlined in paragraphs (a) and (b) of this section
and described more fully in subpart I may be waived or avoided in
certain circumstances under that subpart.
24 CFR 3282.209 Report requirements.
The manufacturer shall submit reports to the PIAs, SAAs, and the
Secretary as required by subpart L of these regulations.
24 CFR 3282.210 Payment of monitoring fee.
(a) Each manufacturer shall pay the monitoring fee established under
3282.307 and 3282.454 for each transportable section of each
manufactured housing unit that it manufactures under the Federal
standards.
(b) The monitoring fee shall be paid in the form of a check made
payable to the Secretary or the Secretary's agent. The manufacturer
shall give to the IPIA (or to any other person or agency designated in
writing by the Secretary) the required check in the amount of the number
of labels, as required by 3282.365, multiplied by the amount of the fee
per transportable section of each manufactured housing unit.
(50 FR 28398, July 12, 1985)
24 CFR 3282.211 Record of purchasers.
(a) Information requirements for purchasers. (1) Every manufacturer
of manufactured homes shall, for each manufactured home manufactured
under the Federal standards, provide with the manufactured home a
booklet containing at least 3 detachable cards as described in paragraph
(a)(2) of this section. On the front of the booklet, in bold faced
type, shall be printed the following language:
''Keep this booklet with your manufactured home. Title VI of the
Housing and Community Development Act of 1974 provides you with
protection against certain construction and safety hazards in your
manufactured home. To help assure your protection, the manufacturer of
your manufactured home needs the information which these cards, when
completed and mailed, will supply. If you bought your home from a
dealer, please be sure that your dealer has completed and mailed a card
for you. If you acquired your home from someone who is not a dealer,
you should promptly fill out and send a card to the manufacturer. It is
important that you keep this booklet and give it to any person who buys
the manufactured home from you.''
(2) The detachable cards shall contain blanks for the following
information:
(i) Name and address of the dealer or other person selling the
manufactured home to the purchaser;
(ii) Name and complete mailing address of the manufactured home
purchaser;
(iii) Address where the manufactured home will be located, if not the
same as item (a)(2)(ii) of this section.
(iv) Date of sale to the purchaser;
(v) Month, day and year of manufacture;
(vi) Identification number of the manufactured home;
(vii) Model and/or type designation of the manufactured home as
provided by the manufacturer; and
(viii) A designation of the zones for which the manufactured home is
equipped, as set forth in 3280.305 in this title.
Additionally, the cards shall have the name and address of the
manufacturer printed clearly on the reverse side and shall contain
adequate postage or business reply privileges to ensure return to the
manufacturer. The manufacturer shall have the responsibility for filing
in the blanks on the cards for paragraphs (a)(2) (v), (vi), (vii), and
(viii) of this section.
(3) The manufacturer shall maintain all cards received so that the
manufacturer has a readily accessible record of the current purchaser or
owner and the current address of all manufactured homes manufactured by
it for which a card has been received.
24 CFR 3282.211 Subpart F -- Dealer and Distributor Responsibilities
24 CFR 3282.251 Scope and purpose.
(a) This subpart sets out the responsibilities which shall be met by
distributors and dealers with respect to manufactured homes manufactured
after the effective date of the standards for sale to purchasers in the
United States. It prohibits the sale, lease, or offer for sale or lease
of manufactured homes known by the distributor or dealer not to be in
conformance with the standards, and it includes responsibilities for
maintaining certain records and assisting in the gathering of certain
information.
(b) The purpose of this subpart is to inform distributors and dealers
when they may sell manufactured homes, when they are prohibited from
selling manufactured homes, and what they may do in order to prepare a
manufactured home for sale if it is not in conformance with the
standards.
(c) For purposes of this part, any manufacturer or distributor who
sells, leases, or offers for sale or lease a manufactured home to a
purchaser shall be a dealer for purposes of that transaction.
24 CFR 3282.252 Prohibition of sale.
(a) No distributor or dealer shall make use of any means of
transportation affecting interstate or foreign commerce or the mails to
sell, lease, or offer for sale or lease in the United States any
manufactured home manufactured on or after the effective date of an
applicable standard unless:
(1) There is affixed to the manufactured home a label certifying that
the manufactured home conforms to applicable standards as required by
3282.205(c), and
(2) The distributor or dealer, acting as a reasonable distributor or
dealer, does not know that the manufactured home does not conform to any
applicable standards.
(b) This prohibition applies to any affected manufactured homes until
the completion of the entire sales transaction. A sales transaction
with a purchaser is considered completed when all the goods and services
that the dealer agreed to provide at the time the contract was entered
into have been provided. Completion of a retail sale will be at the
time the dealer completes set-up of the manufactured home if the dealer
has agreed to provide the set-up, or at the time the dealer delivers the
home to a transporter, if the dealer has not agreed to transport or set
up the manufactured home, or to the site if the dealer has not agreed to
provide set-up.
(c) This prohibition of sale does not apply to manufactured homes
which are placed in production prior to the effective date of the
standards, and it does not apply to ''used'' manufactured homes which
are being sold or offered for sale after the first purchase in good
faith for purposes other than the resale.
24 CFR 3282.253 Removal of prohibition of sale.
(a) If a distributor or dealer has a manufactured home in its
possession or a manufactured home with respect to which the sales
transaction has not been completed, and the distributor or dealer,
acting as a reasonable distributor or dealer, knows as a result of
notification by the manufacturer or otherwise that the manufactured home
contains a failure to conform or imminent safety hazard, the distributor
or dealer may seek the remedies available to him under 3282.415.
(b) When, in accordance with 3282.415, a manufacturer corrects a
failure to conform to the applicable standard or an imminent safety
hazard, the distributor or dealer, acting as a reasonable distributor or
dealer, may accept the remedies provided by the manufacturer as having
corrected the failure to conform or imminent safety hazard. The
distributor or dealer, therefore, may sell, lease, or offer for sale or
lease any manufactured home so corrected by the manufacturer.
(c) When a distributor or dealer is authorized by a manufacturer to
correct a failure to conform to the applicable standard or an imminent
safety hazard and completes the correction in accordance with the
manufacturer's instructions, the distributor or dealer may sell, or
lease or offer for sale or lease the manufactured home in question,
provided that the distributor or dealer, acting as a reasonable
distributor or dealer knows that the manufactured home conforms to the
standards. A distributor or dealer and a manufacturer, at the
manufacturer's option, may agree in advance that the distributor or
dealer is authorized to make such corrections as the manufacturer
believes are within the expertise of the dealer.
(d) If the corrections made under paragraphs (b) and (c) of this
section do not bring the manufactured home into conformance or correct
the imminent safety hazard, the provisions of 3282.415 will continue in
effect prior to completion of the sales transaction.
24 CFR 3282.254 Distributor and dealer alterations.
(a) If a distributor or dealer alters a manufactured home in such a
way as to create an imminent safety hazard or to create a condition
which causes a failure to conform with applicable Federal standards, the
manufactured home affected may not be sold, leased, or offered for sale
or lease.
(b) After correction by the distributor or dealer of the failure to
conform or imminent safety hazard, the corrected manufactured home may
be sold, leased, or offered for sale or lease.
(c) Distributors and dealers shall maintain complete records of all
alterations made under paragraphs (a) and (b) of this section.
24 CFR 3282.255 Completion of information card.
(a) Whenever a distributor or dealer sells a manufactured home
subject to the standards to a purchaser, the distributor or dealer shall
fill out the card with information provided by the purchaser and shall
send the card to the manufacturer. (See 3282.211.)
(b) Whenever a distributor or dealer sells a manufactured home to an
owner which was originally manufactured under the standards, the
distributor or dealer shall similarly use one of the detachable cards
which was originally provided with the manufactured home. If such a
card is no longer available, the distributor or dealer shall obtain the
information which the card would require and send it to the manufacturer
of the manufactured home in an appropriate format.
24 CFR 3282.256 Distributor or dealer complaint handling.
(a) When a distributor or dealer believes that a manufactured home in
its possession which it has not yet sold to a purchaser contains an
imminent safety hazard, serious defect, defect, or noncompliance, the
distributor or dealer shall refer the matter to the manufacturer for
remedial action under 3282.415. If the distributor or dealer is not
satisfied with the action taken by the manufacturer, it may refer the
matter to the SAA in the state in which the manufactured home is
located, or to the Secretary if there is no such SAA.
(b) Where a distributor or dealer receives a consumer complaint or
other information concerning a manufactured home sold by the distributor
or dealer, indicating the possible existence of an imminent safety
hazard, serious defect, defect, or noncompliance in the manufactured
home, the distributor or dealer shall refer the matter to the
manufacturer.
24 CFR 3282.256 Subpart G -- State Administrative Agencies
24 CFR 3282.301 General -- scope.
This subpart sets out procedures to be followed and requirements to
be met by States which wish to participate as State Administrative
Agencies (SAA) under the Federal standards enforcement program.
Requirements relating to States which wish to participate as primary
inspection agencies under the Federal standards enforcement program are
set out in subpart H of this part. Requirements which States must meet
in order to receive full or conditional approval as SAAs and the
responsibilities of such agencies are set out in 3282.302. Reporting
requirements for approved and conditionally approved SAAs are set out in
subpart L.
24 CFR 3282.302 State plan.
A State wishing to qualify and act as a SAA under this subpart shall
make a State Plan Application under this section. The State Plan
Application shall be made to the Director, Manufactured Housing
Standards Division, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410, and shall include:
(a) An original and one copy of a cover sheet which shall show the
following:
(1) The name and address of the State agency designated as the sole
agency responsible for administering the plan throughout the State,
(2) The name of the administrator in charge of the agency,
(3) The name, title, address, and phone number of the person
responsible for handling consumer complaints concerning standards
related problems in manufactured homes under subpart I of this part,
(4) A list of personnel who will carry out the State plan,
(5) The number of manufactured home manufacturing plants presently
operating in the State,
(6) The estimated total number of manufactured homes manufactured in
the State per year,
(7) The estimated total number of manufactured homes set up in the
State per year, and
(8) A certification signed by the administrator in charge of the
designated State agency stating that, if it is approved by the
Secretary, the State plan will be carried out in full, and that the
regulations issued under the Act shall be followed,
(b) An original and one copy of appropriate materials which:
(1) Demonstrate how the designated State agency shall ensure
effective handling of consumer complaints and other information referred
to it that relate to noncompliances, defects, serious defects or
imminent safety hazards as set out in subpart I of this part, including
the holding of Formal and Informal Presentations of Views and the
fulfilling of all other responsibilities of SAAs as set out in this
subpart G,
(2) Provide that personnel of the designated agency shall, under
State law or as agents of HUD, have the right at any reasonable time to
enter and inspect all factories, warehouses, or establishments in the
State in which manufactured homes are manufactured,
(3) Provide for the imposition under State authority of civil and
criminal penalties which are identical to those set out in section 611
of the Act, 42 U.S.C. 5410 except that civil penalties shall be payable
to the State rather than to the United States,
(4) Provide for the notification and correction procedures under
subpart I of this part where the State Administrative Agency is to act
under that subpart by providing for and requiring approval by the State
Administrative Agency of the plan for notification and correction
described in 3282.410, including approval of the number of units that
may be affected and the proposed repairs, and by providing for approval
of corrective actions where appropriate under subpart I,
(5) Provide for oversight by the SAA of: (i) Remedial actions
carried out by manufacturers for which the SAA approved the plan for
notification or correction under 3282.405, or 3282.407, or for which
the SAA has waived formal notification under 3282.405 or 3282.407, and
(ii) a manufacturer's handling of consumer complaints and other
information under 3282.404 as to plants located within the State,
(6) Provide for the setting of monitoring inspection fees in
accordance with guidelines established by the Secretary and provide for
participation in the fee distribution system set out in 3282.307.
(7) Contain satisfactory assurances in whatever form is appropriate
under State law that the designated agency has or will have the legal
authority necessary to carry out the State plan as submitted for full or
conditional approval,
(8) Contain satisfactory assurances that the designated agency has or
will have, in its own staff or provided by other agencies of the state
or otherwise, the personnel, qualified by education or experience
necessary to carry out the State plan,
(9) Include the resumes of administrative personnel in policy making
positions and of all inspectors and engineers to be utilized by the
designated agency in carrying out the State plan,
(10) Include a certification that none of the personnel who may be
involved in carrying out the State plan in any way are subject to any
conflict of interest of the type discussed in 3282.359 or otherwise,
except that members of councils, committees, or similar bodies providing
advice to the designated agency are not subject to the requirement,
(11) Include an estimate of the cost to the State of carrying out all
activities called for in the State plan, under this section and
3282.303, which estimate shall be broken down by particular function and
indicate the correlation between the estimate and the number of
manufactured homes manufactured in the State and the number of
manufactured homes imported into the State, and the relationship of
these factors to any fees currently charged and any fees charged during
the preceding two calendar years. A description of all current and past
State activities with respect to manufactured homes shall be included
with this estimate.
(12) Give satisfactory assurances that the State shall devote
adequate funds to carrying out its State plan,
(13) Indicate that State Law requires manufacturers, distributors,
and dealers in the State to make reports pursuant to section 614 of the
Act 42 U.S.C. 5413 and this chapter of these regulations in the same
manner and to the same extent as if the State plan were not in effect,
(14) Provide that the designated agency shall make reports to the
Secretary as required by subpart L of this part in such form and
containing such information as the Secretary shall from time to time
require,
(c) A state plan may be granted conditional approval if all of the
requirements of 3282.302 (a) and (b) are met except paragraphs (b)(2),
(b)(3), (b)(6) or (b)(13). When conditional approval is given, the
state shall not be considered approved under section 623 of the Act, 42
U.S.C. 5422, but it will participate in all phases of the program as
called for in its State plan. Conditional approval shall last for a
maximum of five years, by which time all requirements shall be met for
full approval, or conditional approval shall lapse. However, the
Secretary may for good cause grant an extension of conditional approval
upon petition by the SAA.
(d) If a State wishes to discontinue participation in the Federal
enforcement program as an SAA, it shall provide the Secretary with a
minimum of 90 days notice.
(e) A State which wishes to act as an exclusive IPIA under 3282.352
shall so indicate in its State plan, and shall include in the
information provided under paragraph (b)(11) of this section, the fee
schedule for its activities as an IPIA and the relationship between the
proposed fees and the other information provided under that subsection.
The State shall submit to the Secretary before June 15, 1976, a
Statement of its intent to act as an exclusive IPIA. It shall also
submit its State Plan Application no later than July 15, 1976. The
State shall also demonstrate in its State Plan Application that it has
the present capability to act as an IPIA for all plants operating in the
State. Where the intent to act as an exclusive IPIA is not indicated by
June 15, 1976, the State may not act as an exclusive IPIA act for three
years, from that date. A state so precluded may apply for exclusive
IPIA status as of June 15, 1979. Where the State does not demonstrate
that it has the present capability to act as an exclusive IPIA the State
shall also be so precluded, unless the Secretary determines in the
public interest that the State has an acceptable plan for meeting this
requirement, in which case the State may act as an exclusive IUIA only
when it has the required capability. If the Secretary determines that
the fees to be charged by a State acting as an IPIA are unreasonable,
the Secretary shall not grant the State status as an exclusive IPIA.
(41 FR 19852, May 13, 1976, as amended at 47 FR 5888, Feb. 9, 1982;
51 FR 34468, Sept. 29, 1986)
24 CFR 3282.303 State plan -- suggested provisions.
The following are not required to be included in the State plan, but
they are urged as necessary to provide full consumer protection and
assurances of manufactured home safety:
(a) Provision for monitoring of dealers' lots within the State for
transit damage, seal tampering, and dealer performance generally,
(b) Provision of approvals of all alterations made to certified
manufactured homes by dealer in the State. Under this program, the
State would assure that alterations did not result in the failure of the
manufactured home to comply with the standards.
(c) Provision for monitoring of the installation of manufactured
homes set up in the State to assure that the homes are properly
installed and, where necessary, tied down,
(d) Provision for inspection of used manufactured homes and
requirements under State authority that used manufactured homes meet a
minimal level of safety and durability at the time of sale, and,
(e) Provision for regulation of manufactured home transportation over
the road to the extent that such regulation is not preempted by Federal
authority.
24 CFR 3282.304 Inadequate State plan.
If the Secretary determines that a State plan submitted under this
subpart is not adequate, the designated State agency shall be informed
of the additions and corrections required for approval. A revised State
plan shall be submitted within 30 days of receipt of such determination.
If the revised State plan is inadequate or if the State fails to
resubmit within the 30 day period or otherwise indicates that it does
not intend to change its State plan as submitted, the Secretary shall
notify the designated State agency that the State plan is not approved
and that it has a right to a hearing on the disapproval in accordance
with subpart D of this part.
24 CFR 3282.305 State plan approval.
The Secretary's approval or conditional approval of a State plan
Application shall qualify that State to perform the functions for which
it has been approved.
24 CFR 3282.306 Withdrawal of State approval.
The Secretary shall, on the basis of reports submitted by the State,
and on the basis of HUD monitoring, make a continuing evaluation of the
manner in which each State is carrying out its State plan and shall
submit the reports of such evaluation to the appropriate committees of
the Congress. Whenever the Secretary finds, after affording due notice
and opportunity for a hearing in accordance with subpart D of this part,
that in the administration of the State program there is a failure to
comply substantially with any provision of the State plan or that the
State plan has become inadequate, the Secretary shall notify the State
of withdrawal of approval or conditional approval of the State program.
The State program shall cease to be in effect at such time as the
Secretary may establish.
24 CFR 3282.307 Monitoring inspection fee establishment and
distribution.
(a) Each approved State shall establish a monitoring inspection fee
in an amount required by the Secretary. This fee shall be an amount
paid by each manufactured home manufacturer in the State for each
transportable section of each manufactured housing unit produced by the
manufacturer in that State. In non-approved and conditionally-approved
States, the fee shall be set by the Secretary.
(b) The monitoring inspection fee shall be paid by the manufacturer
to the Secretary or to the Secretary's Agent, who shall distribute a
portion of the fees collected from all manufactured home manufacturers
among the approved and conditionally-approved States in accordance with
an agreement between the Secretary and the States and based upon the
following formula:
(1) $9.00 of the monitoring inspection fee collected for each
transportable section of each new manufactured housing unit that, after
leaving the manufacturing plant, is first located on the premises of a
dealer, distributor, or purchaser in that State; plus
(2) $2.50 of the monitoring inspection fee collected for each
transportable section of each new manufactured housing unit produced in
a manufacturing plant in that State.
(c) A portion of the monitoring inspection fee collected also shall
be distributed by the Secretary or the Secretary's Agent based on the
extent of participation of the State in the Joint Team Monitoring
Program set out in 3282.308.
(d) To assure that a State devotes adequate funds to carry out its
State Plan, a State may impose an additional reasonable inspection fee
to offset expenses incurred by that State in conducting inspections.
Such fee shall not exceed that amount which is the difference between
the amount of funds distributed to the State as provided in paragraph
(b) of this section and the amount necessary to cover the costs of
inspections. Such fee shall be part of the State Plan pursuant to
3282.302(b) (11) and (12) and shall be subject to the approval of the
Secretary pursuant to 3282.305.
(e) The Secretary may establish by notice in the Federal Register a
monitoring inspection fee which is to be paid by manufacturers for each
transportable section of each manufactured housing unit manufactured in
nonapproved and conditionally approved States as described in 3282.210.
To determine the amount of the inspection fee to be paid for each
transportable section of each manufactured home, the Secretary shall
divide the (estimated) number of transportable sections of manufactured
homes (based on recent industry production figures) into the anticipated
aggregate cost of conducting the inspection program in the foreseeable
feature. The time period selected for projecting the Department's
inspection-related costs and number of transportable sections need not
always be the same, but must be for a period of sufficient duration to
provide for access to reasonable underlying data. To determine the
aggregate cost of conducting the inspection program, the Secretary shall
calculate the sum necessary to support:
(1) Inspection-related activities of State Administrative Agencies;
(2) Inspection-related activities performed by the Department of
Housing and Urban Development;
(3) Inspection-related activities performed by monitoring inspection
contractors;
(4) Miscellaneous activities involving the performance of
inspection-related activities by the Department, including on-site
inspections on an ad hoc basis; and
(5) Maintenance of adequate funds to offset short-term fluctuations
in costs that do not warrant revising the fee under the authority of
this section.
(f) The Secretary may at any time revise the amount of the fees
established under paragraph (a) or (e) of this section by placing a
notice of the amount of the revised fee in the Federal Register.
(50 FR 28398, July 12, 1985, as amended at 56 FR 65186, Dec. 16,
1991)
24 CFR 3282.308 State participation in monitoring of primary inspection
agencies.
(a) An SAA may provide personnel to participate in joint team
monitoring of primary inspection agencies as set out in subpart J. If
an SAA wishes to do so, it must include in its State plan a list of what
personnel would be supplied for the teams, their qualifications, and how
many person-years the State would supply. All personnel will be subject
to approval by the Secretary or the Secretary's agent. A person-year is
2,080 hours of work.
(b) If an SAA wishes to monitor the performance of primary inspection
agencies acting within the State, it must include in its State plan a
description of how extensively, how often, and by whom this will be
carried out. This monitoring shall be coordinated by the Secretary, or
the Secretary's agent with monitoring carried out by joint monitoring
teams, and in no event shall an SAA provide monitoring where the State
is also acting as a primary inspection agency.
24 CFR 3282.309 Formal and informal presentations of views held by
SAAs.
(a) When an SAA is the appropriate agency to hold a Formal or
Informal Presentation of Views under 3282.407 of subpart I, the SAA
shall follow the procedures set out in 3282.152 and 3282.153, with the
SAA acting as the Secretary otherwise would under that section. Where
3282.152 requires publication of notice in the Federal Register, the SAA
shall, to the maximum extent possible, provide equivalent notice
throughout the State by publication in the newspaper or newspapers
having State-wide coverage or otherwise. The determination of whether
to provide an Informal Presentation of Views under 3282.152(f), or a
Formal Presentation of Views under 3282.152(g), is left to the SAA.
(b) Notwithstanding the provisions of 3282.152(f)(2) and (g)(2)
relating to the conclusive effect of a final determination, any party,
in a proceeding held at an SAA under this section, including
specifically the owners of affected manufactured homes, States in which
affected manufactured homes are located, consumer groups representing
affected owners and manufacturers (but limited to parties with similar
substantial interest) may appeal to the Secretary in writing any Final
Determination by an SAA which is adverse to the interest of that party.
This appeal on the record shall be made within 30 days of the date on
which the Final Determination was made by the SAA.
(41 FR 19852, May 13, 1976, as amended at 51 FR 34468, Sept. 29,
1986)
24 CFR 3282.309 Subpart H -- Primary Inspection Agencies
24 CFR 3282.351 General.
(a) This subpart sets out the requirements which must be met by
States or private organizations which wish to qualify as primary
inspection agencies under these regulations. It also sets out the
various functions which will be carried out by primary inspection
agencies.
(b) There are four basic functions which are performed by primary
inspection agencies:
(1) Approval of the manufacturer's manufactured home design to assure
that it is in compliance with the standard;
(2) approval of the manufacturer's quality control program to assure
that it is compatible with the design;
(3) Approval of the manufacturer's plant facility and manufacturing
process to assure that the manufacturer can perform its approved quality
control program and can produce manufactured homes in conformance with
its approved design, and
(4) Performance of ongoing inspections of the manufacturing process
in each manufacturing plant to assure that the manufacturer is
continuing to perform its approved quality control program and, with
respect to those aspects of manufactured homes inspected, is continuing
to produce manufactured homes in performance with its approved designs
and in conformance with the standards (see 3282.362(c)(1)).
(c) There are two types of primary inspection agencies which perform
these functions:
(1) Those which approve designs and quality control programs (Design
Approval Primary Inspection Agencies -- DAPIAs) and
(2) Those which approve plants and perform ongoing inspections in the
manufacturing plants (Production Inspection Primary Inspection Agencies
-- IPIAs).
(d) States and private organizations whose submissions under this
subpart are acceptable shall be granted provisional acceptance. Final
acceptance shall be conditioned upon adequate performance, which will be
determined through monitoring of the actions of the primary inspection
agencies. Monitoring of all primary inspection agencies shall be
carried out as set out in subpart J. HUD accepted agencies can perform
DAPIA functions for any manufacturer in any State and IPIA functions in
any State except those in which the State has been approved to act as
the exclusive IPIA under 3282.352.
(e) Primary inspection agencies approved under this subpart may
contract with manufactured home manufacturers (see 3282.202) to provide
the services set out in this subpart. Any PIA which charges fees which
are excessive in relation to the services rendered shall be subject to
disqualification under 3282.356.
24 CFR 3282.352 State exclusive IPIA functions.
(a) Any State which has an approved State Administrative Agency may,
if accepted as an IPIA, act as the exclusive IPIA within the State. A
State which acts as an IPIA but is not approved as an SAA may not act as
the exclusive IPIA in the State. A State which acts as an exclusive
IPIA shall be staffed to provide IPIA services to all manufacturers
within the state and may not charge unreasonable fees for those
services.
(b) States which wish to act as exclusive IPIAs shall apply for
approval to do so in their State plan applications. They shall specify
the fees they will charge for IPIA services and shall submit proposed
fee revisions to the Secretary prior to instituting any change in fees.
If at any time the Secretary finds that those fees are not commensurate
with the fees generally being charged for similar services, the
Secretary will withhold or revoke approval to act as an exclusive IPIA.
States acting as DAPIAs and also as exclusive IPIAs shall establish
separate fees for the two functions and shall specify what additional
services (such as approval of design changes and full time inspections)
these fees cover. As provided in 3282.302(b)(11), each State shall
submit fee schedules for its activities and, where appropriate, the fees
presently charged for DAPIA and IPIA services, and any fees charged for
DAPIA and IPIA services during the preceding two calendar years.
(c) A State's status as an exclusive IPIA in the State shall commence
upon approval of the State Plan Application and acceptance of the
State's submission under 3282.355, except as provided herein. Where a
State was approved to provide IPIA functions under the Title I program,
the State's status as an exclusive IPIA shall commence on the date the
State submits to the Secretary a statement that it intends to act as an
exclusive IPIA, but only if affirms that the State has the present
capacity to provide IPIA services for all manufacturing plants in the
State. If the State indicates its desire to act as an exclusive IPIA,
though it does not have the present capacity to do so, but affirms that
it will within 90 days have the capacity to provide IPIA services to all
manufacturers in the State, then the State's status as an exclusive IPIA
shall commence on the date the State affirms it will have such capacity.
Continuation of such a State's status as an exclusive IPIA is
conditioned upon submittal of the State Plan Application as required by
3282.302(e) and upon final approval of that application. It is also
conditioned upon the State adequately fulfilling its affirmation to
provide IPIA services to all manufacturing plants in the State. Where a
private organization accepted or provisionally accepted as an IPIA under
this subpart operating in a manufacturing plant within the State on the
date the State's status as an exclusive IPIA would commence under this
paragraph, the organization may provide IPIA services in that plant for
90 days after that date.
24 CFR 3282.353 Submission format.
States and private organizations which wish to act as primary
inspection agencies shall submit to the Director, Manufactured Housing
Standards Division, Department of Housing and Urban Development, 451
Seventh St. SW., Washington, DC 20410, an application which includes
the following:
(a) A cover sheet which shall show the following:
(1) Name and address of the party making the application;
(2) The capacity (DAPIA, IPIA) in which the party wishes to be
approved to act;
(3) A list of the key personnel who will perform the various
functions required under these regulations;
(4) The number of manufactured home manufacturers and manufacturing
plants for which the submitting party proposes to act in each of the
capacities for which it wishes to be approved to act;
(5) The estimated total number of manufactured homes produced by
those manufacturers and in those plants per year;
(6) The number of years the proposed primary inspection agency has
been actively engaged in the enforcement of manufactured home standards;
(7) A certification by the party applying that it will follow the
Federal manufactured home construction and safety standards set out at
24 CFR part 3280 and any interpretations of those standards which may be
made by the Secretary; and
(8) Whether the submitting party is approved to act as a primary
inspecting agency under the Title I program, and if so, in what
capacity.
(b) A detailed schedule of fees to be charged broken down by the
services for which they will be charged.
(c) A detailed description of how the submitting party intends to
carry out all of the functions for which it wishes to be approved under
this subpart, with appropriate cross-references to sections of this
subpart, including examples and complete descriptions of all reports,
tests, and evaluations which the party would be required to make. Where
appropriate, later sections of this subpart identify particular items
which must be included in the submission. The Secretary may request
further detailed information, when appropriate.
(d) A party wishing to be approved as a DAPIA shall submit a copy of
a manufactured home design that it has approved (or if it has not
approved a design, one that it has evaluated and a deviation report
showing where the design is not in conformance with the standards) and a
copy of a quality assurance manual that it has approved (or if it was
not approved a manual, one that it has evaluated and a deviation report
showing where the manual is inadequate).
(e) A party wishing to be approved as an IPIA shall submit a copy of
a certification report which it has prepared for a manufactured home
plant or, if it has not prepared such a report, an evaluation of a
manufacturing plant which it has inspected with a description of what
changes shall be made before a certification report can be issued. A
party that has not previously inspected manufactured homes may
nevertheless be accepted on the basis of the qualifications of its
personnel and its commitment to perform the required functions.
(f) A primary inspection agency which has been approved under the
Title I program, shall submit a statement reaffirming all commitments
made under Title I, names and re1sume1s of new key personnel, a
certification that it will enforce the standard in accordance with these
regulations, and a statement of fees as required by 3282.353(b).
24 CFR 3282.354 Submittal of false information or refusal to submit
information.
The submittal of false information or the refusal to submit
information required under this subpart may be sufficient cause for the
Secretary to revoke or withhold acceptance.
24 CFR 3282.355 Submission acceptance.
(a) A party whose submission is determined by the Department to be
adequate shall be granted provisional acceptance until December 15,
1976, or for a six month period from the date of such determination,
whichever is later.
(b) A party that has been accepted as a primary inspection agency
under the Title I program shall be granted provisional acceptance for 30
days as of the effective date of these regulations. This provisional
acceptance shall be extended to December 15, 1976, when the submission
required by 3282.353(f) has been made, within 30 days of the effective
date of these regulations.
(c) Final acceptance of a party to act as a primary inspection agency
will be contingent upon adequate performance during the period of
provisional acceptance as determined through monitoring carried out
under subpart J and upon satisfactory acceptance under 3282.361(e) or
3282.362(e). Final acceptance shall be withheld if performance is
inadequate.
(d) Continued acceptance as a primary inspection agency shall be
contingent upon continued adequacy of performance as determined through
monitoring carried out under subpart J. If the Secretary determines
that a primary inspection agency that has been granted final acceptance
is performing inadequately, the Secretary shall suspend the acceptance,
and the primary inspection agency shall be entitled to a Formal or
Informal Presentation of Views as set out in subpart D of this part.
(41 FR 19852, May 13, 1976, as amended at 51 FR 34468, Sept. 29,
1986)
24 CFR 3282.356 Disqualification and requalification of primary
inspection agencies.
(a) The Secretary, based on monitoring reports or on other reliable
information, may determine that a primary inspection agency which has
been accepted under this subpart is not adequately carrying out one or
more of its required functions. In so determining, the Secretary shall
consider the impact of disqualification on manufacturers and other
affected parties and shall seek to assure that the manufacturing process
is not disrupted unnecessarily. Whenever the Secretary disqualifies a
primary inspection agency under this section, the primary inspection
agency shall have a right to a Formal or Informal Presentation of Views
under subpart D of this part.
(b) Interested persons may petition the Secretary to disqualify a
primary inspection agency under the provisions of 3282.156(b).
(c) A primary inspection agency which has been disqualified under
paragraph (a) may resubmit an application under 3282.353. The
submission shall include a full explanation of how problems or
inadequacies which resulted in disqualifications have been rectified and
how the primary inspection agency shall assure that such problems shall
not recur.
(d) When appropriate, the Secretary shall publish in the Federal
Register or otherwise make available to the public for comment a
disqualified PIA's application for requalification, subject to the
provisions of 3282.54.
(e) Both provisional and final acceptance of any IPIA (or DAPIA)
automatically expires at the end of any period of one year during which
it has not acted as an IPIA (or DAPIA). An IPIA (or DAPIA) has not
acted as such unless it has actively performed its services as an IPIA
(or DAPIA) for at least one manufacturer by which it has been selected.
An IPIA (or DAPIA) whose acceptance has expired pursuant to this section
may resubmit an application under 3282.353 in order to again be
qualified as an IPIA (or DAPIA), when it can show a bona fide prospect
of performing IPIA (or DAPIA) services.
(41 FR 19852, May 13, 1976, as amended at 45 FR 59311, Sept. 9, 1980;
51 FR 34468, Sept. 29, 1986)
24 CFR 3282.357 Background and experience.
All private organizations shall submit statements of the
organizations' experience in the housing industry, including a list of
housing products, equipment, and structures for which evaluation,
testing and follow-up inspection services have been furnished. They
shall also submit statements regarding the length of time these services
have been provided by them. In addition, all such submissions shall
include a list of other products for which the submitting party provides
evaluation, inspection, and listing or labeling services and the
standard applied to each product, as well as the length of time it has
provided these additional services.
24 CFR 3282.358 Personnel.
(a) Each primary inspection agency shall have qualified personnel
capable of carrying out all of the functions for which the primary
inspection agency is seeking to be approved or disapproved. Where a
State intends to act as the exclusive IPIA in the State, it shall show
that it has adequate personnel to so act in all plants in the State.
(b) Each submission shall indicate the total number of personnel
employed by the submitting party, the number of personnel available for
this program, and the locations of the activities of the personnel to be
used in the program.
(c) Each submission shall include the names and qualifications of the
administrator and the supervisor who will be directly responsible for
the program, and re1sume1s of their experience.
(d) Each submission shall contain the information set out in
paragraphs (d)(1) through (d)(9) of this section. Depending upon the
functions (DAPIA or IPIA) to be undertaken by a particular primary
inspection agency, some of the categories of personnel listed may not be
required. In such cases, the submission should indicate which of the
categories of information are not required and explain why they are not
needed. The submission should identify which personnel will carry out
each of the functions the party plans to perform. The qualifications of
the personnel to perform one or more of the functions will be judged in
accordance with the requirements of ASTM Standard E-541 except that the
requirement for registration as a professional engineer or architect may
be waived for personnel whose qualifications by experience or education
equal those of a registered engineer or architect. The categories of
personnel to be included in the submission are as follows:
(1) The names of engineers practicing structural engineering who will
be involved in the evaluation, testing, or followup inspection services,
and re1sume1s of their experience.
(2) The names of engineers practicing mechanical engineering who will
be involved in the evaluation, testing, or followup, inspection services
and re1sume1s of their experience.
(3) The names of engineers practicing electrical engineering who will
be involved in the evaluation, testing, or followup inspection services
and re1sume1s of their experience.
(4) The names of engineers practicing fire protection engineering who
will be involved in the evaluation, testing, or followup inspection
services, and re1sume1s of their experience.
(5) The names of all other engineers assigned to this program, the
capacity in which they will be employed, and re1sume1s of their
experience.
(6) The names of all full-time and part-time consulting architects
and engineers, their registration, and re1sume1s of their experience.
(7) The names of inspectors and other technicians along with re 1sume
1s of experience and a description of the type of work each will
perform.
(8) A general outline of the applicant agency's training program for
assuring that all inspectors and other technicians are properly trained
to do each specific job assigned.
(9) The names and qualifications of individuals serving on advisory
panels that assist the applicant agency in making its policies conform
with the public interest in the field of public health and safety.
(e) All information required by this section shall be kept current.
The Secretary shall be notified of any change in personnel or management
or change of ownership or State jurisdiction within 30 days of such
change.
24 CFR 3282.359 Conflict of interest.
(a) All submissions by private organizations shall include a
statement that the submitting party is independent in that it does not
have any actual or potential conflict of interest and is not affiliated
with or influenced or controlled by any producer, supplier, or vendor of
products in any manner which might affect its capacity to render reports
of findings objectively and without bias.
(b) A private organization shall be judged to be free of conflicting
affiliation, influence, and control if it demonstrates compliance with
all of the following criteria:
(1) It has no managerial affiliation with any producer, supplier, or
vendor of products for which it performs PIA services, and is not
engaged in the sale or promotion of any such product or material;
(2) The results of its work do not accrue financial benefits to the
organization via stock ownership of any producer, supplier or vendor of
the products involved;
(3) Its directors and other management personnel and its engineers
and inspectors involved in certification activities hold no stock in and
receive no stock option or other benefits, financial, or otherwise, from
any producer, supplier, or vendor of the product involved, other than
compensation under 3282.202 of this part;
(4) The employment security status of its personnel is free of
influence or control of any producer, supplier, or vendor, and
(5) It does not perform design or quality assurance manual approval
services for any manufacturer whose design or manual has been created or
prepared in whole or in part by engineers of its organization or
engineers of any affiliated organization.
(c) All submissions by States shall include a statement that
personnel who will be in any way involved in carrying out the State plan
or PIA function are free of any conflict of interest except that with
respect to members of councils, committees or similar bodies providing
advice to the designated agency are not subject to this requirement.
24 CFR 3282.360 PIA acceptance of product certification programs or
listings.
In determining whether products to be included in a manufactured home
are acceptable under the standards set out in part 3280 of 24 CFR, all
PIAs shall accept all product verification programs, labelings, and
listings unless the PIA has reason to believe that a particular
certification is not acceptable, in which case, the PIA shall so inform
the Secretary and provide the Secretary with full documentation and
information on which it bases its belief. Pending a determination by
the Secretary, the PIA shall provisionally accept the certification.
The Secretary's determination shall be binding on all PIAs.
24 CFR 3282.361 Design Approval Primary Inspection Agency (DAPIA).
(a) General. (1) The DAPIA selected by a manufacturer under
3282.203 shall be responsible for evaluating all manufactured home
designs submitted to it by the manufacturer and for assuring that they
conform to the standards. It shall also be responsible for evaluating
all quality control programs submitted to it by the manufacturer by
reviewing the quality assurance manuals in which the programs are set
out to assure that the manuals reflect programs which are compatible
with the designs to be followed and which commit the manufacturer to
make adequate inspections and tests of every part of every manufactured
home produced.
(2) A design or quality assurance manual approved by a DAPIA shall be
accepted by all IPIAs acting under 3282.362 who deal with the design,
quality assurance manual, or manufactured homes built to them, and by
all other parties, as, respectively, being in conformance with the
Federal standards or as providing for adequate quality control to assure
conformance. However, each design and quality assurance manual is
subject to review and verification by the Secretary or the Secretary's
agent at any time.
(b) Designs. (1) In evaluating designs for compliance with the
standards, the DAPIA will not allow any deviations from accepted
engineering practice standards for design calculations or any deviations
from accepted test standards, except that the DAPIA, for good cause, may
request the Secretary to accept innovations which are not yet accepted
practices. Acceptances by the Secretary shall be published in the form
of interpretative bulletins, where appropriate.
(2) The DAPIA shall require the manufacturer to submit floor plans
and specific information for each manufactured home design or variation
which the DAPIA is to evaluate. It shall also require the submission of
drawings, specifications, calculations, and test records of the
structural, electrical and mechanical systems of each such manufactured
home design or variation. The manufacturer need not supply duplicate
information where systems are common to several floor plans. Each DAPIA
shall develop and carry out procedures for evaluating original
manufactured home designs by requiring manufacturers to submit necessary
drawings and calculations and carry out such verifications and
calculations as it deems necessary. Where compliance with the standards
cannot be determined on the basis of drawings and calculations, the
DAPIA shall require any necessary tests to be carried out at its own
facility, at separate testing facilities or at the manufacturer's plant.
(3) Design deviation report. After evaluating the manufacturer's
design, the DAPIA shall furnish the manufacturer with a design deviation
report which specifies in detail, item by item with appropriate
citations to the standards, the specific deviations in the
manufacturer's design which must be rectified in order to produce
manufactured homes which comply with the standards. The design
deviation report may acknowledge the possibility of alternative designs,
tests, listings, and certifications and state the conditions under which
they will be acceptable. The design deviation report shall, to the
extent practicable, be complete for each design evaluated in order to
avoid repeated rejections and additional costs to the manufacturer.
(4) Design approval. The DAPIA shall signify approval of a design by
placing its stamp of approval or authorized signature on each drawing
and each sheet of test results. The DAPIA shall clearly cross-reference
the calculations and test results to applicable drawings. The DAPIA may
require the manufacturer to do the cross-referencing if it wishes. It
shall indicate on each sheet how any deviations from the standards have
been or shall be resolved. Within 5 days after approving a design, the
DAPIA shall forward a copy of the design to the manufacturer and the
Secretary or the Secretary's agent (prior to the effective date of the
standards the latter copy shall go to the Secretary.)
The DAPIA shall maintain a complete up-to-date set of approved
designs and design changes approved under paragraph (b)(5) of this
section which it can duplicate and copies of which it can furnish to
interested parties as needed when disputes arise.
(5) Design change approval. The DAPIA shall also be responsible for
approving all changes which a manufacturer wishes to make in a design
approved by the DAPIA. In reviewing design changes, the DAPIA shall
respond as quickly as possible to avoid disruption of the manufacturing
process. Within 5 days after approving a design change, the DAPIA shall
forward a copy of this change to the manufacturer and the Secretary or
the Secretary's agent as set out in paragraph (b)(4) of this section to
be included in the design to which the change was made.
(c) Quality assurance manuals. (1) In evaluating a quality assurance
manual, the DAPIA shall identify any aspects of designs to be
manufactured under the manual which require special quality control
procedures. The DAPIA shall determine whether the manual under which a
particular design is to be manufactured reflects those special
procedures, and shall also determine whether the manuals which it
evaluates provide for such inspections and testing of each manufactured
home so that the manufacturer, by following the manual, can assure that
each manufactured home it manufactures will conform to the standards.
The manual shall, at a minimum, include the information set out in
3282.203(c).
(2) Manual deviation report. After evaluating a manufacturer's
quality assurance manual, the DAPIA shall furnish the manufacturer with
a manual deviation report which specifies in detail any changes which a
manufacturer must make in order for the quality assurance manual to be
acceptable. The manual deviation report shall, to the extent
practicable, be complete for each design in order to avoid repeated
rejections and additional costs to the manufacturer.
(3) Manual approval. The DAPIA shall signify approval of the
manufacturer's quality assurance manual by placing its stamp of approval
or authorized signature on the cover page of the manual. Within 5 days
of approving a quality assurance manual, the DAPIA shall forward a copy
of the quality assurance manual to the manufacturer and the Secretary or
the Secretary's agent (prior to the effective date of the standards, the
latter copy shall go to the Secretary). The DAPIA shall maintain a
complete up-to-date set of approved manuals and manual changes approved
under paragraph (c)(4) of this section which it can duplicate and copies
of which it can furnish to interested parties as needed when disputes
arise.
(4) Manual change approval. Each change the manufacturer wishes to
make in its quality assurance manual shall be approved by the DAPIA.
Within 5 days after approving a manual change, the DAPIA shall forward a
copy of the change to the manufacturer and the Secretary or the
Secretary's agent as set out in paragraph (c)(3) of this section to be
included in the manual to which the change was made.
(d) Special provision -- Title I approvals. A design that has been
approved by an organization accepted by the Secretary prior to June 15,
1976, under the Title I program need not be reevaluated, but it shall be
revised to bring it into conformance with the Federal standards. When
the DAPIA that approved a Title I design to the ANSI standard has
approved the design changes that bring the design into conformance with
the Federal standards, that design shall be considered approved for
purposes of these regulations. Quality assurance manuals that have been
approved under the Title I program shall be considered approved for
purposes of these regulations. The DAPIA that approved the Title I
design and any required design changes or the quality assurance manual
shall assure that copies of each are distributed as new designs,
manuals, and changes will be accomplished under paragraphs (b) and (c)
of this section. New copies need not be distributed to parties which
already have copies.
(e) Requirements for full acceptance -- DAPIA. (1) Before granting
full acceptance to a DAPIA, the Secretary or the Secretary's agent shall
review and evaluate at least one complete design and one quality
assurance manual which has been approved by the DAPIA. These shall be
designs and manuals approved to the Federal standards, and they shall be
chosen at random from those approved by the DAPIA during the period of
provisional acceptance.
(2) If the Secretary determines that a design or quality assurance
manual shows an inadequate level of performance, the Secretary or the
Secretary's agent shall carry out further evaluations. If the Secretary
finds the level of performance to be unacceptable, the Secretary shall
not grant full acceptance. If full acceptance has not been granted by
the end of the provisional acceptance period, provisional acceptance
shall lapse unless the Secretary determines that the failure to obtain
full acceptance resulted from the fact that the Secretary or her agent
has not had adequate time in which to complete an evaluation.
24 CFR 3282.362 Production Inspection Primary Inspection Agencies
(IPIAs).
(a) General. (1) IPIA Responsibilities. An IPIA selected by a
manufacturer under 3282.204 to act in a particular manufacturing plant
shall be responsible for assuring:
(i) That the plant is capable of following the quality control
procedures set out in the quality assurance manual to be followed in
that plant;
(ii) That the plant continues to follow the quality assurance manual;
(iii) That any part of any manufactured home that it actually
inspects conforms with the design, or where the design is not specific
with respect to an aspect of the standards, to the standards;
(iv) That whenever it finds a manufactured home in production which
fails to conform to the design or where the design is not specific, to
the standards, the failure to conform is corrected before the
manufactured home leaves the manufacturing plant; and
(v) That if a failure to conform to the design, or where the design
is not specific, to the standards, is found in one manufactured home,
all other homes still in the plant which the IPIA's records or the
records of the manufacturer indicate might not conform to the design or
to standards are inspected and, if necessary, brought up to the
standards before they leave the plant.
(2) No more than one IPIA shall operate in any one manufacturing
plant, except that where a manufacturer decides to change from one IPIA
to another, the two may operate in the plant simultaneously for a
limited period of time to the extent necessary to assure a smooth
transition.
(b) Plant approval. (1) Each IPIA shall, with respect to each
manufacturing plant for which it is responsible, evaluate the quality
control procedures being followed by the manufacturer in the plant to
determine whether those procedures are consistent with and fulfill the
procedures set out in the DAPIA approved quality assurance manual being
followed in the plant. As part of this evaluation, and prior to the
issuance of any labels to the manufacturer, the IPIA shall make a
complete inspection of the manufacture of at least one manufactured home
through all of the operations in the manufacturer's plant. The purpose
of this initial factory inspection is to determine whether the
manufacturer is capable of producing manufactured homes in conformance
with the approved design and, to the extent the design is not specific
with respect to an aspect of the standards, with the standards and to
determine whether the manufacturer's quality control procedures as set
out in the quality assurance manual, plant equipment, and personnel,
will assure that such conformance continues. This inspection should be
made by one or more qualified engineers who have reviewed the approved
design and by an inspector who has been carefully briefed by the
engineers on the restrictive aspects of the design. The manufactured
home shall be inspected to the approved design for the home except that
where the design is not specific with respect to any aspect of the
standards, the inspection shall be to the standards as to that aspect of
the manufactured home. If the first manufactured home inspected fails
to conform to the design or, with respect to any aspect of the standards
not specifically covered by the design, to the standards, additional
units shall be similarly inspected until the IPIA is satisfied that the
manufacturer is conforming to the approved design, or where the design
is not specific with respect to any aspect of the standards, to the
standards and quality assurance manual.
(2) Certification report. If, on the basis of the initial
comprehensive factory inspection required by paragraph (b)(1) of this
section, the IPIA determines that the manufacturer is performing
adequately, the IPIA shall prepare and forward to the manufacturer, to
HUD, and to HUD's agent a certification report as described in this
paragraph (b)(2) of this section. The issuance of the certification
report is a prerequisite to the commencement of production surveillance
under paragraph (c) of this section in the plant for which the report is
issued. At the time the certification report is issued, the IPIA may
provide the manufacturer with a two to four week supply of labels to be
applied to manufactured homes produced in the plant. The IPIA shall
maintain a copy of each certification report which it issues.
(3) The certification report shall include:
(i) The name of the DAPIA which approved the manufacturer's design
and quality assurance manual and the dates of those approvals,
(ii) The names and titles of the IPIA engineers and inspectors who
performed the initial comprehensive inspection,
(iii) A full report of inspections made, serial numbers inspected,
any failures to comply which were observed, corrective actions taken,
and dates of inspections, and
(iv) A certification that at least one manufactured home has been
completely inspected in all phases of its production in the plant, that
the manufacturer is performing in conformance with the approved designs
and quality assurance manual and, to the extent the design is not
specific with respect to any aspects of the standards, with the
standards, and the IPIA is satisfied that the manufacturer can produce
manufactured homes in conformance with the designs, and where the
designs are not specific, with the standards on a continuing basis.
(4) Inadequate manufacturer performance. Where an IPIA determines
that the performance of a manufacturer is not yet adequate to justify
the issuance of a certification report and labels to the manufacturer,
the IPIA may label manufactured homes itself by using such of its
personnel as it deems necessary to perform complete inspections of all
phases of production of each manufactured home being produced and
labeling only those determined after any necessary corrections to be in
conformance with the design and, as appropriate, with the standards.
This procedure shall continue until the IPIA determines that the
manufacturer's performance is adequate to justify the issuance of a
certification report.
(5) Transition provision. (i) Prior to the effective date of the
standards, when the IPIA finds that it does not have adequate staff to
perform the initial comprehensive inspection in a manufacturing plant
soon enough for that manufacturer to be in production on the effective
date of the standards, or after the effective date of the standards with
respect to a manufacturer which is acting under the transition
certification process set out in 3282.207, the IPIA may arrange to have
a DAPIA perform the initial comprehensive in-factory inspection under
paragraph (b)(1) of this section and issue the certification report
under paragraph (b)(2) of this section. The IPIA shall then issue a
two-to-four-week supply of labels to be used beginning on the effective
date of the standards. If the DAPIA is unable to complete the initial
comprehensive factory inspection and is unable to complete the initial
comprehensive factory inspection and issue the certification report
prior to the effective date of the standards, the DAPIA shall submit a
deviation report to the IPIA listing all conditions that shall be
corrected in the factory prior to the issuance of the certification
report and labels. Upon receipt of the DAPIA's deviation report, the
IPIA may initiate full-time inspection in the factory with such
personnel as it deems necessary to provide complete inspections of
manufactured homes in production, and it shall apply labels to those
manufactured homes that it knows by its own inspections to be in
conformance with the design and, as appropriate under paragraph (b)(1)
of this section, with the standards. The IPIA shall continue its
full-time inspection in the plant until all deviations cited by the
DAPIA have been corrected and the IPIA is satisfied that the
manufacturer is conforming to the approved designs and quality assurance
manual and as appropriate under paragraph (b)(1) of this section, with
the standards, when these conditions have been met the IPIA shall issue
the certification report and a two- to four-week supply of labels to the
manufacturer to be used prior to the commencement of production
surveillance under paragraph (c) of this section.
(ii) A certification report for a particular plant accepted under the
Title I program shall be accepted as a certification report under
paragraph (b)(2) of this section. The IPIA which originally issued the
certification report or a different IPIA acting for the manufacturer
under this section shall assure that copies of it are distributed as new
reports would be under paragraph (b)(2), of this section, except that
copies need not be distributed to parties which already have copies.
(c) Production surveillance. (1) After it has issued a certification
report under paragraph (b) of this section, the IPIA shall carry out
ongoing surveillance of the manufacturing process in the plant. The
IPIA shall be responsible for conducting representative inspections to
assure that the manufacturer is performing its quality control program
pursuant to and consistent with its approved quality assurance manual
and to assure that whatever part of a manufactured home is actually
inspected by the IPIA is fully in conformance with the design and, as
appropriate under paragraph (a)(1)(iii) of this section, with the
standards before a label is issued for or placed on that manufactured
home. The surveillance visits shall commence no later than that date on
which the IPIA determines they must commence so that the IPIA can assure
that every manufactured home to be produced after the effective date of
the standards to which a label provided for in paragraph (c)(2) of this
section is affixed, is inspected in at least one stage of its
production. The frequency of subsequent visits to the plant shall
continue to be such that every manufactured home is inspected at some
stage in its production. In the course of each visit, the IPIA shall
make a complete inspection of every phase of production and of every
visible part of every manufactured home which is at each stage of
production. The inspection shall be made to the approved design except
where the design is not specific with respect to an aspect of the
standards, in which case the inspection of that aspect of the
manufactured home shall be made to the standards. The IPIA shall assure
that no label is placed on any manufactured home which it finds fails to
conform with the approved design or, as appropriate, the standards in
the course of these inspections and shall assure that no labels are
placed on other manufactured homes still in the plant which may also not
conform until those homes are inspected and if necessary corrected to
the design or the standards. If an IPIA finds a manufactured home that
fails to conform to the design, or as appropriate under paragraph
(a)(1)(iii) of this section, to the standards, the IPIA may, in addition
to withholding the label for the unit, proceed to red tag the home until
the failure to conform is corrected. Only the IPIA is authorized to
remove a red tag. When manufactured homes repeatedly fail to conform to
the design, or as appropriate under paragraph (a)(1)(iii) of this
section, to the standards in the same assembly station or when there is
evidence that the manufacturer is ignoring or not performing under its
approved quality assurance manual, the IPIA shall increase the frequency
of these inspections until it is satisfied that the manufacturer is
performing to its approved quality assurance manual. Failure to perform
to the approved manual justifies withholding labels until an adequate
level of performance is attained. As part of its function of assuring
quality control, the IPIA shall inspect materials in storage and test
equipment used by the manufacturer at least once a month, and more
frequently if unacceptable conditions are observed. With the prior
approval of the Secretary, an IPIA may decrease the frequency of any
inspections.
(2) Labeling -- (i) Labels required. (A) The IPIA shall continuously
provide the manufacturer with a two- to four-week supply (at the
convenience of the IPIA and the manufacturer) of the labels described in
this subsection, except that no labels shall be issued for use when the
IPIA is not present if the IPIA is not satisfied that the manufacturer
can and is producing manufactured homes which conform to the design and,
as appropriate, to the standards. Where necessary, the IPIA shall
reclaim labels already given to the manufacturer. In no event shall the
IPIA allow a label to be affixed to a manufactured home if the IPIA
believes that the manufactured home fails to conform to the design, or,
where the design is not specific with respect to an aspect of the
standards, to the standards. Labels for such manufactured homes shall
be provided only after the failure to conform has been remedied, or
after the Secretary has determined that there is no failure to conform.
(B) Except where a manufacturer acts under the transition
certification program under 3282.207, a permanent label shall be
affixed to each transportable section of each manufactured home for sale
or lease to a purchaser in the United States in such a manner that
removal will damage the label so that it cannot be reused. This label
is provided by the IPIA and is separate and distinct from the data plate
which the manufacturer is required to provide under 3280.5 of chapter
XX of 24 CFR.
(C) The label shall read as follows:
As evidenced by this label No. ABC 000 001, the manufacturer
certifies to the best of the manufacturer's knowledge and belief that
this manufactured home has been inspected in accordance with the
requirements of the Department of Housing and Urban Development and is
constructed in conformance with the Federal Manufactured Home
Construction and Safety Standards in effect on the date of manufacture.
See data plate.
However, labels containing the language specified in 24 CFR 3282.362
as issued on May 13, 1976, at 41 FR 19869, shall be used until
inventories held by IPIA's as of March 15, 1977, are exhausted. After
such inventories are exhausted, only labels containing the language
stated above shall be used.
(D) The label shall be 2 in. by 4 in. in size and shall be
permanently attached to the manufactured home by means of 4 blind
rivets, drive screws, or other means that render it difficult to remove
without defacing it. It shall be etched on .032 in. thick aluminum
plate. The label number shall be etched or stamped with a 3 letter IPIA
designation which the Secretary shall assign and a 6 digit number which
the label supplier shall stamp sequentially on labels supplied to each
IPIA.
(E) The label shall be located at the tail-light end of each
transportable section of the manufactured home approximately one foot up
from the floor and one foot in from the road side, or as near that
location on a permanent part of the exterior of the manufactured home as
practicable. The roadside is the right side of the manufactured home
when one views the manufactured home from the tow bar end of the
manufactured home. It shall be applied to the manufactured home unit in
the manufacturing plant by the manufacturer or the IPIA, as appropriate.
(F) The label shall be provided to the manufacturer only by the IPIA.
The IPIA shall provide the labels in sequentially numbered series. The
IPIA may obtain labels from the Secretary or the Secretary's agent, or
where the IPIA obtains the prior approval of the Secretary, from a label
manufacturer. However, if the IPIA obtains labels directly from a label
supplier, those labels must be sequentially numbered without any
duplication of label numbers.
(G) Whenever the IPIA determines that a manufactured home which has
been labeled, but which has not yet been released by the manufacturer
may not conform to the design or, as appropriate under paragraph
(a)(1)(iii) of this section, to the standards, the IPIA by itself or
through an agent shall red tag the manufactured home. Where the IPIA
determines that a manufactured home which has been labeled and released
by the manufacturer, but not yet sold to a purchaser (as described in
3282.252(b)) may not conform, the IPIA may, in its discretion, proceed
to red tag the manufactured home. Only the IPIA is authorized to remove
red tags, though it may do so through agents which it deems qualified to
determine that the failure to conform has been corrected. Red tags may
be removed when the IPIA is satisfied, through inspections, assurances
from the manufacturer, or otherwise, that the affected homes conform.
(H) Labels that are damaged, destroyed, or otherwise made illegible
or removed shall be replaced by the IPIA, after determination that the
manufactured home is in compliance with the standards, by a new label of
a different serial number. The IPIA's labeling record shall be
permanently marked with the number of the replacement label and a
corresponding record of the replacement label.
(ii) Label control. The labels used in each plant shall be under the
direct control of the IPIA acting in that plant. They shall be provided
to the manufacturer only by the IPIA. The IPIA shall assure that the
manufacturer does not use any other label to indicate conformance to the
standards. This paragraph (c)(2)(ii) does not apply to
transition-certification labels used under 3282.207.
(A) The IPIA shall be responsible for obtaining labels. Labels shall
be obtained from HUD or its agent, or with the approval of the
Secretary, from a label manufacturer. The labels shall meet the
requirements of this section. Where the IPIA obtains labels directly
from a label manufacturer, the IPIA shall be responsible for assuring
that the label manufacturer does not provide labels directly to the
manufacturer of manufactured homes. If the label manufacturer fails to
supply correct labels or allows labels to be released to parties other
than the IPIA, the IPIA shall cease dealing with the label manufacturer.
(B) The labels shall be shipped to and stored by the IPIA's at a
location which permits ready access to manufacturing plants under its
surveillance. The labels shall be stored under strict security and
inventory control. They shall be released only by the IPIA to the
manufacturer under these regulations.
(C) The IPIA shall be able to account for all labels which it has
obtained through the date on which the manufactured home leaves the
manufacturing plant, and it shall be able to identify the serial number
of the manufactured home to which each particular label is affixed.
(D) The IPIA shall keep in its central record office a list of the
serial numbers of labels issued from the label producer to the IPIA and
by the IPIA to the manufacturing plant.
(E) Failure to maintain control of labels through the date the
manufactured home leaves the manufacturing plant and failure to keep
adequate records of which label is on which manufactured home shall
render the IPIA subject to disqualification under 3282.356.
(3) Data plate. (i) The IPIA shall assure that each manufactured
home produced in each manufacturing plant under its surveillance is
supplied with a data plate which meets the requirements of this section
and of 3280.5 of chapter XX of 24 CFR. The data plate shall be
furnished by the manufacturer and affixed inside the manufactured home
on or near the main electrical distribution panel. The data plate shall
contain the following information:
(A) The name and address of the manufacturing plant in which the
manufactured home was manufactured,
(B) The serial number and model designation of the unit and the date
the unit was manufactured,
(C) The statement ''This manufactured home is designed to comply with
the Federal Manufactured Home Construction and Safety Standards in force
at the time of manufacture.'',
(D) A list of major factory-installed equipment including the
manufacturer's name and the model designation of each appliance,
(E) Reference to the structural zone and wind zone for which the home
is designed and duplicates of the maps as set forth in 3280.305(c)(4)
of chapter XX of 24 CFR. This information may be combined with the
heating/cooling certificate and insulation zone maps required by
3280.510 and 3280.511 of this chapter.
(F) The statement ''design approval by'' followed by the name of the
DAPIA which approved the design,
(ii) A copy of the data plate shall be furnished to the IPIA, and the
IPIA shall keep a permanent record of the data plate as part of its
labeling record so that the information is available during the life of
the manufactured home in case the data plate in the manufactured home is
defaced or destroyed.
(d) Permanent records. The IPIA shall maintain the following records
as appropriate:
(1) Records of all labels issued, applied, removed, and replaced by
label number, manufactured home serial number, manufactured home type,
manufacturer's name, dealer destination, and copies of corresponding
data plates.
(2) Records of all manufactured homes which are red tagged, and the
status of each home.
(3) Records of all inspections made at each manufacturing plant on
each manufactured home serial number, each failure to conform found, and
the action taken in each case.
(4) Records of all inspections made at other locations of
manufactured homes identified by manufacturer and serial number, all
manufactured homes believed to contain the same failure to conform, and
the action taken in each case.
All records shall specify the precise section of the standard which
is in question and contain a clear and concise explanation of the
process by which the IPIA reached any conclusions. All records shall be
traceable to specific manufactured home serial numbers and through the
manufacturer's records to dealers and purchasers.
(e) Requirements for full acceptance -- IPIA. (1) Before granting
full acceptance to an IPIA, the Secretary or the Secretary's agent shall
review and evaluate at least one certification report which has been
prepared by the IPIA during the period of provisional acceptance. The
Secretary or the Secretary's agent shall also review in depth the IPIA's
administrative capabilities and otherwise review the IPIA's performance
of its responsibilities under these regulations.
(2) Where the Secretary determines on the basis of these reviews that
an IPIA is not meeting an adequate level of performance, the Secretary
or the Secretary's agent shall carry out further evaluations. If the
Secretary finds the level of performance to be unacceptable, the
Secretary shall not grant full acceptance. If full acceptance has not
been granted by the end of the provisional acceptance period,
provisional acceptance shall lapse unless the Secretary determines that
the failure to obtain full acceptance resulted from the fact that the
Secretary or the Secretary's agent has not had adequate time in which to
complete an evaluation.
(41 FR 19852, May 13, 1976, as amended at 42 FR 2580, Jan. 12, 1977;
42 FR 35157, July 8, 1977)
24 CFR 3282.363 Right of entry and inspection.
Each primary inspection agency shall secure from each manufacturer
and manufacturing plant under its surveillance an agreement that the
Secretary, the State Administrative Agency and the primary inspection
agency have the right to inspect the plant and its manufactured home
inspection, labeling, and delivery records, and any of its manufactured
homes in the hands of dealers or distributors at any reasonable time.
24 CFR 3282.364 Inspection responsibilities and coordination.
All primary inspection agencies shall be responsible for acting as
necessary under their contractual commitment with the manufacturer to
determine whether alleged failures to conform to the standards may exist
in manufactured homes produced under their surveillance and to determine
the source of the problems. The DAPIA may be required to examine the
designs in question or the quality assurance manual under which the
manufactured homes were produced. The IPIA may be required to reexamine
the quality control procedures which it has approved to determine if
they conform to the quality assurance manual, and the IPIA shall have
primary responsibility for inspecting actual units produced and, where
necessary, for inspecting units released by the manufacturer. All
primary inspection agencies acting with respect to particular
manufacturer or plant shall act in close coordination so that all
necessary functions are performed effectively and efficiently.
24 CFR 3282.365 Forwarding monitoring fee.
The IPIA shall, whenever it provides labels to a manufacturer, obtain
from the manufacturer the monitoring fee to be forwarded to the
Secretary or the Secretary's agent as set out in 3282.210. If a
manufacturer fails to provide the monitoring fee as required by
3282.210 to be forwarded by the IPIA under this section, the IPIA shall
immediately inform the Secretary; or the Secretary's Agent.
24 CFR 3282.366 Notification and correction campaign responsibilities.
(a) Both IPIAs and DAPIAs are responsible for assisting the Secretary
or an SAA in identifying the class of manufactured homes that may have
been affected where the Secretary or an SAA makes or is contemplating
making a preliminary determination of imminent safety hazard, serious
defect, defect, or noncompliance under 3282.407 with respect to
manufactured homes for which the IPIA or DAPIA provided either plant
inspection or design approval services.
(b) The IPIA in each manufacturing plant is responsible for reviewing
manufacturer determinations of the class of manufactured homes affected
when the manufacturer is acting under 3282.404. The IPIA shall concur
in the method used to determine the class of potentially affected
manufactured homes or shall state why it finds the method to be
inappropriate, inadequate or incorrect.
(42 FR 2580, Jan. 12, 1977)
24 CFR 3282.366 Subpart I -- Consumer Complaint Handling and Remedial
Actions
Source: 42 FR 2580, Jan. 12, 1977, unless otherwise noted.
24 CFR 3282.401 Purpose and scope.
(a) The purpose of this subpart is to establish a system under which
the protections of the Act are provided with a minimum of formality and
delay, but in which the rights of all parties are protected.
(b) This subpart sets out the procedures to be followed by
manufacturers, State Administrative Agencies, primary inspection
agencies, and the Secretary to assure that manufacturers provide
notification and correction with respect to their manufactured homes as
required by the Act. Notification and correction may be required to be
provided with respect to manufactured homes that have been sold or
otherwise released by the manufacturer to another party when the
manufacturer, an SAA or the Secretary determines that an imminent safety
hazard, serious defect, defect, or noncompliance may exist in those
manufactured homes as set out herein.
(c) This subpart sets out the rights of dealers under section 613 of
the Act, 42 U.S.C. 5412, to obtain remedies from manufacturers in
certain circumstances.
24 CFR 3282.402 General principles.
(a) Nothing in this subpart or in these regulations shall limit the
rights of the purchaser under any contract or applicable law.
(b) The liability of manufactured home manufacturers to provide
remedial actions under this subpart is limited by the principle that
manufacturers are not responsible for failures that occur in
manufactured homes or components solely as the result of normal year and
aging, gross and unforeseeable consumer abuse, or unforeseeable neglect
of maintenance.
(c) The extent of a manufacturer's responsibility for providing
notification or correction depends upon the seriousness of problems for
which the manufacturer is responsible under this subpart.
(d) When manufacturers act under 3282.404 of these regulations, they
will not be required to classify the problem that triggered their action
as a noncompliance, defect, serious defect, or imminent safety hazard.
(e) It is the policy of these regulations that all consumer
complaints or other information indicating the possible existence of an
imminent safety hazard, serious defect, defect, or noncompliance should
be referred to the manufacturer of the potentially affected manufactured
homes as early as possible so that the manufacturer can begin to timely
respond to the consumer and take any necessary remedial actions.
24 CFR 3282.403 Consumer complaint and information referral.
When a consumer complaint or other information indicating the
possible existence of a noncompliance, defect, serious defect, or
imminent safety hazard is received by a State Administrative Agency or
the Secretary, the SAA or the Secretary shall forward the complaint or
other information to the manufacturer of the manufactured home in
question. The SAA or the Secretary shall, when it appears from the
complaint or other information that more than one manufactured home may
be involved, simultaneously send a copy of the complaint or other
information to the SAA of the State where the manufactured home was
manufactured or to the Secretary if there is no such SAA, and when it
appears that an imminent safety hazard or serious defect may be
involved, simultaneously send a copy to the Secretary.
24 CFR 3282.404 Notification pursuant to manufacturer's determination.
(a) The manufacturer shall provide notification as set out in this
subpart with respect to all manufactured homes produced by the
manufacturer in which there exists or may exist an imminent safety
hazard or serious defect. The manufacturer shall provide such
notification with respect to manufactured homes produced by the
manufacturer in which a defect exists or may exist if the manufacturer
has information indicating that the defect may exist in a class of
manufactured homes that is identifiable because the cause of the defect
or defects actually known to the manufacturer is such that the same
defect would probably have been systematically introduced into more than
one manufactured home during the course of production. This information
may include, but is not limited to, complaints that can be traced to the
same cause, defects known to exist in supplies of components or parts,
information related to the performance of a particular employee and
information indicating a failure to follow quality control procedures
with respect to a particular aspect of the manufactured home. A
manufacturer is required to provide notification with respect to a
noncompliance only after the issuance of a final determination under
3282.407.
(b) Whenever the manufacturer receives from any source information
that may indicate the existence of a problem in a manufactured home for
which the manufacturer is responsible for providing notification under
paragraph (a) of this section, the manufacturer shall, as soon as
possible, but not later than 20 days after receipt of the information,
carry out any necessary investigations and inspections to determine and
shall determine whether the manufacturer is responsible for providing
notification under paragraph (a) of this section. The manufacturer
shall maintain complete records of all such information and
determinations in a form that will allow the Secretary or an SAA readily
to discern who made the determination with respect to a particular piece
of information, what the determination was, and the basis for the
determination. Such records shall be kept for a minimum of five years
from the date the manufacturer received the information. Consumer
complaints or other information indicating the possible existence of
noncompliances or defects received prior to the effective date of this
section shall, for purposes of this subpart, be deemed to have been
received on the date this section became effective.
(c) If a manufacturer determines under paragraph (b) of this section
that the manufacturer is responsible for providing notification under
paragraph (a) of this section, the manufacturer shall prepare a plan for
notification as set out in 3282.409. Where the manufacturer is required
to correct under 3282.406, the manufacturer shall include in the plan
provision for correction of affected manufactured homes. The
manufacturer shall, as soon as possible, but not later than 20 days
after making the determination, submit the plan to one of the following,
as appropriate:
(1) Where the manufactured homes covered by the plan were all
manufactured in one State, to the SAA of the State of manufacture;
(2) Where the manufactured homes were manufactured in more than one
State, to the Secretary; or
(3) Where there is no appropriate SAA under paragraph (c)(1) of this
section, to the Secretary.
However, Where only one manufactured home is involved, the
manufacturer need not submit the plan if the manufacturer corrects the
manufactured home within the 20 day period. The manufacturer shall
maintain, in the plant where the manufactured home was manufactured, a
complete record of the correction. The record shall describe briefly
the facts of the case and state what corrective actions were taken, and
it shall be maintained in a separate file in a form that will allow the
Secretary or an SAA to review all such corrections.
(d) Upon approval of the plan with any necessary changes, the
manufacturer shall carry out the approved plan within the time limits
stated in it.
(e) In any case, the manufacturer may act prior to obtaining approval
of the plan. However, such action is subject to review and disapproval
by the SAA of the State where the manufactured home is located, the SAA
of the State where the manufactured home was manufactured, or the
Secretary, except to the extent that agreement to the correction is
obtained as described in this paragraph. To be assured that the
corrective action will be accepted, the manufacturer may obtain the
agreement of either SAA or the Secretary that the corrective action is
adequate before the correction is made regardless of whether a plan has
been submitted under paragraph (c) of this section. If such an
agreement is obtained, the correction shall be accepted as adequate by
all SAAs and the Secretary if the correction is made as agreed to and
any imminent safety hazard or serious defect is eliminated.
(f) If the manufacturer wishes to obtain a waiver of the formal plan
approval and notification requirements that would result from a
determination under paragraph (b) of this section, the manufacturer may
act under this paragraph. The plan approval and notification
requirements shall be waived by either the SAA or the Secretary that
would otherwise review the plan under paragraph (c) of this section if:
(1) The manufacturer, before the expiration of the time period
determined under paragaraph (c) of this section, shows to the
satisfaction of the SAA or the Secretary, through such documentation as
the SAA or the Secretary may require, that:
(i) The manufacturer has identified the class of possibly affected
manufactured homes in accordance with 3282.409.
(ii) The manufacturer will correct, at the manufacturer's expense,
all affected manufactured homes in the class within 60 days of being
informed that the request for waiver has been accepted; and
(iii) The proposed repairs are adequate to remove the failure to
conform or imminent safety hazard that gave rise to the determination
under paragraph (b) of this section; and
(2) The manufacturer corrects all affected manufactured homes within
60 days of being informed that the request for waiver has been accepted.
The formal plan and notification requirements are waived pending final
resolution of a waiver request under this paragraph (f) as of the date
of such a request. If a waiver request is not accepted, the plan called
for by paragraph (c) of this section shall be submitted within 5 days
after the manufacturer is notified that the request was not accepted.
24 CFR 3282.405 SAA responsibilities.
(a) As set out at 3282.302(b)(5), each SAA is responsible for
overseeing the handling of consumer complaints by manufacturers within
the state. As part of that responsibility, the SAA is required to
monitor manufacturer compliance with this subpart, and particularly with
3282.404. This monitoring will be done primarily by periodically
checking the records that manufacturers are required to keep under
3282.404(b).
(b) If the SAA acting under paragraph (a) finds that a manufacturer
has failed to comply with 3282.404, or if the SAA finds that the
manufacturer has decided not to act under 3282.404(c) where the SAA
believes the manufacturer is required to act, or if the manufacturer
failed to fulfill the requirements of 3282.404(f) after requesting a
waiver under that paragraph, the SAA shall make such preliminary
determinations as it deems appropriate under 3282.407(b), except that
if the affected manufactured homes were manufactured in more than one
state or if it appears that the appropriate preliminary determination
would be an imminent safety hazard or serious defect, the SAA shall
refer the matter to the Secretary.
(c) Where an SAA that is reviewing a plan under 3282.404(c) finds
that the manufacturer is not acting reasonably in refusing to accept
changes to a proposed plan, the SAA shall make such preliminary
determinations as may be appropriate under 3282.407, except that where
it appears that it would be appropriate to make a preliminary
determination of imminent safety hazard or serious defect, the SAA shall
refer the matter to the Secretary.
24 CFR 3282.406 Required manufacturer correction.
A manufacturer required to furnish notification under 3282.404 or
3282.407 shall correct, at its expense, any imminent safety hazard or
serious defect that can be related to an error in design or assembly of
the manufactured home by the manufacturer, including an error in design
or assembly of any component or system incorporated in the manufactured
home by the manufacturer.
24 CFR 3282.407 Notification and correction pursuant to administrative
determination.
(a) Preliminary determinations. (1) Whenever the Secretary has
information indicating the possible existence of an imminent safety
hazard or serious defect in a manufactured home, the Secretary may issue
a preliminary determination to that effect to the manufacturer.
(2) Whenever the information referred to in paragraph (a)(1) of this
section indicates that the manufacturer is required to correct the
imminent safety hazard or serious defect under 3282.406, the Secretary
may issue a preliminary determination to that effect to the
manufacturer.
(3) Whenever an SAA has information indicating that a defect or
noncompliance may exist in a class of manufactured homes that is
identifiable because the cause of the defect or noncompliance is such
that the same defect or noncompliance would probably have been
systematically introduced into more than one manufactured home during
the course of production, and all manufactured homes in the class appear
to have been manufactured in that State, the SAA may issue a preliminary
determination of defect or noncompliance to the manufacturer.
Information on which an SAA may base a conclusion that an appropriate
class of manufactured homes exists may include, but is not limited to,
complaints that can be traced to the same cause, defects known to exist
in supplies of components or parts, information related to the
performance of a particular employee, and information indicating a
failure to follow quality control procedures with respect to a
particular aspect of the manufactured home. If, during the course of
these proceedings, evidence arises that indicates that manufactured
homes in the same identifiable class were manufactured in more than one
state, the SAA shall refer the matter to the Secretary. The Secretary
may make a preliminary determination of noncompliance or defect where
there is evidence that a noncompliance or defect may exist.
(b) Notice and request for presentation of views and evidence. (1)
Notice of the preliminary determination shall be sent by certified mail
and shall include:
(i) The factual basis for the determination and
(ii) The identifying criteria of the manufactured homes known to be
affected and those believed to be in the class of possibly affected
manufactured homes.
(2) The notice shall inform the manufacturer that the preliminary
determination shall become final unless the manufacturer requests a
hearing or presentation of views under subpart D of this part within 15
days of receipt of a Notice of Preliminary Determination of serious
defect, defect, or noncompliance, or within 5 days of receipt of a
Notice of Preliminary Determination of imminent safety hazard.
(3) Promptly upon receipt of a manufacturer's request, a Formal or an
Informal Presentation of Views shall be held in accordance with
3282.152.
(4) Parties may propose in writing, at any time, offers of settlement
which shall be submitted to and considered by the Secretary or the SAA
that issued the Notice of Preliminary Determination. If determined to
be appropriate, the party making the offer may be given an opportunity
to make an oral presentation in support of such offer. If an offer of
settlement is rejected, the party making the offer shall be so notified
and the offer shall be deemed withdrawn and shall not constitute a part
of the record in the proceeding. Final acceptance by the Secretary or
an SAA of any offer to settlement shall automatically terminate any
proceedings related thereto.
(c) Final determinations. (1) If the manufacturer fails to respond
to the notice of preliminary determination within the time period
established in paragraph (b)(2) of this section, or if the SAA or the
Secretary decides that the views and evidence presented by the
manufacturer or others are insufficient to rebut the preliminary
determination, the SAA or the Secretary, as appropriate, shall make a
final determination that an imminent safety hazard, serious defect,
defect, or noncompliance exists. In the event of a final determination
that an imminent safety hazard, serious defect, defect or noncompliance
exists, the SAA or the Secretary shall issue an order directing the
manufacturer to furnish notification. If the Secretary makes a final
determination that the manufacturer is required to correct, the
Secretary shall issue an order directing the manufacturer to provide
correction.
(2) Appeals. When an SAA has made a final determination that a
defect or noncompliance exists, the manufacturer may, within 10 days
after receipt of the notice of such final determination, appeal to the
Secretary under 3282.309.
(d) Where a preliminary determination of defect or noncompliance has
been issued, the manufacturer may, at any time during the proceedings
called for in this section or after the issuance of a Final
Determination and Order, request a waiver of the formal notification
requirements. The manufacturer may request such a waiver from the SAA
that is handling the proceedings, or if the Secretary is handling the
proceedings, from the Secretary. When requesting such a waiver, the
manufacturer shall certify and provide assurances that:
(1) The manufacturer has identified the class of possibly affected
manufactured homes in accordance with 3282.409;
(2) The manufacturer will correct, at the manufacturer's expense, all
affected manufactured homes in the class within a time period specified
by the SAA or the Secretary but not later than 60 days after being
informed of the acceptance of the request for waiver or issuance of the
Final Determination, whichever is later; and
(3) The proposed repairs are adequate to remove the failure to
conform or imminent safety hazard that gave rise to the issuance of the
Preliminary Determination.
The SAA or the Secretary may grant the request for waiver if the
manufacturer agrees under paragraph (b)(4) of this section to an offer
of settlement that includes an order that embodies the assurances made
by the manufacturer.
(42 FR 2580, Jan. 12, 1977, as amended at 51 FR 34468, Sept. 29,
1986; 51 FR 37568, Oct. 23, 1986)
24 CFR 3282.408 Reimbursement for prior correction by owner.
A manufacturer that is required to correct under 3282.406 or that
decides to correct and obtain a waiver under 3282.404(f) or
3282.407(d) shall provide reimbursement for reasonable cost of
correction to any owner of an affected manufactured home who chose to
make the correction before the manufacturer did so.
24 CFR 3282.409 Manufacturer's plan for notification and correction.
(a) This section sets out the requirements that shall be met by
manufacturers in preparing plans they are required to submit under
3282.404(c). The underlying requirement is that the plan show how the
manufacturer will fulfill its responsibilities with respect to
notification and correction that arise under this subpart I.
(b) The plan shall include a copy of the proposed notice that meets
the requirements of 3282.410.
(c) The plan shall identify, by serial number and other appropriate
identifying criteria, all manufactured homes with respect to which
notification is to be provided. The class of manufactured homes with
respect to which notification shall be provided and which shall be
covered by the plan is that class of homes that was or is suspected of
having been affected by the cause of an imminent safety hazard or
failure to conform. The class is identifiable to the extent that the
cause of the imminent safety hazard or failure to conform is such that
it would probably have been systematically introduced into the
manufactured homes in the class during the course of production. In
determining the extent of such a class, the manufacturer may rely either
upon information that positively identifies the extent of the class or
upon information that indicates what manufactured homes were not
affected by the same cause, thereby identifying the class by excluding
those manufactured homes. Methods that may be used in determining the
extent of the class of manufactured homes include, but are not limited
to:
(1) Inspection of manufactured homes produced before and after the
manufactured homes known to be affected;
(2) Inspection of manufacturer quality control records to determine
whether quality control procedures were followed;
(3) Inspection of IPIA records to determine whether the imminent
safety hazard or failure to conform was either detected or specifically
found not to exist in some manufactured homes;
(4) Inspection of the design of the manufactured home in question to
determine whether the imminent safety hazard or failure to conform
resulted from the design itself;
(5) Identification of the cause as relating to a particular employee
or process that was employed for a known period of time or in producing
the manufactured homes manufactured during that time;
(6) Inspection of records relating to components supplied by other
parties and known to contain or suspected of containing imminent safety
hazards or failures to conform.
The class of manufactured homes identified by these methods may
include only manufactured homes actually affected by the imminent safety
hazard or failure to conform if the manufacturer can identify the
precise manufactured homes. If it is not possible to identify the
precise manufactured homes, the class shall include manufactured homes
suspected of containing the imminent safety hazard or failure to conform
because the evidence shows that they may have been affected.
(d) The plan shall include a statement by the IPIA operating in each
plant in which manufactured homes in question were produced. In this
statement, the IPIA shall concur in the methods used by the manufacturer
to determine the class of potentially affected manufactured homes or
state why it believes the methods to have been inappropriate,
inadequate, or incorrect.
(e) The plan shall include a deadline for completion of all
notifications and corrections.
(f) The plan shall provide for notification to be accomplished:
(1) By certified mail or other more expeditious means to the dealers
or distributors of such manufacturer to whom such manufactured home was
delivered. Where a serious defect or imminent safety hazard is
involved, notification shall be sent by certified mail if it is mailed;
and
(2) By certified mail to the first purchaser of each manufactured
home in the class of manufactured homes set out in the plan under
paragraph (c) of this section, and to any subsequent owner to whom any
warranty provided by the manufacturer or required by Federal, State or
local law on such manufactured home has been transferred, to the extent
feasible, except that notification need not be sent to any person known
by the manufacturer not to own the manufactured home in question if the
manufacturer has a record of a subsequent owner of the manufactured
home; and
(3) By certified mail to any other person who is a registered owner
of each manufactured home containing the imminent safety hazard, serious
defect, defect, or noncompliance and whose name has been ascertained
pursuant to 3282.211.
24 CFR 3282.410 Contents of notice.
Except as otherwise agreed by the Secretary or the SAA reviewing the
plan under 3282.404(c), the notification to be sent by the manufacturer
shall include the following:
(a) An opening statement: ''This notice is sent to you in accordance
with the requirments of the National Manufactured Housing Construction
and Safety Standards Act.''
(b) Except where the manufacturer is acting under 3282.404, the
following statement, as appropriate: ''(Manufacturer's name or the
Secretary, or the appropriate SAA)'' has determined that:
(1) An imminent safety hazard may exist in (identifying criteria of
manufactured home).
(2) A serious defect may exist in (identifying criteria of
manufactured home).
(3) A defect may exist in (identifying criteria of manufactured
home).
(4) (Identifying criteria of manufactured home) may not comply with
an applicable ''Federal Home Construction or Safety Standard.''
(c) A clear description of the imminent safety hazard, serious
defect, defect, or noncompliance which shall include:
(1) The location of the imminent safety hazard, serious defect,
defect, or noncompliance in the manufactured home;
(2) A description of any hazards, malfunctions, deterioration or
other consequences which may result from the imminent safety hazard,
serious defect, defect, or noncompliance;
(3) A statement of the conditions which may cause such consequences
to arise; and
(4) Precautions, if any, that the owner should take to reduce the
chance that the consequences will arise before the manufactured home is
repaired.
(d) An evaluation of the risk to manufactured home occupants' safety
and the durability of the manufactured home reasonably related to such
imminent safety hazard, serious defect, defect, or noncompliance,
including:
(1) The type of injury which may occur to occupants of the
manufactured home; and
(2) Whether there will be any warning that a dangerous occurrence may
take place and what that warning would be, and any signs which the owner
might see, hear, smell, or feel which might indicate danger or
deterioration of the manufactured home as a result of the imminent
safety hazard, serious defect, defect, or noncompliance.
(e) If the manufacturer will correct the manufactured home under this
subpart or otherwise, a statement that the manufacturer will correct the
manufactured home.
(f) A statement in accordance with whichever of the following is
appropriate:
(1) Where the manufacturer will correct the manufactured home at no
cost to the owner, the statement shall indicate how and when the
correction will be done, how long the correction will take, and any
other information that may be helpful to the owner.
(2) When the manufacturer does not bear the cost of repair, the
notification shall include a detailed description of all parts and
materials needed to make the correction, a description of all steps to
be followed in making the correction including appropriate
illustrations, and an estimate of the cost of the purchaser or owner of
the correction.
(g) A statement informing the owner that the owner may submit a
complaint to the Secretary if the owner believes that:
(1) The notification or the remedy described therein is inadequate;
or
(2) The manufacturer has failed or is unable to remedy the problem in
accordance with his notification; or
(3) The manufacturer has failed or is unable to remedy within a
reasonable time after the owner's first attempt to obtain remedy.
(h) A statement that any actions taken by the manufacturer under the
Act in no way limit the rights of the owner or any other person under
any contract or other applicable law and that the owner may have further
rights under contract or other applicable law.
24 CFR 3282.411 Time for implementation.
(a) The manufacturer shall complete implementation of the plan for
correction approved under 3282.404(d) on or before the deadline
established in the plan as required by 3282.409(e). The deadline shall
allow a reasonable amount of time to complete the plan, taking into
account the seriousness of the problem, the number of manufactured homes
involved, the immediacy of any risk, and the difficulty of completing
the action. The seriousness and immediacy of any risk shall be given
greater weight than other considerations. If a manufacturer is required
to correct an imminent safety hazard or serious defect under 3282.406,
the deadline shall be no later than 60 days after approval of the plan.
(b) The manufacturer shall complete the implementation of any
notifications and corrections being carried out under an order of an SAA
or the Secretary under 3282.407(c) on or before the deadline
established in the order. In establishing each deadline, an SAA or the
Secretary shall allow a reasonable time to complete all notifications
and corrections, taking into account the seriousness of the imminent
safety hazard, serious defect, defect or noncompliance, the number of
manufactured homes involved, the location of the homes, and the extent
of correction required, except that in no case shall the time allowed
exceed the following limits:
(1) In the case of a Final Determination of imminent safety hazard,
30 days after the issuance of the Final Determination.
(2) In the case of a Final Determination of serious defect, defect or
noncompliance, 60 days after the issuance of the Final Determination.
(c) An SAA that approved a plan or is handling a proceeding or the
Secretary may grant an extension of the deadlines included in a plan or
order if the manufacturer requests such an extension in writing and
shows good cause for the extension, and the SAA or the Secretary is
satisfied that the extension is justified in the public interest. When
the Secretary grants an extension, the Secretary shall notify the
manufacturer and shall publish notice of such extension in the Federal
Register. When an SAA grants an extension, the SAA shall notify the
manufacturer, and forward to the Secretary a draft notice of the
extension to be published in the Federal Register.
24 CFR 3282.412 Completion of remedial actions and report.
(a) Where a manufacturer is required to provide notification under
this subpart, the manufacturer shall maintain in its files for five
years from the date the notification campaign is completed a copy of the
notice sent and a complete list of the people and their addresses. The
files referred to in this section shall be organized such that each
notification and correction campaign can be readily identified and
reviewed by an SAA or the Secretary.
(b) Where a manufacturer is required to provide correction under
3282.406 or where the manufacturer otherwise corrects under 3282.404(f)
or 3282.407(d), the manufacturer shall maintain in its files, for five
years from the date the correction campaign is completed, one of the
following, as appropriate, for each manufactured home involved.
(1) Where the correction is made, a certification by the manufacturer
that the repair was made to satisfy completely the standards in effect
at the time the manufactured home was manufactured and that any imminent
safety hazard has been eliminated, or
(2) Where the owner refuses to allow the manufacturer to repair the
home, a certification by the manufacturer that the owner has been
informed of the problem which may exist in the manufactured home, that
the owner has been informed of any risk to safety or durability of the
manufactured home which may result from the problem, and that an attempt
has been made to repair the problems only to have the owner refuse the
repair.
(c) If any actions taken under this subpart are not adequate under
the approved plan or an order of the Secretary or an SAA, the
manufacturer may be required to provide additional notifications or
corrections to satisfy the plan or order.
(d) If, in the course of making corrections under any of the
provisions of this subpart, the manufacturer creates an imminent safety
hazard or serious defect, the manufacturer shall correct the imminent
safety hazard or serious defect under 3282.406.
(e) The manufacturer shall, within 30 days after the deadline for
completing any notifications and, where required, corrections, under an
approved plan or under an order of an SAA or the Secretary, or any
corrections required to obtain a waiver under 3282.404(f) or
3282.407(d), provide a complete report of the action taken to the SAA or
the Secretary that approved the plan under 3282.404(d), granted the
waiver, or issued the order under 3282.407(c), and to any other SAA or
the Secretary that forwarded a relevant complaint or information to the
manufacturer under 3282.403.
24 CFR 3282.413 Replacement or repurchase of manufactured home from
purchaser.
(a) Whenever an imminent safety hazard or serious defect which must
be corrected by the manufacturer at his expense under 3282.407 cannot
be repaired within 60 days in accordance with section 615(i) of the Act,
the Secretary may require:
(1) That the manufactured home be replaced by the manufacturer with a
manufactured home substantially equal in size, equipment, and quality,
and either new or in the same condition the defective manufactured home
would have been in at the time of discovery of the imminent safety
hazard or serious defect had the imminent safety hazard or serious
defect not existed; or
(2) That the manufacturer take possession of the manufactured home
and refund the purchase price in full, less a reasonable allowance for
depreciation based on actual use if the home has been in the possession
of the owner for more than one year. Such depreciation shall be based
upon an appraisal system approved by the Secretary, and shall not take
into account damage or deterioration resulting from the imminent safety
hazard or serious defect.
(b) In determining whether to order replacement or refund by the
manufacturer, the Secretary shall consider:
(1) The threat of injury or death to manufactured home occupants;
(2) Any costs and inconvenience to manufactured home owners which
will result from the lack of adequate repair within the specified
period;
(3) The expense to the manufacturer;
(4) Any obligations imposed on the manufacturer under contract or
other applicable law of which the Secretary has knowledge; and
(5) Any other relevant factors which may be brought to the attention
of the Secretary.
(c) In those situations where, under contract or other applicable
law, the owner has the right of election between replacement and refund,
the manufacturer shall inform the owner of such right of election and
shall inform the Secretary of the election, if any, by the owner.
(d) This section applies where an attempted correction of an imminent
safety hazard or serious defect relieves the safety problem but does not
bring the home in conformity to the standards.
(e) Where replacement or refund by the manufacturer is ordered under
this section, it shall be carried out within 30 days of the Secretary's
order to replace the manufactured home or refund the purchase price
unless the Secretary, for good cause shown, grants an extension of time
for implementation of such order and publishes notice of extension in
the Federal Register.
24 CFR 3282.414 Manufactured homes in the hands of dealers and
distributors.
(a) The manufacturer is responsible for correcting any failures to
conform and imminent safety hazards which exist in manufactured homes
which have been sold or otherwise released to a distributor or dealer
but which have not yet been sold to a purchaser. This responsibility
generally does not extend to failures to conform or imminent safety
hazards that result solely from transit damage that occurs after the
manufactured home leaves the control of the manufacturer, unless such
transit damage is reasonably foreseeable by the manufacturer when the
home is released by the manufacturer. This section sets out the
procedures to be followed by dealers and distributors for handling
manufactured homes in such cases. Regardless of whether the
manufacturer is responsible for repairing a manufactured home, no dealer
or distributor may sell a manufactured home if it contains a failure to
conform or an imminent safety hazard.
(b) Whenever a dealer or distributor finds a problem in a
manufactured home which the manufacturer is responsible for correcting
under paragraph (a) of this section, the dealer or distributor shall
contact the manufacturer, provide full information concerning the
problem, and request appropriate action by the manufacturer in accord
with paragraph (c) of this section. Where the manufacturer agrees to
correct, the manufacturer shall maintain a complete record of its
actions. Where the manufacturer authorizes the dealer to make the
necessary corrections on a reimbursable basis, the dealer or distributor
shall maintain a complete record of its actions. Agreement by the
manufacturer to correct or to authorize corrections on a reimbursable
basis under this paragraph constitutes a determination of the Secretary
for purposes of section 613(b) of the Act with respect to judicial
review of the amount which the manufacturer agrees to reimburse the
dealer or distributor for corrections.
(c) Upon a final determination by the Secretary or a State
Administration Agency under 3282.407, or upon a determination by a
court of competent jurisdiction that a manufactured home fails to
conform to the standard or contains an imminent safety hazard after such
manufactured home is sold or otherwise released by a manufacturer to a
distributor or a dealer and prior to the sale of such manufactured home
by such distributor or dealer to a purchaser, the manufacturer shall
have the option to either:
(1) Immediately furnish, at the manufacturer's expense, to the
purchasing distributor or dealer the required conforming part or parts
or equipment for installation by the distributor or dealer on or in such
manufactured home, and the manufacturer shall reimburse such distributor
or dealer for the reasonable value of such installation plus a
reasonable reimbursement of not less than one per centum per month of
the manufacturer's or distributor's selling price prorated from the date
of receipt by certified mail of notice of noncompliance to the date such
manufactured home is brought into compliance with the standards, so long
as the distributor or dealer proceeds with reasonable diligence with the
installation after the part or component is received; or
(2) Immediately repurchase, at the manufacturer's expense, such
manufactured home from such distributor or dealer at the price paid by
such distributor or dealer, plus all transportation charges involved and
a reasonable reimbursement of not less than one per centum per month of
such price paid prorated from the date of receipt by certified mail of
notice of the imminent safety hazard, serious defect, defect or
noncompliance to the distributor. The value of such reasonable
reimbursements as specified in this paragraph shall be fixed by mutual
agreement of the parties or by a court in an action brought under
section 613(b) of the Act.
(d) This section shall not apply to any manufactured home purchased
by a dealer or distributor which has been leased by such dealer or
distributor to a tenant for purposes other than resale. In that
instance the dealer or distributor has the remedies available to a
purchaser under this subpart.
24 CFR 3282.415 Notices, bulletins and other communications.
Each manufacturer shall, at the time of dispatch, furnish to the
Secretary a true or representative copy of all notices, bulletins, and
other written communications to the dealers or distributors of such
manufacturer or purchasers or owners of manufactured homes of such
manufacturers regarding any serious defect or imminent safety hazard
which may exist in any such manufactured homes produced by such
manufacturer. Manufacturers shall keep complete records of all other
communications with dealers, owners, and purchasers regarding
noncompliances, and defects.
24 CFR 3282.416 Supervision of notification and correction actions.
(a) The IPIA in each manufacturing plant shall be responsible for
assuring that notifications are sent to all owners, purchasers, dealers,
or distributors of whom the manufacturer has knowledge under 3282.211
or otherwise as required by these regulations, and the IFIA shall be
responsible for assuring that the required corrections are carried out
by auditing the certificates required by 3282.412.
(b) The SAA or Secretary to which the report required by 3282.412(e)
is sent shall be responsible for assuring through oversight that
remedial actions described in the report have been carried out as
described in the report.
(c) The SAA of the state in which an affected manufactured home is
located may inspect that manufactured home to determine whether any
required correction is carried out to the approved plan or, if there is
no plan, to the standards or other approval obtained by the
manufacturer.
24 CFR 3282.416 Subpart J -- Monitoring of Primary Inspection Agencies
24 CFR 3282.451 General.
The actions of all primary inspection agencies accepted under subpart
H shall be monitored by the Secretary or the Secretary's agent to
determine whether the PIAs are fulfilling their responsibilities under
these regulations. This monitoring shall be carried out primarily
through joint monitoring teams made up of personnel supplied by SAAs and
by the Secretary or the Secretary's agent. Monitoring parties shall
make recommendations to the Secretary with respect to final acceptance
of PIAs under 3282.361(e) and 3282.362(e), continued acceptance, and
disqualification or requalification under 3282.356, and with respect to
any changes which PIAs should make in their operations in order to
continue to be approved. Based on this monitoring, the Secretary shall
determine whether PIAs should continue to be approved under these
regulations.
24 CFR 3282.452 Participation in monitoring.
(a) Joint monitoring teams. (1) The Secretary or the Secretary's
agent shall develop and coordinate joint monitoring teams which shall be
made up of qualified personnel provided by SAAs and by the Secretary or
the Secretary's agent. The Secretary or the Secretary's agent shall
determine whether personnel are qualified based on education or
experience.
(2) The joint monitoring teams will operate generally on a regional
basis. To the extent possible, the teams shall be so scheduled that
personnel provided by an SAA will be monitoring operations in
manufactured home plants from which manufactured homes are shipped into
their State.
(3) Personnel from an SAA shall not participate on joint monitoring
teams operating within their State.
(4) States are encouraged but not required to participate on joint
monitoring teams.
(b) State monitoring. A State may carry out monitoring of IPIA
functions at plant facilities within the State if the State is not
acting as an IPIA. Where a State wishes to carry out monitoring
activities it shall do so in coordination with the Secretary and the
Secretary's agent. To the extent that the State is performing adequate
monitoring, the frequency of the joint team monitoring may be reduced to
one visit per year consistent with the requirements of 3282.453.
(c) Review of staff capability. The monitoring party shall review
the capability of the PIA's staff to perform the functions it is
required to perform.
(d) Review of interpretations. The monitoring party shall review all
records of interpretations of the standards made by the PIA to determine
whether they are consistent and to determine whether there are any
conflicts which should be referred to the Secretary for determination.
(e) DAPIA. Monitoring parties shall review on a random basis at
least 10 percent of the design and quality assurance manual approvals
made by each DAPIA in each year.
(f) IPIA. The monitoring parties shall assure that the IPIAs are
carrying out all of the functions for which they have been accepted. In
particular, they shall assure that the manufacturing process is as
stated in the certification reports, that the IPIAs are carrying out the
required number of inspections, that inspections are effective, and that
the IPIAs are maintaining complete label control as required by
3282.362. A monitoring team shall monitor the IPIA's office procedures,
files, and label control and the monitoring team shall send copies of
its report to the Secretary or the Secretary's agent, which shall send
copies to all monitoring teams which monitor the operations of the
subject IPIA.
(g) Remedial actions. The monitoring parties shall review the
remedial action records of the manufacturers and of the primary
inspection agencies closely to determine whether the primary inspection
agencies have been carrying out their responsibilities with respect to
remedial actions.
24 CFR 3282.453 Frequency and extent of monitoring.
(a) The actions of all primary inspection agencies shall be monitored
at a frequency adequate to assure that they are performing consistently
and fulfilling their responsibilities under these regulations. Every
aspect of the primary inspection agencies' performance shall be
monitored.
(b) Frequency of monitoring. The performance of each primary
inspection agency shall be monitored during its period of provisional
acceptance by a complete review of its records and, in the case of IPAs,
by a complete inspection of the operations of at least one manufacturing
plant which it has approved or in which it is operating. After the
initial inspection, the performance of each primary inspection agency
shall be monitored four times per year, except that the number of
monitoring visits may be decreased to a minimum of one per year if the
performance of the primary inspection agency is deemed by the Secretary
or the Secretary's agent to be superior, and it may be increased as
necessary if performance is suspect. There shall be a minimum of one
review per year of the records of each primary inspection agency, and
there shall be more reviews as needed.
24 CFR 3282.453 Subpart K -- Departmental Oversight
24 CFR 3282.501 General.
The Secretary shall oversee the performance of SAAs, the Secretary's
agent, and primary inspection agencies as follows:
(a) The Secretary shall review SAA reports to ensure that States are
taking appropriate actions with regard to the enforcement of the
standards and with respect to the functions for which they are approved
under these regulations.
(b) The Secretary shall review monitoring reports submitted by the
Secretary's agent to determine that it is performing in accordance with
the contract between it and the Secretary.
(c) The Secretary shall review monitoring reports to determine
whether PIAs are fulfilling their responsibilities under these
regulations.
(d) The Secretary shall make random visits for the purpose of
overseeing the activities of SAAs and the Secretary's agent.
(e) The Secretary shall take such other actions to oversee the system
established by these regulations as it deems appropriate.
(f) All records maintained by all parties acting under these
regulations with respect to those actions shall be available to the
Secretary, the Secretary's agent, and where appropriate, SAAs and PIAs
for review at any reasonable time.
24 CFR 3282.502 Departmental implementation.
To the extent that SAAs or any parties contracting with the Secretary
do not perform functions called for under these regulations, those
functions shall be carried out by the Secretary with its own personnel
or through other appropriate parties.
24 CFR 3282.503 Determinations and hearings.
The Secretary shall make all the determinations and hold such
hearings as are required by these regulations, and the Secretary shall
resolve all disputes arising under these regulations.
24 CFR 3282.503 Subpart L -- Manufacturer, IPIA and SAA Reports
24 CFR 3282.551 Scope and purpose.
This subpart describes the reports which shall be submitted by
manufacturers, PIAs and SAAs as part of the system of enforcement
established under these regulations. Additional reports described in
subpart I are required when corrective actions are taken under that
subpart.
24 CFR 3282.552 Manufacturer reports for joint monitoring fees.
For each month, the manufacturer shall submit to the IPIA in each of
its manufacturing plants a report that includes the serial numbers of
each manufactured home manufactured at that plant during that preceding
month, and the State of first location, after leaving the manufacturing
plant, of such manufactured homes. The State of first location for the
purpose of this report is the State of the premises of the distributor,
dealer or purchaser to whom the manufactured home is first shipped. The
report for each month shall be submitted by the tenth day of the
following month.
24 CFR 3282.553 IPIA reports.
Each IPIA shall submit by the twentieth day of each month to each
SAA, or if no SAA to the Secretary, in each state where it is engaged in
the inspection of manufacturing plants, a report of the operations of
each manufacturer in that State for the preceding month which includes
the following information:
(a) The number of single-wide and double-wide manufactured homes
labeled in the preceding month;
(b) The number of inspection visits made to each manufacturing plant
in the preceding month; and
(c) The number of manufactured homes with a failure to conform to the
standards or an imminent safety hazard during the preceding month found
in the manufacturing plant.
The manufacturers report for the preceding month described in
3282.552 shall be attached to each such IPIA report as an appendix
thereto.
24 CFR 3282.554 SAA reports.
Each SAA shall submit, prior to the last day of each month, to the
Secretary a report covering the preceding month which includes:
(a) The description and status of all presentations of views,
hearings and other legal actions during the preceding month; and
(b) The description of the SAA's oversight activities and findings
regarding consumer complaints, notification and correction actions
during the preceding month. The IPIA report for the preceding month
described in 3282.553, as well as the reports described in 3282.413
and manufacturer reports under 3282.404(d), which were received during
the preceding month, shall be attached to each such SAA report as an
appendix thereto.
24 CFR 3282.554 PART 3283 -- MANUFACTURED HOME CONSUMER MANUAL REQUIREMENTS
24 CFR 3282.554 Subpart A -- General
Sec.
3283.1 Scope.
3283.2 Definitions.
3283.3 Manual requirement; effective date.
24 CFR 3282.554 Subpart B -- Distribution and Adequacy of the Manual
3283.51 Scope.
3283.52 Manual distribution.
3283.53 Inadequate consumer manuals.
24 CFR 3282.554 Subpart C -- Guidelines
3283.101 Scope and purpose.
3283.102 Statements about the Act and its protections.
3283.103 Written warranties.
3283.104 Setting up and anchoring the manufactured home.
3283.105 Safety.
3283.106 Maintenance.
3283.107 Relocating the manufactured home.
3283.108 Insurance.
Authority: Sec. 7(d), Department of HUD Act (42 U.S.C. 3535(d)).
Source: 42 FR 17296, Mar. 31, 1977, unless otherwise noted.
Editorial Note: For nomenclature changes to this part, see 47 FR
28092, June 29, 1982.
24 CFR 3282.554 Subpart A -- General
24 CFR 3283.1 Scope.
This part sets out the requirements that shall be met by manufactured
home manufacturers and dealers in order to assure that consumer manuals
containing appropriate information are provided to manufactured home
purchasers as required by section 617 of the National Manufactured
Housing Construction and Safety Standards Act, 42 U.S.C. 5416. This
subpart sets out the definitions applicable to the part and the
requirement that a consumer manual be provided with each manufactured
home that enters into the first stage of production on or after July 31,
1977.
(Secs. 617 and 625 of the National Manufactured Housing Construction
and Safety Standards Act, 42 U.S.C. 5416 and 5424, and sec. 7(d) of the
Dept. of Housing and Urban Development Act, (42 U.S.C. 3535(d)))
(42 FR 33499, June 30, 1977)
24 CFR 3283.2 Definitions.
(a) Anchor means to secure to the ground by straps, cables, turn
buckles, chains, ties, or other devices designed to prevent the
manufactured home from being unstable in high winds or other conditions
that might cause an unsecured home to overturn or otherwise suffer
damage because it is not adequately secured to the ground.
(b) Component means any part, material or appliance which is built in
as an integral part of the manufactured home during the manufacturing
process.
(c) Condensation means the process of reducing a gas or vapor to a
liquid form which is evidenced in a manufactured home by the
accumulation of moisture on windows and other surfaces.
(d) Consumer manual means a document or series of documents included
in a package that substantially complies with the guideline set out in
subpart C of this part.
(e) Dealer means any person engaged in the sale, leasing or
distribution of new manufactured homes primarily to persons who, in good
faith, purchase or lease a manufactured home for purposes other than
resale.
(f) Diagram means a drawing or plan that outlines and explains the
parts and operation of a major system in the manufactured home, such as
the plumbing, electrical, heating, cooling and ventilating systems.
(g) Distributor means any person engaged in the sale and distribution
of manufactured homes for resale.
(h) Federal Manufactured Home Construction and Safety Standard means
a reasonable standard for the construction, design and performance of a
manufactured home which meets the needs of the public, including the
need for quality, durability and safety.
(i) Major systems means those functional units that are supplied with
the manufactured home during the manufacturing process and includes the
structural, electrical, plumbing and heating and cooling systems of the
manufactured home.
(j) Manufacturer means any person engaged in manufacturing or
assembling manufactured homes, including any person engaged in importing
manufactured homes for resale, except that it does not include a person
engaged in manufacturing modular homes that are exempt from the Federal
Manufactured Home Construction and Safety Standards under 24 CFR 3280.7.
(k) (Same as 3280.2(a)(16).)
(l) Purchaser means the first person purchasing a manufactured home
in good faith for purposes other than resale.
(m) Written warranty means: (1) Any written affirmation of fact or
written promise made in connection with the sale of a consumer product
by a supplier to a buyer which relates to the nature of the material or
workmanship and affirms or promises that such material or workmanship is
defect free or will meet a specified level of performance over a
specified period of time; or (2) any undertaking in writing in
connection with the sale by a supplier of a consumer product to refund,
repair, replace, or take other remedial action with respect to such
product in the event that such product fails to meet the specifications
set forth in the undertaking, which written affirmation, promise or
undertaking becomes part of the basis of the bargain between a supplier
and a buyer for purposes other than resale of such product.
(42 FR 17296, Mar. 31, 1977, as amended at 44 FR 20680, April 6,
1979; 47 FR 28093, June 29, 1982)
24 CFR 3283.3 Manual requirement; effective date.
A consumer manual shall be provided by the manufacturer with each
manufactured home that enters the first stage of production on or after
July 31, 1977. The manual shall be provided as set out in subpart B of
this part.
(Secs. 617 and 625 of the National Manufactured Housing Construction
and Safety Standards Act, 42 U.S.C. 5416 and 5424, and sec. 7(d) of the
Dept. of Housing and Urban Development Act (42 U.S.C. 3535 (d)))
(42 FR 33499, June 30, 1977)
24 CFR 3283.3 Subpart B -- Distribution and Adequacy of the Manual
24 CFR 3283.51 Scope.
This subpart sets out the manner in which consumer manuals are to be
provided to consumers and procedures for assuring that consumer manuals
are correctly distributed. It also sets out requirements to be met by
manufacturers if manuals are found to be inadequate.
24 CFR 3283.52 Manual distribution.
(a) Each manufacturer shall provide a consumer manual with each
manufactured home that enters the first stage of production on or after
July 31, 1977 by placing a manual in each such manufactured home before
the manufactured home leaves the manufacturing plant. The manual shall
be placed in a conspicuous location in a manner likely to assure that it
is not removed until the purchaser removes it.
(b) If a manufacturer is informed that a purchaser did not receive a
consumer manual, the manufacturer shall provide the appropriate manual
to the purchaser within 30 days of being so informed.
(c) No dealer or distributor may interfere with the distribution of
the consumer manuals. Where necessary, the dealer or distributor shall
take any appropriate steps to assure that the purchaser receives a
consumer manual from the manufacturer.
(Secs. 617 and 625 of the National Manufactured Housing Construction
and Safety Standards Act, 42 U.S.C. 5416 and 5424, and sec. 7(d) of the
Dept. of Housing and Urban Development Act (42 U.S.C. 3535 (d)))
(42 FR 17296, Mar. 31, 1977, as amended at 42 FR 33499, June 30,
1977)
24 CFR 3283.53 Inadequate consumer manuals.
If a consumer manual or a change or revision to a manual does not
substantially comply with subpart C, the manufacturer shall cease
distribution of the consumer manual and shall provide a corrected manual
for each manufactured home, for which the inadequate or incorrect manual
or revision was provided. A manual substantially complies with subpart
C if it presents current material on each of the subjects covered in
subpart C in sufficient detail to inform consumers about the operation,
maintenance, and repair of the manufactured home.
24 CFR 3283.53 Subpart C -- Guidelines
24 CFR 3283.101 Scope and purpose.
(a) The purpose of this subpart is to provide guidelines to
manufacturers which will assure that manufactured home consumers are
given information concerning proper home maintenance, avoidance of
potential safety hazards, and remedies which may be available under the
Act.
(b) No precise format is required. The information may be offered in
a single document or in several documents, all of which are part of a
single package. The information shall be presented in a clear and
understandable manner and an index should be prepared so that consumers
can readily locate any information provided as part of the package.
24 CFR 3283.102 Statements about the Act and its protections.
(a) The manual should include an explanation of the National
Manufactured Housing Construction and Safety Standards Act and of the
Federal manufactured home construction and safety standards. The
explanation should discuss the protections offered by the standards, the
limitations of the standards and the remedies available to the consumer
under the Act. The explanation should use the following language or its
equivalent:
The National Manufactured Housing Construction and Safety Standards
Act of 1974 was enacted to improve the quality and durability of
manufactured homes and to reduce the number of injuries and deaths
caused by manufactured home accidents. The Federal manufactured home
construction and safety standards issued under the Act govern how
manufactured homes must be constructed. Your manufactured home was
manufactured to the standards. The standards cover the planning and
construction of your home. They were developed so that you would have a
safe, durable home. The standards do not cover such aspects of the
manufactured home as furniture, carpeting, certain appliances, cosmetic
features of the home and additional rooms or sections of the home that
you have added.
The Act provides that if for some reason your manufactured home is
found not to meet the standard or to contain safety hazards, the
manufacturer of the manufactured home must notify you of that fact. In
some cases where there is a safety hazard involved, the Act requires the
manufacturer to correct the manufactured home at no cost to you or to
replace the home or refund all or a percentage of the purchase price.
If you believe you have a problem for which the Act provides a remedy,
you should contact the manufacturer, the manufactured home agency in
your state (see the list on page of this manual), or the Department of
Housing and Urban Development. Our address is (state the manufacturer's
address). We recommend that you contact us first, because that is the
quickest way to have your complaint considered.
(b) The manual should state the location of the data plate and should
explain the significance of all the information printed on it,
particularly the significance of the zone information and the wind and
roof load maps.
(c) The manual should include a list of the State Administrative
Agencies (SAAs) that have been approved or conditionally approved under
3282.305 of this part. The list should include all SAAs listed in this
section as of the date the manual or revision is prepared for printing.
Manufacturers may contact HUD for any update to the SAA list that
appears in this section by sending a stamped, self-addressed envelope
to: List Control, Office of Manufactured Housing and Regulatory
Functions, Room 4224, U.S. Department of Housing and Urban Development,
451 Seventh Street, SW., Washington, DC 20410-8000.
The following States have been approved or conditionally approved to
act as SAAs:
Alabama -- Alabama Manufactured Housing Commission, 908 South Hull
Street, Montgomery, AL 36130-3401, (205) 261-4036
Arizona -- Office of Manufactured Housing, 801 E. Jefferson, Suite
202, Phoenix, AZ 85034, (602) 255-4072
Arkansas -- Manufactured Home Commission, 1022 High Street, Suite
505, Little Rock, AR 72202, (501) 371-1641
California -- Manufactured Housing Section, Division of Codes &
Standards, Department of Housing and Community Development, P.O. Box 31,
Sacramento, CA 95801, (916) 323-9803
Colorado -- Division of Housing, Department of Local Affairs, 1313
Sherman Street, Room 419, Denver, CO 80203, (303) 866-2033
Florida -- Department of Highway Safety and Motor Vehicles, Division
of Motor Vehicles, Neil Kirkman Building, Room A 129, 2900 Apalachee
Parkway, Tallahassee, FL 32301-8209, (904) 488-7657
Georgia -- State Fire Marshal's Office, Manufactured Homes Division,
620 West Tower, No. 2 Martin Luther King, Jr. Drive, Atlanta, GA
30334, (404) 656-2064
Idaho -- Department of Labor and Industrial Service, 277 North Sixth
Street, Boise, ID 83720, (208) 334-3896
Indiana -- Department of Fire Prevention and Building Safety,
Industrialized Building Systems/Code Enforcement Div., 1099 N. Meridian
Street, Suite 900, Indianapolis, IN 46204, (317) 232-1405
Iowa -- Building Code Bureau, Division of the State Fire Marshall,
Department of Public Safety, Wallace State Office Building, Des Moines,
IA 50319, (515) 281-3807
Kentucky -- Department of Housing, Building and Construction, U.S.
127 South Building, Frankfort, KY 40601, (502) 564-3626
Louisiana -- Mobile Home Division, 1033 North Lobdell Avenue, Baton
Rouge, LA 70806, (504) 925-4911
Maine -- Manufactured Housing Board, Department of Professional and
Financial Regulation, State House Station 32, Augusta, ME 04333, (207)
289-2955
Maryland -- Building Codes Administration-DECD, Department of
Economic and Community Development, 45 Calvert Street, Annapolis, MD
21401, (301) 974-2701
Michigan -- Department of Commerce, Mobile Home Division, Corporation
& Securities Bureau, 6546 Mercantile Way, P.O. Box 30222, Lansing, MI
48909, (517) 334-6203
Minnesota -- Department of Administration, Building Codes and
Standards Division, 408 Metro Square Building, 7th and Robert Streets,
St. Paul, MN 55101, (612) 296-4628
Mississippi -- Office of the Fire Marshall, 416 Woolfolk Building,
P.O. Box 22542, Jackson, MS 39205-2542, (601) 359-1061
Missouri -- Public Service Commission, Mobile Homes and Recreational
Vehicles Division, P.O. Box 360, Jefferson City, MO 65102, (314)
751-7119
Nebraska Department of Health, Division of Housing and Environmental
Health, 301 Centennial Mall South, P.O. Box 95007, Lincoln, NE 68509,
(402) 471-2541
Nevada -- Manufactured Housing Division, Nevada Department of
Commerce, Capitol Complex, Carson City, NV 89710, (702) 885-4298
New Jersey -- Department of Community Affairs, Division of Housing
and Development-BCCE, CN 805 Manufactured Housing Construction, Trenton,
NJ 08625-0804, (609) 292-7142
New Mexico -- Regulation and Licensing Department, Manufactured
Housing Division, Santa Fe, NM 87503, (505) 827-6340
New York -- Housing and Building Codes Bureau, Division of Housing
and Community Renewal, One Fordham Plaza, Bronx, NY 10458
(212) 519-5273 (Kessner) (212) 488-4910 (Jordan)
North Carolina -- Department of Commerce, Council, Boards &
Government Relations Division, P.O. Box 26307, Raleigh, NC 27611, (919)
733-3901
Oregon -- Department of Commerce, Building Codes Division, MHRV
Section, 401 Labor and Industries Building, Salem, OR 97310, (503)
378-8451
Pennsylvania -- Division of Manufactured Housing, Department of
Community Affairs, Room 509, Forum Building, Harrisburg, PA 17120, (717)
787-9682
Rhode Island -- Department of Community Affairs, Building Commission,
1270 Mineral Spring Avenue, North Providence, RI 02904, (401) 277-3033
South Carolina -- Manufactured Housing Section, Budget and Control
Board, Division of General Services, 300 Gervais Street, Columbia, SC
29201, (803) 758-5378
South Dakota -- Department of Commerce and Regulation, Commercial
Inspection, 118 W. Capitol, Pierre, SD 57501, (605) 773-3697
Tennessee -- Department of Commerce and Insurance, Division of Fire
Prevention, 1808 West End Building, Suite 500, Nashville, TN 37219-5319,
(615) 741-7170
Texas -- Texas Department of Labor and Standards, P.O. Box 12157,
Austin, TX 78711, (512) 463-5520
Utah -- Department of Business Regulation, Contractors Division-MH &
RV, P.O. Box 45802, Salt Lake City, UT 84145, (801) 530-6727
Virginia -- Division of Building Regulatory Services, Department of
Housing and Community Development, 205 N. 4th Street, Room M-4,
Richmond, VA 23219, (804) 786-4846
Washington -- Department of Labor and Industries, Construction
Compliance Inspection, 520 S. Water Street, Olympia, WA 98504, (206)
586-0215
Wisconsin -- Department of Industry, Labor and Human Relations,
Safety and Building Division, P.O. Box 7969, Madison, WI 53707
(608) 266-1748 (608) 267-7935 (Turner)
(d) The manual should state that the Department of Housing and Urban
Development (HUD) is the Federal agency administering the Act and that
any questions concerning the Act or a consumer's rights under the Act
should be directed to HUD. The manual should advise consumers that in
order to contact HUD, they should refer to the Department of Housing and
Urban Development under listings for the U.S. Government in their
telephone book. In calling or writing the local HUD office, consumers
should be directed to address their inquiry or call to the ''Consumer
Complaint Officer'' in their local HUD or FHA Office. Consumers should
be advised that they may contact the Central HUD Office directly by
writing or calling the Office of Manufactured Housing and Regulatory
Functions, Compliance Branch, telephone (202) 755-6920 or (202)
755-6584. (These are not toll-free numbers.)
(42 FR 17296, Mar. 31, 1977, as amended at 52 FR 11644, Apr. 10,
1987)
24 CFR 3283.103 Written warranties.
(a) The manual should state whether or not the manufacturer provides
a written warranty covering the manufactured home. If the manufacturer
provides written warranty, the manual should explain in clear and
understandable language what protections the warranty provides and how
the consumer can obtain service under the warranty. The manual should
specifically and clearly describe:
(1) What repairs the manufacturer will pay for under the warranty and
what repairs, if any, the manufacturer will not pay for;
(2) How long the warranty protection lasts;
(3) What the consumer must do to maintain warranty protections,
including any services that the consumer must obtain or provide at the
consumer's expense;
(4) What actions or conditions could void the warranty; and
(5) Exactly what steps the consumer should take to obtain warranty
service, including any informal dispute settlement procedures offered by
the manufacturer prior to pursuit of legal remedies.
(b) The manual should state what appliances, components or other
aspects of the manufactured home are not covered by the manufacturer's
written warranty and identify any warranty certificates which have been
provided for any of these items.
(c) Compliance with paragraph (a) of this section may be obtained by
including, as a document of the consumer manual, the manufacturer's
written warranty statement that meets the requirements issued by the
Federal Trade Commission under the Magnuson-Moss Warranty Federal Trade
Commission Improvement Act, 15 U.S.C. 2301 et seq. (Magnuson-Moss).
However, this section is not to be construed as governing the making or
content of written warranties on manufactured homes. Any such written
warranties must comply with the Magnuson-Moss requirements.
24 CFR 3283.104 Setting up and anchoring the manufactured home.
(a) The manual should include an explanation of procedures
recommended to be followed in setting up the manufactured home. The
explanation should include: (1) Site preparation procedures; (2) the
types of foundations for which the home was designed; (3) procedures
for leveling the home; (4) procedures for connecting the utilities;
and (5) suggested anchoring procedures for wind-upset and sliding. If
practicable, the manual should include a list of sources the consumer
may contact to obtain set-up and anchoring services. The manual should
advise the consumer of the differing requirements for manufactured homes
located in ''hurricane'' and ''non hurricane'' wind zones.
(b) The manual should include a recommendation that the home be
professionally inspected after it is set up to assure that it has not
been damaged in transit and is properly set up.
24 CFR 3283.105 Safety.
(a) Fire safety. The manual should state the location of the
following safety features required by the standards and explain how they
are operated: (1) Smoke detectors; (2) exit doors and bedroom egress
windows; and (3) any other emergency escape systems.
(b) Wind safety. The manual should state that in order for the
manufactured home to be secure against high winds, it should be anchored
to the ground. The manual should caution the owner that if the
manufactured home is not properly anchored, it is highly susceptible to
wind damage when high wind conditions occur.
(c) Systems safety. The manual should explain how the electric,
plumbing, and heating systems of the manufactured home may be rendered
unsafe through improper use or treatment and what hazards may result.
The manual should state the location and purpose of utility shut-off
valves and switches and how they should be used to prevent hazards.
24 CFR 3283.106 Maintenance.
(a) The manual should contain a detailed explanation of how the
consumer should care for the manufactured home, including a simple
maintenance and inspection chart that can be used as a checklist by the
consumer. The explanation should describe any aspects of operation and
maintenance that are unique to manufactured homes, and it should
emphasize that the consumer is responsible for adequate maintenance.
The explanation should include a list of components, appliances or major
systems for which an operational manual or instructions were provided by
the manufacturer of the item and a statement that the consumer should
make sure that those manuals or instructions were provided with the
manufactured home.
(b) The manual should discuss the possible consequences of inadequate
maintenance or faulty operation. In particular, the manual should
discuss problems which may arise from condensation or from inadequate
insulation of the piping in the manufactured home and how those problems
can be avoided.
(c) The manual should state the maintenance and repair procedures or
types of procedures for which specialized knowledge or skills are
required.
(d) The manual should state how the purchaser can obtain diagrams of
the structural, electrical, plumbing and heating, cooling and
transportation systems.
24 CFR 3283.107 Relocating the manufactured home.
The manual should identify and explain the factors that the consumer
should take into account whenever the manufactured home may be
relocated. These should include weight and balance considerations;
securing of appliances, furniture, etc.; and recommended conditions of
the manufactured home's transportation system (e.g., tires, brakes,
axles, wheels, rims, coupling mechanisms). It should recommend that the
owner seek professional assistance whenever considering relocating the
home.
24 CFR 3283.108 Insurance.
The manufacturer should recommend that owners of manufactured homes
consider acquiring adequate and appropriate insurance. Manufacturers
should also advise consumers to contact an insurance company of their
choice to obtain information on the types of insurance coverage
available and should suggest factors to be considered.
24 CFR 3283.108 PART 3500 -- REAL ESTATE SETTLEMENT PROCEDURES ACT
Sec.
3500.1 Authority, scope and purpose.
3500.2 Definitions.
3500.3 No delegation of authority to HUD field offices.
3500.4 Reliance upon rule, regulation or interpretation by HUD.
3500.5 Coverage of RESPA.
3500.6 Special Information Booklet at time of loan application.
3500.7 Good Faith Estimates of settlement services.
3500.8 Use of Uniform Settlement Statement form.
3500.9 Printing and duplication of Uniform Settlement Statement form.
3500.10 One day advance inspection of Uniform Settlement Statement;
delivery.
3500.11 Mailing.
3500.12 No fee.
3500.13 Relation to State laws.
3500.14 Prohibitions against kickbacks and unearned fees.
3500.21 Mortgage servicing transfers.
Appendix A to Part 3500 -- Instructions for Completing Uniform
Settlement Statement (HUD-1)
Appendix B to Part 3500 -- Facts and Comments on Section 8 which
Provide Further Clarification of Regulations
Authority: Real Estate Settlement Procedures Act of 1974, Pub. L.
93-533 (12 U.S.C. 2601 et seq.), Real Estate Settlement Procedures Act
Amendments of 1975 (Pub. L. 94-205).
Source: 41 FR 22704, June 4, 1976, unless otherwise noted.
24 CFR 3500.1 Authority, scope and purpose.
This part, which may be referred to as Regulation X, comprises the
regulations issued by the Secretary of Housing and Urban Development
pursuant to the Real Estate Settlement Procedures Act of 1974 (Pub. L.
93-533), 12 U.S.C. 2601, et seq. , as amended by the Real Estate
Settlement Procedures Act Amendments of 1975 (Pub. L. 94-205) herein
RESPA.
24 CFR 3500.2 Definitions.
(a) Date of Settlement means the date on which the documents creating
the security interest in real property become effective as between the
borrower and the Lender, except that in the conversion of a construction
loan to a permanent security interest in real property to finance
purchase by a first user, Date of Settlement shall be the date on which
title is transferred as between seller and buyer not subject to
revocation by seller or buyer.
(b) Federally Related Mortgage Loan is defined in 3500.5.
(c) Lender means the secured creditor or creditors named as such in
the debt obligation and document creating the lien or other security
interest.
(d) Mortgaged Property means the real property covered by the
Federally Related Mortgage Loan, or the cooperative unit with respect to
which stock is pledged to secure the Federally Related Mortgage Loan.
(e) Person means any individual, corporation, partnership, trust,
association or other entity.
(f) RESPA means the Real Estate Settlement Procedures Act of 1974
(Pub. L. 93-533), U.S.C. 2601 et seq. , as amended by the Real Estate
Settlement Procedures Act Amendments of 1975 (Pub. L. 94-205).
(g) Secretary means the Secretary of Housing and Urban Development or
any official delegated the authority of the Secretary with respect to
RESPA.
(h) State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
24 CFR 3500.3 No delegation of authority to HUD field offices.
No authority granted to the Secretary under RESPA has been delegated
to HUD Regional Offices, HUD Area Offices or HUD Insuring Offices. Any
questions or suggestions from the public regarding RESPA should be
directed to the Office of Consumer Affairs and Regulatory Functions,
Attention: RESPA, Department of Housing and Urban Development, Room
4100, 451 7th Street, SW., Washington, DC 20410.
24 CFR 3500.4 Reliance upon rule, regulation or interpretation by HUD.
(a) Section 19(b) of RESPA provides: ''No provision of this Act or
the laws of any State imposing any liability shall apply to any act done
or omitted in good faith in conformity with any rule, regulation, or
interpretation thereof by the Secretary or the Attorney General,
notwithstanding that after such act or omission has occurred, such rule,
regulation, or interpretation is amended. rescinded, or determined by
judicial or other authority to be invalid for any reason.''
(b) For purposes of section 19(b) of RESPA only the following
constitute a ''rule, regulation, or interpretation thereof by the
Secretary'':
(1) The Uniform Settlement Statement, HUD-1, and HUD instructions set
forth in Appendix A; and
(2) All other provisions, Appendices and Amendments thereto contained
in this part, but not including any document referred to in this part
except to the extent such document is set forth in this part.
(c) A ''rule, regulation, or interpretation thereof by the
Secretary'' for purposes of section 19(b) of RESPA shall not include the
Special Information Booklet prescribed by the Secretary or any other
statement or issuance, whether oral or written, by an officer or
representative of HUD, letter or memorandum by the Secretary, General
Counsel, any Assistant Secretary or other officer or employee of HUD,
preamble to a regulation or other issuance of HUD, report to Congress,
pleading, affidavit or other document in litigation, pamphlet, handbook,
guide, telegraphic communication, explanation, instructions to forms,
speech or other material of any nature which is not specifically
included in paragraph (b) of this section.
24 CFR 3500.5 Coverage of RESPA.
(a) Applicability. RESPA and this part as applicable to all
Federally Related Mortgage Loans.
(b) Definition of Federally Related Mortgage Loan. Federally Related
Mortgage Loan means a loan which is not made to finance an exempt
transaction specified in paragraph (d), below, and which meets all of
the following four requirements:
(1) The proceeds of the loan are used in whole or in part to finance
the purchase by the borrower, or other transfer of legal title of the
Mortgaged Property. Execution of an instrument creating a security
interest is not considered to be a transfer of legal title for purposes
of this part;
(2) The loan is secured by a first lien or other first security
interest covering real estate, including a fee simple, life estate,
remainder interest, ground lease or other long-term leasehold estate:
(i) Upon which there is located a structure designed principally for
the occupancy of from 1 to 4 families; or
(ii) Upon which there is located a manufactured home; or
(iii) Upon which a structure designed principally for the occupancy
of from 1 to 4 families is to be constructed using proceeds of the loan;
or
(iv) Upon which there will be placed a manufactured home to be
purchased using proceeds of the loan; or
(v) Which is a condominium unit (or a first lien covering a
cooperative unit) designed principally for the occupancy of from 1 to 4
families;
(3) The Mortgaged Property is located in a State; and
(4) The loan: (i) Is made by a Lender meeting the requirements of
paragraph (c) of this section, or (ii) is made in whole or in part, or
insured, guaranteed, supplemented, or assisted in any way, by the
Secretary or other officer or agency of the Federal Government, or (iii)
is made in connection with a housing or urban development program
administered by the Secretary or other agency of the Federal Government,
or (iv) is intended to be sold by the originating lender to the Federal
National Mortgage Association (FNMA), the Government National Mortgage
Association (GNMA), or the Federal Home Loan Mortgage Corporation
(FHLMC), or to a financial institution which intends to sell the
mortgage to FHLMC.
(c) A Lender is within paragraph (b)(4)(i) if it is:
(1) A lending institution the deposits or accounts of which are
insured by the Federal Savings and Loan Corporation (FSLIC), the Federal
Deposit Insurance Corporation (FDIC) or any other agency of the Federal
Government.
(2) A lending institution which is regulated by the Federal Home Loan
Bank Board or any other agency of the Federal Government, or
(3) A creditor, as defined in section 103(f) of the Consumer Credit
Protection Act (15 U.S.C. 1602(f)), who makes or invests in residential
real estate loans aggregating more than $1,000,000 in either the
calendar year in which the Date of Settlement of the Federally Related
Mortgage Loan in question occurs or the calendar year prior thereto,
except that the term creditor does not include any agency or
instrumentality of any state. Section 103(f) of the Consumer Credit
Protection Act defines creditor as follows:
''. . . The term 'creditor' refers only to creditors who regularly
extend, or arrange for the extension of, credit which is payable by
agreement in more than four installments or for which the payment of a
finance charge is or may be required, whether in connection with loans,
sales of property or services, or otherwise.''
(d) Exempt transactions. This part shall not apply to:
(1) A loan to finance the purchase or transfer of a property of 25 or
more acres;
(2) A home improvement loan, loan to refinance, or other loan where
the proceeds are not used to finance the purchase or transfer of legal
title to the property;
(3) A loan to finance the purchase or transfer of a vacant lot, where
no proceeds of the loan are to be used for the construction of a 1 to 4
family residential structure or for the purchase of a manufactured home
to be placed on the lot;
(4) An assumption, novation, or sale or transfer subject to a
pre-existing loan, except that the use of or conversion of a
construction loan to a permanent mortgage loan to finance purchase by
the first user;
(5) A construction loan, except where the construction loan is used
as or converted to a permanent loan to finance purchase by the first
user;
(6) A permanent loan the proceeds of which will be used to finance
the construction of a 1 to 4 family structure, where the lot is already
owned by the borrower or borrowers;
(7) A loan to finance the purchase of a property where the primary
purpose of the purchase is for resale; or
(8) Execution of a land sales contract or installment land contract
where the legal title is not transferred to the purchaser upon
execution. However, a loan to finance the acquisition of title pursuant
to a land sales contract is a Federally Related Mortgage Loan.
(41 FR 22704, June 4, 1976, as amended at 50 FR 9269, Mar. 7, 1985)
24 CFR 3500.6 Special Information Booklet at time of loan application.
(a) Lender to provide information booklet. The Lender shall provide
a copy of the Special Information Booklet currently prescribed by the
Secretary, together with the Good Faith Estimates of closing costs
required under 3500.7, to every person from whom the Lender receives or
for whom it prepares a written application on an application form or
forms normally used by the Lender for a Federally Related Mortgage Loan.
Where more than one individual applies for a loan, the Lender is in
compliance with this requirement if the Lender supplies a copy of the
Special Information Booklet to one of the individuals applying. The
Lender shall supply the Special Booklet by delivering it or placing it
in the mail to the applicant on the day the application is received but
not later than three business days after the application is received.
The Lender shall supply the Good Faith Estimates by delivering or
placing them in the mail not later than three business days after the
application is received.
(b) Printing and duplication. The Secretary may from time to time
revise the Special Information Booklet. The Special Information Booklet
may be printed or reproduced in any form, provided that no change is
made, other than as provided under paragraph (c) of this section. The
Special Information Booklet may not be made a part of a larger document
for purposes of distribution under RESPA and this section. Any color,
size and quality of paper, type of print, and method of reproduction may
be used so long as the booklet is clearly legible and easily readable.
(c) Permissible changes. No changes to, deletions from or additions
to the foreword and text of the Special Information Booklet currently
prescribed by the Secretary shall be made other than those specified
below or any others approved in writing by the Secretary.
(1) The cover of the booklet may be in any form and may contain any
drawings, pictures, of artwork, provided that the words settlement costs
are used in the title. Names, addresses and telephone numbers of the
Lender or others and similar information may appear on the cover, but no
discussion of the matters covered in the booklet shall appear on the
cover.
(2) The Special Information Booklet may be translated into other
languages.
(41 FR 22705, June 4, 1976; 41 FR 23673, June 11, 1976, as amended
at 42 FR 19328, Apr. 13, 1977)
24 CFR 3500.7 Good Faith Estimates of settlement services.
(a) Lender to provide Good Faith Estimates with information booklet
at time of loan application. The Lender shall provide the Good Faith
Estimates required under this section to every person to whom it must
provide a copy of the Special Information Booklet under 3500.6 of this
part. Time of provision is set forth in 3500.6(a).
(b) Good Faith Estimate. The Lender shall provide a good faith
estimate, as a dollar amount or range, of each charge for a settlement
service which the borrower is likely to incur. Each such good faith
estimate must bear a reasonable relationship to the charge a borrower is
likely to be required to pay at settlement, and must be based upon
experience in the locality or area in which the Mortgaged Property is
located.
As to each charge with respect to which the Lender requires a
particular settlement service provider to be used, the Lender shall make
its good faith estimate based upon the Lender's knowledge of the amounts
charged by such provider.
(c) Settlement Services for which Good Faith Estimates are required.
The Lender is required to provide the loan applicant with a Good Faith
Estimate for each settlement charge which will be listed in Section L
(except item 903 and series 1000 of Section L) of the Uniform Settlement
Statement which the Lender anticipates that the borrower will pay at
settlement based upon the Lender's general experience as to which party
normally pays each charge in the locality.
(d) Form of Good Faith Estimates. The Lender may provide the loan
applicant with the required Good Faith Estimates on any form, including
Section L., of the Uniform Settlement Statement, which the Lender
determines to use, if the following requirements are met:
(1) The form must be clear and concise. It shall include the
Lender's name. The form shall set forth in bold type the following or a
substantially equivalent statement: ''This form does not cover all
items you will be required to pay in cash at settlement, for example,
deposit in escrow for real estate taxes and insurance. You may wish to
inquire as to the amounts of such other items. You may be required to
pay other additional amounts at settlement.''
(2) The terminology shall be identical, so far as practicable, to the
terms used in the Uniform Settlement Statement (HUD-1) or the terms
which will be inserted in blank spaces in the Uniform Settlement
Statement. Lenders are encouraged, but are not required, to set forth
the items numbers for each item which appears in the Uniform Settlement
Statement (HUD-1).
(3) Additional information relating to a stated item may be provided.
Charges which may be grouped together pursuant to the instructions of
the Uniform Settlement Statement may be grouped in this disclosure. For
example, the amount for several title charges (listed as lines 1101-1106
of the Uniform Settlement Statement) may, in some jurisdictions,
customarily be included in an attorney's fee (listed as line 1107).
(e) Description of Lender's requirements on selection of providers.
Where the Lender requires that a particular provider (or affiliated
group of providers, such as a law firm) be used to provide legal
services, title examination services or title insurance or to conduct
settlement and requires the borrower to pay all or a portion of the cost
of such services (regardless of the interests represented by the
provider), the Lender is required to include as part of the Good Faith
Estimate, a statement which clearly designates the corresponding
estimated charges, and states:
(1) The name, address and telephone number of each provider
designated by the Lender, the services which would be rendered by such
provider, and the fact that Lender's estimate is based upon the charges
of the designated provider; and
(2) A statement whether or not each such provider has a business
relationship with the Lender.
(f) As to each Federally Related Mortgage Loan which is exempt from
the use of the Uniform Settlement Statement by reason of 3500.8(d) of
this part, the lender shall keep an accurate record for two years of the
itemized list of the settlement services provided, the exact charge, if
any, which is to be imposed at settlement, and the paragraph (
3500.8(d)(1) or (2)) under which the exemption is granted. With respect
to a transaction which is exempt under 3500.8(d)(2), the lender shall
deliver or place in the mail to the borrower not later than three
business days after loan application a statement of the amount of the
fixed charge and a statement of the settlement services and other items
covered by such charge.
(41 FR 22705, June 4, 1976; 41 FR 23673, June 11, 1976)
24 CFR 3500.8 Use of Uniform Settlement Statement form.
(a) Use of HUD-1. As required by section 4 of RESPA, the Uniform
Settlement Statement (HUD-1, set forth in Appendix A) shall be used by
the person conducting settlement in every Federally Related Mortgage
Loan settlement transaction whether or not such person is the Lender.
Persons conducting settlements may exhaust supplies of the original
HUD-1 which are in stock at the time these regulations take effect.
(b) Charges to be stated. The Uniform Settlement Statement, HUD-1,
shall be completed to itemize all charges to be paid by the borrower and
the seller in connection with the settlement, except those charges not
imposed upon the borrower or seller by the Lender and which the borrower
or seller contract to pay for separately outside of the settlement.
Charges which are required by the Lender but paid outside of closing
shall be included on the statement but marked ''P.O.C.'', as provided in
the general instructions to the form. Lines and columns which relate to
the borrower's transaction may be deleted from the copy of the form
which will be furnished to the seller and lines and columns which relate
to the seller's transaction may be deleted from the copy of the form
which will be furnished to the borrower.
(c) Recordkeeping. The person conducting the settlement shall
provide the Lender with a copy of each settlement statement (both
borrower's and seller's copies, where different) required to be prepared
pursuant to section 4 of RESPA. The Lender shall retain the settlement
statement for two years after the date of settlement unless the Lender
disposes of its interest in the mortgage and does not service the
mortgage. The Lender may permit its copy of the settlement statement to
be delivered to the owner or servicer of the mortgage as a part of the
transfer of the loan file. If copy of the settlement statement is
required to be submitted to the Secretary or other Federal agency, a
legible reproduction of the copy retained by the Lender may be used to
meet this requirement.
(d) RESPA Transactions exempt from the use of the uniform Settlement
Statement. (1) Transactions in which the borrower is not required to
pay any settlement charges or adjustments.
(2) Transactions in which the borrower is required to pay a fixed
amount for all charges imposed at settlement and the borrower is
informed of the fixed amount at the time of loan application.
24 CFR 3500.9 Printing and duplication of Uniform Settlement Statement
form.
(a) Permissible changes. The Uniform Settlement Statement form,
HUD-1, may be reproduced with the following permissible changes and
insertions:
(1) The person reproducing the form may insert in Section A its
business name and/or logotype and may rearrange, but not delete, the
other information which appears in Section A.
(2) The name, address and other information regarding the Lender and
settlement agent (person conducting settlement), respectively, may be
printed in Sections F and H.
(3) Reproduction of HUD-1 must conform to the terminology, sequence
and numbering of line items as presented in lines 100-1400. However,
blank lines or items listed in lines 100-1400 which are not used locally
or in connection with mortgages by the Lender may be deleted, except for
the following: Lines 100, 120, 200, 220, 300, 301, 302, 303, 400, 420,
500, 520, 600, 601, 602, 603, 700, 800, 900, 1000, 1100, 1200, 1300, and
1400. The form may be correspondingly shortened. The number of a
deleted item shall not be used for a substitute or new item, but the
number of a blank space on HUD-1 may be used for a substitute or new
item.
(4) Charges not listed on HUD-1 but which are customary locally or
pursuant to the Lender's practice may be inserted in blank spaces; or
where existing blank spaces on HUD-1 are insufficient, additional lines
and spaces may be added and numbered in sequence with HUD-1 spaces.
(5) The following variations in layout and format are within the
discretion of persons reproducing HUD-1 and do not require prior HUD
approval: size of pages; tint or color of pages; size and style of
type or print; vertical spacing between lines or provision for
additional horizontal space on lines (for example, to provide sufficient
space for recording time periods used in prorations); printing of HUD-1
contents on separate pages, on the front and back of a single page, or
on one continuous page; use of multicopy tear-out sets; printing on
rolls for computer purposes; reorganization of Sections B through I
where necessary to accommodate computer printing; placement on the form
of the HUD number but not the OMB approval number, neither of which in
any case may be deleted from the form.
(6) The borrower's information and the seller's information may be
provided on separate pages.
(7) Signature lines may be added.
(8) The form may be translated into any other language.
(9) An additional page may be attached to HUD-1 for the purpose of
including customary recitals and information used locally in real estate
settlements, for example, breakdown of payoff figures; a breakdown of
mortgagor's total monthly mortgage payments; check disbursements; a
statement indicating receipt of funds; applicable special stipulations
between buyer and seller; and the date funds are transferred. If space
permits, such information may be added at the end of HUD-1.
(b) Any other deviation in the form is only permissible upon receipt
of written approval of the Secretary. A request to the Secretary for
approval may be submitted in writing to the Assistant Secretary for
Consumer Affairs and Regulatory Functions, Attention: RESPA, Room 4100,
451 7th Street, SW., Washington, DC 20410, stating the reasons why the
applicant believes such deviation is needed. Prior to receiving such
approval, the prescribed form must be used.
(41 FR 22706, June 4, 1976; 41 FR 23673, June 11, 1976)
24 CFR 3500.10 One day advance inspection of Uniform Settlement
Statement; delivery.
(a) Inspection one day prior to settlement. Except as provided in
paragraph (d), upon the request of the borrower, the person conducting
the settlement shall permit the borrower to inspect the Uniform
Settlement Statement, completed to set forth those items which are known
to such person at the time of inspection, during the business day
immediately preceding the Date of Settlement.
(b) Delivery. The Uniform Settlement Statement shall be delivered or
mailed to the borrower and the seller or their agents at or before
settlement, except as provided in paragraphs (c) and (d).
(c) Waiver. The borrower may waive the right to delivery of the
completed Uniform Settlement Statement no later than at settlement by
executing a written waiver at or before settlement. In such case, the
completed Uniform Settlement Statement shall be mailed or delivered to
the borrower and seller as soon as practicable after settlement.
(d) Exempt transactions. Where the borrower or the borrower's agent
does not attend the settlement or where the person conducting settlement
does not require a meeting of the parties for that purpose, the
transaction shall be exempt from the requirements of paragraphs (a) and
(b) of this section, except that the Uniform Settlement Statement shall
be delivered as soon as practicable after settlement.
24 CFR 3500.11 Mailing.
The provisions of this part requiring or permitting mailing of
settlement statements or other documents shall be deemed to be satisfied
by placing the document in the mail (whether or not received by the
addressee) addressed to the addresses stated in the loan application or
in other information submitted to or obtained by Lender at the time of
loan application, or submitted to or obtained by the Lender or person
conducting settlement, except that a revised address shall be used where
the Lender or such other person has been expressly informed in writing
of a change of address.
24 CFR 3500.12 No fee.
As provided in section 12 of RESPA, no fee shall be imposed or charge
made upon any other person, as a part of settlement costs or otherwise,
by a Lender in connection with or on account of the preparation and
distribution of the statement required by section 4 of RESPA (Uniform
Settlement Statement) or by the Truth in Lending Act.
24 CFR 3500.13 Relation to State laws.
Section 18 of RESPA provides:
This Act does not annul, alter, or affect or exempt any person
subject to the provisions of this Act from complying with the laws of
any State with respect to settlement practices, except to the extent
that those laws are inconsistent with any provision of this Act, and
then only to the extent of the inconsistency. The Secretary is
authorized to determine whether such inconsistencies exist. The
Secretary may not determine that any State law is inconsistent with any
provision of this Act if the Secretary determines that such law gives
greater protection to the consumer. In making these determination the
Secretary shall consult with the appropriate Federal agencies.
A determination by the Secretary that such an inconsistency exists
shall be made, after consultation with appropriate Federal agencies, by
publication of a notice in the Federal Register.
24 CFR 3500.14 Prohibition against kickbacks and unearned fees.
(a) Statutory prohibitions. Section 8 of RESPA provides:
(a) No person shall give and no person shall accept any fee,
kickback, or thing of value pursuant to any agreement or understanding,
oral or otherwise, that business incident to or a part of a real estate
settlement service involving a federally related mortgage loan shall be
referred to any person.
(b) No person shall give and no person shall accept any portion,
split, or percentage of any charge made or received for the rendering of
a real estate settlement service in connection with a transaction
involving a federally related mortgage loan other than for services
actually performed.
(c) Nothing in this section shall be construed as prohibiting (1) the
payment of a fee (A) to attorneys at law for services actually rendered
or (B) by a title company to its duly appointed agent for services
actually performed in the issuance of a policy of title insurance or (C)
by a lender to its duly appointed agent for services actually performed
in the making of a loan, (2) the payment to any person of a bona fide
salary or compensation or other payment for goods or facilities actually
furnished or for services actually performed, or (3) payments pursuant
to cooperative brokerage and referral arrangements or agreements between
real estate agents and brokers, or (4) such other payments or classes of
payments or other transfers as are specified in regulations prescribed
by the Secretary, after consultation with the Attorney General, the
Administrator of Veterans' Affairs, the Federal Home Loan Bank Board,
the Federal Deposit Insurance Corporation, the Board of Governors of the
Federal Reserve System, and the Secretary of Agriculture.
(d)(1) Any person or persons who violate the provisions of this
section shall be fined not more than $10,000 or imprisoned for not more
than one year, or both.
(2) In addition to the penalties provided by paragraph (1) of this
subsection, any person or persons who violate the provisions of
subsection (a) shall be jointly and severally liable to the person or
persons whose business has been referred in an amount equal to three
times the value or amount of the fee or thing of value, and any person
or persons who violate the provisions of subsection (b) shall be jointly
and severally liable to the person or persons charged for the settlement
services involved in an amount equal to three times the amount of the
portion, split, or percentage. In any successful action to enforce the
liability under this paragraph, the court may award the court costs of
the action together with a reasonable attorney's fee as determined by
the court.
(b) Thing of value. Thing of value is broadly defined by section
3(2) of RESPA to include any payment, advance, fund, loan, service, or
other consideration. Under section 8 of RESPA, a thing of value may be
provided either directly or indirectly to the person referring
settlement business and can take many forms including, but not limited
to, monies, things, discounts, salaries, commissions, fees, duplicate
payments of a charge, stock, dividends, distributions of partnership
profits, credits representing monies that may be paid at a future date,
special bank deposits or accounts, banking terms, special loan or loan
guarantee terms, services of all types at special or free rates, and
sales or rentals at special prices or rates.
(c) Agreement or understanding. An agreement or understanding for
the referral of settlement business need not be verbalized but may be
established by a practice, pattern or course of conduct pursuant to
which the payor and recipient of the thing of value understand that the
payment is in return for the referral of business. A payment that is
made repeatedly and is connected in any way with the volume or value of
the business referred to the payor by the recipient is presumptively
pursuant to an agreement or understanding.
(d) Payment of thing of value for referral of business. Any person
who gives and any person who receives any fee, kickback or thing of
value that represents compensation for the referral of business incident
to or a part of a real estate settlement service is in violation of
section 8 of RESPA. The fact that the payment of the thing of value
does not result in an increase in the charge made for the settlement
service by the payor in the particular transaction is irrelevant in
determining whether the payment is prohibited.
(e) Payment for goods or services actually rendered. The payment and
receipt of a thing of value that bears a reasonable relationship to the
value of the goods or services received by the person or company making
the payment is not prohibited by RESPA section 8. To the extent the
thing of value is in excess of the reasonable value of the goods
provided or services performed, the excess is not for services actually
rendered and may be considered a kickback or referral fee proscribed by
RESPA section 8. The value of the referral itself (i.e., the additional
business obtained thereby) is not to be taken into account in
determining whether the payment is reasonable.
(f) Exemptions. The following are not proscribed by RESPA section 8:
(1) The payment of a fee (i) to attorneys at law for services
actually rendered, or (ii) by a title company to its duly appointed
agent for services actually performed in the issuance of a policy of
title insurance, or (iii) by a Lender to its duly appointed agent for
services actually performed in the making of a loan.
(2) The payment to any person of a bona fide salary, compensation or
other payment for goods or facilities actually furnished or for services
actually performed.
(3) Payments pursuant to cooperative brokerage and referral
arrangements or agreements between real estate agents and brokers.
(4) Normal promotional and educational activities not directly
conditioned on the referral of business and that do not involve the
defraying of expenses that otherwise would be incurred by persons in a
position to refer settlement business, such as a reception by a title
company, free seminars on title matters to professionals, furnishing
property descriptions and names of record owners without charge to
persons such as Lenders, real estate brokers or attorneys or
distribution of calendars and other promotional material of nominal
value.
(5) The waiver by a Lender of the requirement that a borrower pay a
prepayment penalty provided in mortgage documents, whether or not such
waiver is conditioned upon receipt by the Lender of a loan application
from, or the making of a loan to, such borrower or a person purchasing a
property from such borrower. This exemption is established pursuant to
authority to establish exemptions from Section 8 of RESPA; and is not
applicable by analogy to any category of cases other than waiver of
prepayment penalties.
(g) Examples of violations under section 8. The following are
examples of violations under section 8 and are applicable by analogy to
other providers of settlement services in addition to those specified in
the examples:
(1) A title company pays a portion of the title insurance premium to
a person who performs no services for the title company other than
placing an application with the title company.
(2) A title company gives a discount or allowance for the prompt
payment of a title insurance premium or other charge for a settlement
service to a real estate agent, attorney or lender as a rebate for the
placement of business with such title company.
(3) An attorney gives a portion of his fees to another attorney, a
Lender or a real estate agent who only referred a prospective client to
the attorney.
(4) A title company pays a ''commission'' to a corporation that is
wholly owned by one or more Lenders, even though such corporation
performs no substantial services on behalf of the title company.
24 CFR 3500.21 Mortgage servicing transfers.
(a) Definitions. As used in this section:
(1) Business day means any day, excluding legal public holidays
(State or Federal), Saturday and Sunday. In any provision of 3500.21,
if a day is not specified as a Business Day it is a calendar day.
(2) Effective date of transfer means the date on which the mortgage
payment of a borrower is first due to the transferee servicer (new
servicer) of a mortgage loan pursuant to the assignment, sale or
transfer of the servicing of the mortgage loan.
(3) Federally-related mortgage loan has the meaning set forth in
3500.5(b) of Regulation X (24 CFR part 3500) subject to the exemptions
of 3500.5(d). However, for purposes of this 3500.21, pursuant to
secton 19(a) of RESPA, the Secretary has withdrawn a limited exemption
and all refinancings of mortgage loans by lenders which meet all of the
other requirements of section 3(1) of RESPA are covered for all purposes
of this 3500.21.
(4) Servicer means the person responsible for the servicing of a
loan. This term does not include the following:
(i) The Federal Deposit Insurance Corporation (FDIC) or the
Resolution Trust Corporation (RTC), in connection with assets acquired,
assigned, sold, or transferred pursuant to section 13(c) of the Federal
Deposit Insurance Act or as receiver or conservator of an insured
depository institution; or
(ii) The Government National Mortgage Association (GNMA), the Federal
National Mortgage Corporation (FNMA), the Federal Home Loan Mortgage
Corporation (Freddie Mac), the RTC or the FDIC, in cases when the
assignmemt, sale or transfer of the servicing of the mortgage loan is
preceded by termination of the contract for servicing the loan for
cause, commencement of proceedings for bankruptcy of the servicer, or
commencement of proceedings by the FDIC or RTC for conservatorship or
receivership of the servicer (or an entity by which the servicer is
owned or controlled).
(5) Servicing means receiving any scheduled periodic payments from a
borrower pursuant to the terms of any loan, including amounts for escrow
accounts under section 10 of RESPA, and making the payments of principal
and interest, and such other payments with respect to the amounts
received from the borrower as may be required pursuant to the terms of
the loan.
(b) Disclosure at the time of loan application. Every person who
receives an application for a federally-related mortgage loan (as
defined in paragraph (a)(3) of this section) shall disclose to each
person who applies for a loan, at the time of application for the loan:
(1) Whether the servicing of the loan may be assigned, sold or
transferred to any other person at any time while the loan is
outstanding. If the person who makes the loan does not engage in the
servicing of any federally-related mortgage loans, the disclosure may
consist of a statement that the person making the loan currently intends
to assign, sell or transfer servicing of the loan to another person.
The following represents a model format for complying with the
requirements of this paragraph (b)(1). The person making the loan may
use the language which best describes the circumstances:
The following is the best estimate of what will happen to the
servicing of your mortgage loan:
We may assign, sell or transfer the servicing of your loan while the
loan is outstanding. (We are able to service your loan (.) (,) and we
(will) (will not) (haven't decided whether to) service your loan.)
(or)
We do not service mortgage loans, and we presently intend to assign,
sell or transfer the servicing of your mortgage loan. You will be
informed about your servicer.
(2) The percentages (rounded to the nearest quartile (25%)) of loans
made by the person making the loan for which servicing has been
assigned, sold or transferred as of the end of the most recent calendar
year completed, subject to the following limitations. For applications
received in calendar year 1991, this percentage shall include mortgage
loans assigned, sold or transferred in calendar year 1990. For
applications received in calendar year 1992, these percentages will
include calendar years 1990 and 1991, and for applications received in
1993, and thereafter, these percentages will include the most recent
three calendar years. This information should be calculated and
included in the disclosure within a reasonable time after the end of the
calendar year, but in any event no later than 31 days after the end of
the calendar year. If the percentages of transfers are less than 12.5%,
the word ''nominal'' or the actual percentage amount of servicing
transfers may be used. Each percentage should be obtained by dividing
the federally related mortgage loans for which servicing is transferred
within the calendar year by the total federally-related mortgage loans
originated in the calendar year. These percentages need not include the
assignment, sale or transfer by the lender of mortgage loan servicing by
the person making the loans to an affiliate or subsidiary of that
person. However, this information may be provided voluntarily. The
person making the loan should indicate if these percentages include
assignments, sales or transfers to affiliates or subsidiaries.
(3) The best available estimate of the percentage (between 0 and 25
percent, between 26 and 50 percent, between 51 and 75 percent, and
between 76 and 100 percent) of all loans made by the person making the
loan for which the servicing may be assigned, sold or transferred during
the 12-month period beginning on the date of origination. Each
percentage should be obtained by dividing the federally related mortgage
loans for which servicing may be transferred within the calendar year by
the total federally-related mortgage loans expected to be originated in
the calendar year. These percentages need not include the estimated
assignment, sale or transfer of mortgage loan servicing by the person
making the loan to an affiliate or subsidiary of that person. However,
this information may be provided voluntarily. The person making the
loan should indicate if the percentages include assignments, sales or
transfers to affiliates or subsidiaries.
(4) A summary of the information set out in paragraph (e) of this
section.
(5) A summary of the information set out in paragraph (f) of this
section.
(6) A written acknowledgement that the applicant (and the
co-applicant, if any) has read and understood the disclosure, evidenced
by the signature of the applicant (and co-applicant, if any).
(c) Model Disclosure Statement. The Model Disclosure Statement
referred to in section 6(a)(2) appears as Appendix A to this section.
It is not mandatory that lenders use the specific language of this Model
Disclosure Statement, but lenders must include all the required
information set out in section 6 of RESPA in their Disclosure Statement.
The use of the Applicant's Acknowledgement portion of the Disclosure
Statement in the format stated is mandatory. The information set forth
in Instructions to Preparer on the Model Disclosure Statement need not
be included on the form given to applicants and square bracketed ( )
material is optional or alternative language.
(d) Disclosure Statement and Applicant Acknowledgement; Delivery.
If a face-to-face interview with all applicants is held at the time of
application, the Disclosure Statement is to be delivered at that time.
Under any other circumstance, delivery is effectuated by placing the
document in the mail, with prepaid first-class postage, within three
Business Days from receipt of the application. If co-applicants
indicate the same address on their application, one copy delivered to
the address shown is sufficient. If different addresses are shown on
the application, a copy must be delivered to each of the applicants. A
Disclosure Statement signed by each applicant is a required part of any
application package and must be received by the mortgage lender before
the loan is closed. A federally-related mortgage loan should not be
funded unless the necessary signed Disclosure Statement is in the loan
package. For applications which are not funded, a lender will be deemed
to have complied with these Disclosure Statement requirements if, after
delivery of the Disclosure Statement, it has made reasonable follow-up
efforts to obtain signed acknowledgements, including correspondence or
communications regarding return of the acknowlegements which inform the
applicants that the loan cannot be funded unless the acknowledgements
are returned.
(e) Notice by transferor (present servicer) and transferee (new
servicer) of transfer of loan servicing at time of transfer. Each
servicer of any federally-related mortgage loan shall notify the
borrower in writing of any assignment, sale or transfer of the servicing
of the loan.
(1) Time of notice. (i) The notice required under this section shall
be made by the transferor (present servicer) to the borrower not less
than 15 days before the effective date of the transfer of the servicing
of the mortgage loan. The notice shall be made by the transferee (new
servicer) to the borrower not more than 15 days after the effective date
of the transfer. Both notices may be combined in one notice if the
15-day period delivery provision of this section is met and all
information required is disclosed.
(ii) The notice required under paragraph (e) of this section shall be
made to the borrower by the transferor (present servicer) or the
transferee (new servicer) to the borrower not more than 30 days after
the effective date of the transfer of the servicing of the mortgage
loan, in any case in which the transfer is preceded by termination of
the contract for servicing the loan for cause; commencement of
proceedings for bankruptcy of the servicer; or commencement of
proceedings by the Federal Deposit Insurance Corporation (FDIC) or the
Resolution Trust Corporation (RTC) for conservatorship or receivership
of the servicer (or an entity by which the servicer is owned or
controlled).
(iii) The notice required under paragraph (e) of this section can be
made at settlement by the transferor (present servicer) and transferee
(new servicer), or in a single notice on behalf of both parties at
settlement, and this notice will satisfy the timing requirements of this
paragraph (e).
(2) Contents of notice. The notice required under this paragraph (e)
of this section shall include the following information:
(i) The effective date of the transfer of servicing.
(ii) The name, address, and toll-free or collect call telephone
number of the transferee servicer (new servicer).
(iii) A toll-free or collect call telephone number for an individual
employed by the transferor servicer (present servicer) or the department
of the transferor servicer that can be contacted by the borrower to
answer servicing transfer inquiries.
(iv) A toll-free or collect call telephone number for an individual
employed by the transferee servicer (new servicer) or the department of
the transferee servicer that can be contacted by the borrower to answer
servicing transfer inquiries.
(v) The date on which the transferor servicer (present servicer) who
is servicing the loan before the transfer will cease to accept payments
relating to the loan and the date on which the transferee servicer (new
servicer) will begin to accept such payments. These dates shall be the
same or in the alternative, consecutive days.
(vi) Any information concerning the effect the transfer may have, if
any, on the terms or the continued availability of mortgage life or
disability insurance or any other type of optional insurance and what
action, if any, the borrower must take to maintain coverage.
(vii) A statement that the transfer of servicing does not affect any
term or condition of the security instruments other than terms directly
related to the servicing of the loan.
(3) Sample language that may be used to comply with the requirements
of this section is set forth in appendix B to this section. (Use of
this language is not mandatory, but notices must contain all the
statutorily and regulatorily required information).
(4) During the 60-day period beginning on the effective date of
transfer of the servicing of a federally-related mortgage loan, a late
fee may not be imposed on the borrower with respect to any payment on
the loan, and no payment may be treated as late, if the payment is
received by the transferor servicer (present servicer) rather than by
the transferee servicer (new servicer) who should receive the payment,
before the due date applicable to such payment.
(f) Duty of loan servicer to respond to borrower inquiries -- (1)
Notice of receipt of inquiry. If a servicer of a federally-related
mortage loan, as defined in 3500.21(a)(3), receives a qualified written
request from the borrower for information relating to the servicing of
the loan, the servicer shall provide a written response acknowledging
receipt of the correspondence within 20 Business Days, unless the action
requested is taken within that period, and the borrower is notified in
accordance with the provision of paragraph (f)(3) of this section. For
purpose of this paragraph (f), the term ''borrower'' includes an agent
of the borrower.
(2) Qualified written request. A qualified written request means a
written correspondence (other than notice on a payment coupon or other
payment medium supplied by the servicer) that includes, or otherwise
enables the servicer to identify, the name and account of the borrower,
and a statement of the reasons for the belief of the borrower, to the
extent applicable, that the account is in error, or that provides
sufficient detail to the servicer regarding other information sought by
the borrower.
(3) Action with respect to the inquiry. Not later than 60 Business
Days after the receipt from the borrower of a qualified written request
and, if applicable, before taking any action with respect to the
inquiry, the servicer shall:
(i) Make appropriate corrections in the account of the borrower,
including the crediting of any late charges or penalties, and transmit
to the borrower a written notification of the correction (including the
name and telephone number of a representative of the servicer who can
provide assistance to the borrower); or
(ii) After conducting an investigation, provide the borrower with a
written explanation or clarification that includes:
(A) To the extent applicable, a statement of the reasons of the
servicer that the account is correct, and the name and telephone number
of an individual employed by, or the office or department of, the
servicer who can provide assistance to the borrower; or
(B) Information requested by the borrower or an explanation why the
information requested is unavailable or cannot be obtained by the
servicer and the name and telephone number of an individual employed by,
or the office or department of, the servicer who can provide assistance
to the borrower.
(4) Protection of credit rating. (i) During the 60-Business Day
period beginning on the date of the servicer's receipt from a borrower
of a qualified written request relating to a dispute regarding the
borrower's payments, a servicer may not provide information regarding
any overdue payment, owed by the borrower and relating to this period or
the qualified written request, to any consumer reporting agency (as that
term is defined in section 603 of the Fair Credit Reporting Act).
(ii) Borrowers should be aware that section 17 of RESPA provides that
RESPA does not affect the validity or enforceability of any loan, loan
agreement, mortgage, or lien made or arising in connection with a
federally-related mortgage loan, and therefore the protection of credit
rating provision of paragraph (f)(4)(i) of this section does not impede
a lender or servicer from taking other legal action under the loan and
mortgage documents.
(g) Damages and costs. Whoever fails to comply with any provision of
this section shall be liable to the borrower in the following amounts:
(1) Individuals. In the case of any action by an individual, an
amount equal to the sum of any actual damages to the borrower as the
result of the failure, and any additional damages in the case of a
pattern or practice of noncompliance with the requirements of this
section, in an amount not to exceed $1,000.
(2) Class Actions. In the case of a class action, an amount equal to
the sum of any actual damages to each of the borrowers in the class as
the result of the failure and any additional damages in the case of a
pattern or practice of noncompliance with the requirements of this
section, in an amount not greater than $1,000 for each member of the
class, except that the total damages in any class action may not exceed
the lesser of $500,000 or one percent of the servicer's net worth.
(3) Costs. In addition to the amounts under paragraphs (g)(1) and
(2) of this section, in the case of any successful action under this
section, the costs of the action, together with any attorneys' fees
incurred in connection with the action as a court may determine to be
reasonable under the circumstances.
(4) Non-liability. A transferor (present servicer) or transferee
(new servicer) shall not be liable for any failure to comply with the
requirements of this section if, within 60 days after discovering an
error (whether pursuant to a final written examination report or a
servicer's own procedures) and before commencement of an action under
this section and the receipt of written notice from the borrower, the
servicer notifies the person concerned of the error and makes whatever
adjustments are necessary in the appropriate account to ensure that the
person will not be required to pay an amount in excess of any amount
that the person otherwise would have paid.
(h) Preemption of conflicting State laws. A person who makes a
federally-related mortgage loan or a servicer shall be considered to
have complied with the provisions of any State law or regulation
requiring notice to a borrower at the time of application for a loan or
transfer of the servicing of a loan if the person or servicer complies
with the requirements of this section.
Notice to Mortgage Loan Applicants: The Right to Collect Your
Mortgage Loan Payments may be Transferred. Federal Law Gives you
Certain Related Rights. Read This Statement and Sign it Only if you
Understand its Contents.
Because you are applying for a mortgage loan covered by the Real
Estate Settlement Procedures Act (RESPA) (12 U.S.C. 2601 et seq.) you
have certain rights under that Federal law. This statement tells you
about those rights. It also tells you what the chances are that the
servicing for this loan may be transferred to a different loan servicer.
''Servicing'' refers to collecting your principal, interest and escrow
account payments, if any. If your loan servicer changes, there are
certain procedures that must be followed. This statement generally
explains those procedures.
If the servicing of your loan is assigned, sold, or transferred to a
new servicer, you must be given written notice of that transfer. The
present loan servicer must send you notice in writing of the assignment,
sale or transfer of the servicing not less than 15 days before the
effective date of the transfer. The new loan servicer must also send
you notice within 15 days after the effective date of the transfer. The
present servicer and the new servicer may combine this information in
one notice, so long as the notice is sent to you 15 days before the
effective date of transfer. The 15 day period is not applicable if a
notice of prospective transfer is provided to you at settlement. The
law allows a delay in the time (not more than 30 days after a transfer)
for servicers to notify you under certain limited circumstances, when
your servicer is changed abruptly. This exception applies only if your
servicer is fired for cause, is in bankruptcy proceedings, or is
involved in a conservatorship or receivership initiated by a Federal
agency.
Notices must contain certain information. They must contain the
effective date of the transfer of the servicing of your loan to the new
servicer, the name, address, and toll-free or collect call telephone
number of the new servicer, and toll-free or collect call telephone
numbers of a person or department for both your present servicer and
your new servicer to answer your questions about the transfer of
servicing. During the 60-day period following the effective date of the
transfer of the loan servicing, a loan payment received by your old
servicer before its due date may not be treated by the new loan servicer
as late, and a late fee may not be imposed on you.
Section 6 of RESPA (12 U.S.C. 2605) gives you certain consumer
rights, whether or not your loan servicing is transferred. If you send
a ''qualified written request'' to your loan servicer concerning the
servicing of your loan, your servicer must provide you with a written
acknowledgment within 20 Business Days of receipt of your request. A
''qualified written request'' is a written correspondence, other than
notice on payment coupon or other payment medium supplied by the
servicer, which includes your name and account number, and your reasons
for the request. Not later than 60 Business Days after receiving your
request, your servicer must make any appropriate corrections to your
account, or must provide you with a written clarification regarding any
dispute. During this 60-Business Day period, your servicer may not
provide information to a consumer reporting agency concerning any
overdue payment related to such period or qualified written request.
A Business Day is any day, excluding public holidays (State or
Federal), Saturday and Sunday.
Section 6 of RESPA also provides for damages and costs for
individuals or classes of individuals in circumstances where servicers
are shown to have violated the requirements of that Section.
1. The following is the best estimate of what will happen to the
servicing of your mortgage loan:
We may assign, sell or transfer the servicing of your loan sometime
while the loan is outstanding. (We are able to service your loan (.)
(,) and we (will) (will not) (haven't decided whether to) service your
loan.)
(or)
We do not service mortgage loans, and we presently intend to assign,
sell or transfer the servicing of your mortgage loan. You will be
informed about your servicer.
2. For all the mortgage loans that we make in the 12 month period
after your mortgage loan is funded, we estimate that the percentage of
mortgage loans for which we will transfer servicing is between:
XXX 0 to 25%
XXX 26 to 50%
XXX 51 to 75%
XXX 76 to 100%
(This estimate (does) (does not) include assignments, sales or
transfers to affiliates or subsidiaries.) This is only our best estimate
and it is not binding. Business conditions or other circumstances may
affect our future transferring decisions.
3. This is our record of transferring the servicing of the mortgage
loans we have made in the past:
(This information (does) (does not) include assignments, sales or
transfers to affiliates or subsidiaries.)
Lender (Signature Not Mandatory)
Date
Instructions to Preparer: For item 3, for applications received in
calendar year 1991, the information will be for calendar year 1990 only;
for applications received in 1992, this information will be for
calendar years 1990 and 1991; and for applications received in 1993 and
thereafter, this information will be for the previous three calendar
years. If the percentage of servicing transferred is less than 12.5%,
the word ''nominal'' or the actual percentage amount of servicing
transfers may be used.
I/we have read this disclosure form, and understand its contents, as
evidenced by my/our signature(s) below.
Applicant's Signature
Co-Applicant's Signature
Date
You are hereby notified* that the servicing of your mortgage loan,
that is, the right to collect payments from you, is being assigned, sold
or transferred from XXXXX to XXXXX, effective XXXXX.
The assignment, sale or transfer of the servicing of the mortgage
loan does not affect any term or condition of the mortgage instruments,
other than terms directly related to the servicing of your loan.
Except in limited circumstances, the law requires that your present
servicer send you this notice at least 15 days before the effective date
of transfer, or at closing. Your new servicer must also send you this
notice no later than 15 days after this effective date or at closing.
(In this case, all necessary information is combined in this one
notice).
Your present servicer is XXXXX. If you have any questions relating
to the transfer of servicing from your present servicer call XXXXX
(enter the name of an individual or department here) between XXX a.m.
and XXX p.m. on the following days XXXXX. This is a (toll-free) or
(collect call) number.
Instructions to Preparer: Delivery means placing the notice in the
mail, first class postage prepaid, prior to 15 days before the effective
date of transfer (transferor) or prior to 15 days after the effective
date of transfer (transferee). However, this notice may be sent not
more than 30 days after the effective date of the transfer of servicing
rights if assignment, sale or transfer of the servicing of the mortgage
loan is preceded by termination of the contract for servicing the loan
for cause, commencement of proceedings for bankruptcy of the servicer,
or commencement of proceedings by the Federal Deposit Insurance
Corporation (FDIC) or the Resolution Trust Corporation (RTC) for
conservatorship or receivership of the servicer, or an entity by which
the servicer is owned or controlled.
''Lender'' may be substituted for ''present servicer'' where
appropriate.
Your new servicer will be XXXXX. The business address for your new
servicer is: XXXXX. The (toll-free) (collect call) telephone number of
your new servicer is XXXXX. If you have any questions relating to the
transfer of servicing to your new servicer call XXXXX (enter the name of
an individual or department here) at XXXXX (toll free or collect call
telephone number) between XXX a.m. and XXX p.m. on the following days
XXXXX.
The date that your present servicer will stop accepting payments from
you is XXXXX. The date that your new servicer will start accepting
payments from you is XXXXX.
(Use this paragraph if appropriate; otherwise omit) The transfer of
servicing rights may affect the terms of or the continued availability
of mortgage life or disability insurance or any other type of optional
insurance in the following manner
and you should take the following action to maintain coverage:
XXXXX.
You should also be aware of the following information, which is set
out in more detail in Section 6 of RESPA (12 U.S.C. 2605):
During the 60-day period following the effective date of the transfer
of the loan servicing, a loan payment received by your old servicer
before its due date may not be treated by the new loan servicer as late,
and a late fee may not be imposed on you.
Section 6 of RESPA (12 U.S.C. 2605) gives you certain consumer
rights. If you send a ''qualified written request'' to your loan
servicer concerning the servicing of your loan, your servicer must
provide you with a written acknowledgement within 20 Business Days of
receipt of your request. A ''qualified written request'' is a written
correspondence, other than notice on a payment coupon or other payment
medium supplied by the servicer, which includes your name and account
number, and your reasons for the request. Not later than 60 Business
Day after receiving your request, your servicer must make any
appropriate corrections to your account, and must provide you with a
written clarification regarding any dispute. During the 60-Business Day
period, your servicer may not provide information to a consumer
reporting agency concerning any overdue payment related to such period
or qualified written request.
A Business Day is any day, excluding legal public holidays (State or
Federal), Saturday and Sunday.
Section 6 of RESPA also provides for damages and costs for
individuals or classes of individuals in circumstances where servicers
are shown to have violated the requirements of that Section. You should
seek legal advice if you believe your rights have been violated.
(Approved by the Office of Management and Budget under Control No.
2502-0458)
(56 FR 19508, Apr. 26, 1991; 56 FR 22910, May 17, 1991)
*This notification is a requirement of section 6 of the Real Estate
Settlement Procedures Act (RESPA) (12 U.S.C. 2605).
24 CFR 3500.21 Appendix A to Part 3500 -- Instructions for Completing Uniform Settlement Statement (HUD-1)
24 CFR 3500.21 Pt. 3500, App. A
The following are instructions for completing sections A through L of
the Uniform Settlement Statement, HUD-1, required under section 4 of
RESPA and called Regulation X. This form is to be used as a uniform
statement of actual costs and adjustments to be given to the parties in
connection with the settlement. The instructions for completion of the
form are primarily for the benefit of the persons who prepare the
statements and need not be transmitted to the parties as an integral
part of the form. Refer to Regulation X of the Department of Housing
and Urban Development (24 CFR part 3500) to determine if the Uniform
Settlement Statement is legally required to be used in a particular
mortgage loan transaction. There is no objection of the use of the form
in transactions in which its use is not legally required.
Information and amounts may be filled in by typewriter, hand
printing, computer printing, or any other method producing clear and
legible results. Copies of the form sent to the borrower and the seller
may be carbon copies or other clear legible copies. Refer to Regulation
X regarding rules applicable to printing of the form. An additional
page may be attached to HUD-1 for the purpose of including customary
recitals and information used locally in real estate settlements, for
example, a breakdown of payoff figures; a breakdown of mortgagor's
total monthly mortgage payments; check disbursements; a statement
indicating receipt of funds; applicable special stipulations between
buyer and seller; and the date funds are transferred. The reverse side
of the form may be used instead of an additional sheet.
Where charges are paid outside of the settlement (normally by
separate check), but are included in the requirements of 3500.8(b),
they shall be stated with the notation ''P.O.C.'' (Paid outside closing)
and shall not be included in computing totals. In accordance with
3500.8(b), charges not imposed upon the borrower or seller by the Lender
and which borrower or seller contract to pay for separately outside of
the settlement, need not be entered on HUD-1.
Instructions for completing the individual items on the form follow.
Where no instructions are given, the item is thought to be
self-explanatory.
Section A. The Lender, title company, other firm, or other person
conducting settlement and preparing the form may insert its name and/or
logotype in Section A.
Section B. Check appropriate loan type and complete the remaining
items as applicable.
Sections D and E. Fill in the names and current mailing addresses
and zip codes of the borrower and the seller. Where there is more than
one buyer or seller, the name and address of one is sufficient.
Section G. The street address of the secured property, should be
given. If there is not street address, a brief legal description or
other location of the property should be inserted. In all cases give
the zip code of the property.
Section H. Fill in name, address, and zip code of settlement agent;
address and zip code of ''place of settlement.''
Section J. Summary of Borrower's Transaction. The borrower may be
given a copy of the form which does not contain the information filled
in under ''Summary of Seller's Transaction'' (Section K, Series 400,
500, and 600 items).
Lines 104 and 105 are for additional amounts owed by the buyer. For
example, the balance in the seller's reserve account held by the Lender,
if assigned to the buyer in a loan assumption case, will be entered
here. These lines will also be used when a tenant in the property being
sold has not yet paid his rent, which the buyer will collect, for a
period of time prior to the settlement. The seller will be credited on
lines 404-405.
Lines 106 through 112 are for items which the seller had paid in
advance, and for which the buyer must therefore reimburse the seller.
Examples of items for which adjustments will be made may include taxes
and assessments paid in advance for an entire year or other period, when
settlement occurs prior to the expiration of the year or other period
for which they were paid. Additional examples include flood and hazard
insurance premiums, if the buyer is being substituted as an insured
under the same policy; mortgage insurance in loan assumption cases;
planned unit development or condominium association assessments paid in
advance; fuel or other supplies on hand, purchased by the seller, which
the buyer will use when buyer takes possession of the property; and
ground rent paid in advance.
Line 203 is used for cases in which the buyer is assuming or taking
title subject to an existing loan or lien on the property.
Lines 204-209 may be used in cases in which the seller has taken a
trade-in or other property from the buyer in part payment for the
property being sold. They may also be used in cases in which a seller
(typically a builder) is making an ''allowance'' to the buyer for
carpets or drapes which the buyer is to purchase on his own. Such an
allowance should also be entered on lines 506 to 509.
Lines 210 through 219 are for items which have not yet been paid, and
which the buyer is expected to pay, but which are attributable in part
to a period of time prior to the settlement. In jurisdictions in which
taxes are paid late in the tax year, most cases will show the proration
of taxes in these lines. Other examples include utilities used but not
paid for by the seller, rent collected in advance by the seller from a
tenant for a period extending beyond the settlement date, and interest
on loan assumptions.
Line 303 may indicate either the cash required from the borrower at
settlement (the usual case in a purchase transaction) or cash payable to
the borrower at settlement (if, for example, the buyer's earnest money
deposit exceeded his cash obligations in the transaction). The
appropriate box should be checked.
Section K. Summary of Seller's Transaction. The seller may be given
a copy of the form which does not contain the information filled in
under ''Summary of Borrower's Transaction'' (Section J, Series 100, 200,
and 300 items).
Instructions for the use of lines 106-112, above, apply also to lines
406 to 412.
Line 501. If the seller's real estate broker has received and holds
an earnest money deposit which exceeds the commission owed to him, and
if he will tender the excess deposit directly to the seller, rather than
through the settlement agent, the amount of excess deposit should be
entered on line 501.
Line 503 is used if the purchaser is assuming or taking title subject
to existing liens which are to be deducted from sales price.
Line 506 through 509 may be used to list additional liens which must
be paid off through the settlement to clear title to the property. They
may also be used to indicate funds to be held by the settlement agent
for the payment of water, fuel, or other utility bills which cannot be
prorated between the parties at settlement because the amounts used by
the seller prior to settlement are not yet known.
Instructions for the use of lines 510 through 519 are the same as
those for lines 210 to 219 above.
Section L. Settlement Charges. For all items except those paid to
and retained by the Lender, the name of the person or firm receiving the
payment should be shown. The column which relates to the borrower's
transaction may be deleted from the copy of the form which will be
furnished to the seller and the column which relates to the seller's
transaction may be deleted from the copy of the form which will be
furnished to the borrower.
Line 700. If the sales commission paid by the seller is based on a
percentage of the purchase price, enter the purchase price, the
percentage, and the dollar amount of the total commission paid by the
seller.
Lines 701-702 are to be used to state the split of the commission
where the person conducting the settlement disburses portions of the
commission to two or more agents.
Line 703. If the broker is retaining a part of the earnest money
deposit to apply towards his commission, include in lines 703 only that
part of the commission being disbursed at settlement.
Line 704 may be used for additional charges made by the sales agent,
or for a sales commission charged to the buyer, which will be disbursed
by the settlement agent.
Line 801. Enter the fee charged by the Lender for processing or
originating the loan. If this fee is computed as a percentage of the
loan amount, enter the percentage in the blank indicated.
Line 802. Enter the loan discount charged by the lender, and, if it
is computed as a percentage of the loan amount, enter the percentage in
the blank indicated.
Line 803. Enter appraisal fees, if there is a charge separate from
the origination fee. The VA or FHA appraisal fee is included on line
806.
Line 805 is used only for inspections by the lender or his personnel.
Charges for other pest or structural inspections, required by
Regulation X to be stated, should be entered in lines 1301-1305.
Line 806 should be used for a VA appraisal fee, FHA application fee
(which covers the cost of appraisal for the agency as well), or a fee
required by a private mortgage insurance company.
Line 807 is provided for convenience in using the form for loan
assumption transactions.
Line 901. If interest is collected at settlement for a part of a
month or other period between settlement and the date from which
interest will be collected with the first regular monthly payment, enter
that amount here. If such interest is not collected until the first
regular monthly payment, no entry should be made on line 901.
Lines 1000-1008. This series is used for amounts collected by the
Lender from the borrower and held in an account for the future payment
of the obligations listed as they fall due. In many jurisdictions this
is referred to as an ''escrow,'' ''impound,'' or ''trust'' account. In
addition to the items listed, some Lenders may require reserves for
flood insurance, condominium owners association assessments, etc.
Lines 1100-1113. In many jurisdictions the same person (for example,
an attorney or a title insurance company) performs several of the
services listed in this series and makes a single undifferentiated
charge for such services. In such cases, enter the overall fee on line
1107 (for attorneys), or line 1108 (for title companies), and enter on
that line the item numbers of the services listed which are covered in
the overall fee. If this is done, no amounts should be entered for the
individual items which are covered by the overall fee.
Line 1101. Enter here the fee of the person or firm conducting the
settlement. In some jurisdictions this is termed a closing or escrow
fee. If two or more persons or firms make charges in connection with
the same transaction, enter total charges in the appropriate columns,
and indicate the breakdown of charges on the line after the word ''to.''
Lines 1102 and 1103. In some jurisdictions the same person (for
example, an attorney) both searches the title (that is, performs the
necessary research in the records) and examines title (that is, makes a
determination as to what matters affect title, and provides a title
report or opinion). If such a person charges only one fee for both
services, it should be entered on line 1103. If separate persons
perform these tasks, or if separate charges are made for searching and
examination, they should be listed separately.
Line 1105. Enter charges for preparation of deeds, mortgages, notes,
etc. If more than one person receives a fee for such work in the same
transaction, show the total paid in the appropriate column and the
individual charges on the line following the word ''to.''
Lines 1108-1110. Enter the total charge for title insurance (except
for the cost of the title binder) on line 1108. Enter on lines 1109 and
1110 the individual charges for the Lender's and owner's policies. Note
that these charges are not carried over into the borrower's and seller's
columns, since to do so would result in a duplication of the amount in
line 1108. If a combination Lender's/owner's policy is available show
this amount as an additional entry on line 1109 and 1110.
Lines 1111-1113. These lines are for the entry of other title
charges not already itemized. Examples in some jurisdictions would
include a fee to a private tax service, a fee to a county tax collector
for a tax certificate, and a fee to a public title registrar for a
certificate of title under a Torrens Act. Show the attorney's fees for
legal representation on lines 1111-1113.
Lines 1303-1305. Enter on these lines any other settlement charges
not referrable to the categories listed above on the form, which are
required to be stated by Regulation X. Examples may include structural
inspections or pre-sale inspection of heating, plumbing, or electrical
equipment. These inspection charges may include a fee for insurance or
warranty coverage.
Line 1400. Enter the total settlement charges paid from borrower's
funds and seller's funds. These totals are also entered on lines 103
and 502, respectively, in sections J and K.
Insert Illus. 13A
Insert Illus. 14A
24 CFR 3500.21 Appendix B to Part 3500 -- Facts and Comments on Section 8 Which Provide Further Clarification of Regulations
24 CFR 3500.21 Pt. 3500, App. B
The following illustrations provide additional guidance on the
meaning and coverage of Section 8 of RESPA. While particular
illustrations may refer to particular providers of settlement services,
such illustrations are applicable by analogy to providers of settlement
services other than those specifically mentioned. It should be noted
that other provisions of Federal or state law may be applicable to the
practices and payments discussed in the following illustrations.
1. Facts. A, a provider of settlement services, maintains an
abnormally large balance in a non-interest bearing account with B, a
mortgage lender, pursuant to an understanding that B will refer
borrowers of Federally Related Mortgage Loans to A for the purchase of
settlement services in connection with the settlement of such loans.
Comments. Allowing B to use the deposited funds at no interest
appears to be a thing of value given by A to B pursuant to an agreement
or understanding that business incident to a real estate settlement
shall be referred to A in violation of Section 8 of RESPA. The
maintenance of any accounts reasonably needed by A in the normal course
of its business would not be a violation of Section 8.
2. Facts. B, a lender of Federally Related Mortgage Loans, pays A, a
real estate agent, a fee of $25 per transaction purportedly for services
performed such as arranging for B's appraiser to visit the property.
The purported services for which the fee is paid are services that real
esstate agents frequently perform as part of their services and the fee
is really intended to enable B to compensate A for referring potential
borrowers to B.
Comments. Both A and B are in violation of Section 8 of RESPA, since
the fee is being paid in compensation for the referral of business
rather than for legitimate services actually rendered by B on behalf of
A.
3. Facts. A, a provider of settlement services, provides settlement
services at abnormally low rates or at no charge at all to B, a builder,
in connection with a subdivision being developed by B. B agrees to
refer purchasers of the completed homes in the subdivision to A for the
purchase of settlement services in connection with the sale of
individual lots by B.
Comments. The rendering of services by A to B at little or no charge
constitutes a thing of value given by A to B in return for the referral
of settlement business and both A and B are in violation of Section 8 of
RESPA.
4. Facts. B, a Lender, encourages persons who receive Federally
Related Mortgage Loans from it to employ A, an attorney, to search title
and perform related settlement services in connection with their
transaction. B and A have an understanding that in return for the
referral of this business A will provide legal services to B or B's
officers or employees at abnormally low rates or for no charge.
Comments. Both A and B are in violation of Section 8 of RESPA.
5. Facts. A, A provider of settlement services, pays referral fees to
persons who refer settlement business on commercial real estate to A.
Comments. While commercial transactions are not covered by RESPA, the
payment of such referral fees would be a violation of Section 8 if they
involve indirect compensation for the referral of settlement business
covered by RESPA.
6. Facts. A, a real estate broker, obtains all necessary licenses
under state law to act as a title insurance agent. A refers individuals
who are purchasing homes in transactions in which A participates as a
broker to B, a title company, for the purchase of title insurance
services. A fills out a simple form but performs no other services in
connection with the issuance of the title insurance policy. B pays A a
commission for the transactions.
Comments. The payment of a commission by B to A under circumstances
where no substantial services are being provided by A to B is a
violation of Section 8 of RESPA.
7. Facts. A, a ''mortgage originator'' or ''mortgage broker'',
receives loan applications and refers borrowers to lenders for a fee.
Comments. If A performs services such as obtaining credit and
appraisal information or preparing an application for mortgage insurance
or guarantee which are of value to the Lender paying the fee, without
reference to the referral value of such services, and the fees paid bear
a reasonable relationship to the value of such services, the payment of
such a fee would not be in violation of Section 8 of RESPA.
8. Facts. A, a title insurance company, provides among its other
services an ''insured Closing Service Letter''. Under this letter, for
which no separate or additional charge is made, the company agrees to
provide indemnity against loss due to certain fraudulent or negligent
acts of the company's policy-issuing agents or approved attorneys in
complying with closing instructions and in conducting the closing of any
transaction in connection with which a policy of title insurance is to
be issued by A.
Comments. Where A has provided such an Insured Closing Service Letter
to a specified person and the protection afforded thereby is effective
without regard to whether the particular case was referred to A by the
person receiving protection under such letter, the provision of the
letter would not be pursuant to an agreement or understanding that
settlement services be referred, and therefore not in violation of
Section 8.
9. Facts. A, a service corporation, is a title insurance agent for B,
a title insurance company. The search and examination of title, in
connection with applications for title insurance policies prepared by A,
are performed by employees of B. Employees of B also make any
determinations as to the insurability of title. A issues title
insurance policies on behalf of B and receives a commission equal to the
amount paid other title insurance agents in the community, including
other agents of B, who perform the title search and examination as well
as prepare and issue the title insurance policy.
Comments. While A may be performing some real service for B, the fact
that the amount of the commission received by A is equal to the
commissions customarily paid to full-service title insurance agents who
perform substantially greater and more valuable services indicates that
the commission paid by B to A is really intended to compensate A for the
referral of business. The amount by which the commission exceeds the
reasonable value of the services rendered by A to B would be a referral
fee prohibited by Section 8 of RESPA. Section 8 does not prohibit
variations in the amount of commissions that may be paid, nor does it
require that the quantum of services rendered be identical in all cases,
so long as services significant to the issuance of a title insurance
policy are rendered and the amount of the commission bears a reasonable
relationship to the services rendered.
10. Facts. A, a real estate broker, refers title business to B, a
company that is a licensed title agent for C, a title insurance company.
A is part owner of B. B performs the title search and examination,
makes determinations of insurability and issues a policy of title
insurance on behalf of C, for which C pays B a commission. B pays
annual dividends to its owners, including A, based on the relative
amount of business each of its owners refers to B.
Comments. While the payments of a commission by C to B is not a
violation of Section 8 of RESPA, if the amount of the commission
constitutes reasonable compensation for the services performed by B for
C, the payment of a dividend or the giving of any other thing of value
by B to A that is based on the amount of business referred to B by A
constitutes a violation of Section 8. Similarly, if the amount of stock
held by A in B (or, if B were a partnership, the distribution of
partnership profits by B to A) varied in proportion to the amount of
business referred or expected to be referred, or if B retained any funds
for subsequent distribution to A where such funds were generally in
proportion to the amount of business A referred to B, such arrangements
would constitute violations of Section 8.
24 CFR 3500.21 24 CFR Ch. XXV (4-1-92 Edition)
24 CFR 3500.21 Neighborhood Reinvestment Corporation
24 CFR 3500.21 CHAPTER XXV -- NEIGHBORHOOD
24 CFR 3500.21 REINVESTMENT CORPORATION
Part
Page
4100 Organization and channeling of functions
24 CFR 3500.21
24 CFR 3500.21 24 CFR Ch. XXV (4-1-92 Edition)
24 CFR 3500.21 Neighborhood Reinvestment Corporation
24 CFR 3500.21 PART 4100 -- ORGANIZATION AND CHANNELING OF FUNCTIONS
Sec.
4100.1 Functions and activities.
4100.2 General organization.
4100.3 Field activities.
4100.4 Inquiries.
Authority: Title VI, Pub. L. 95-557, 92 Stat. 2115 (42 U.S.C.
8101 et seq.); as amended by sec. 315, Pub. L. 96-399, 94 Stat.
1645; sec. 710, Pub. L. 97-320, 96 Stat. 1544; and sec. 520, Pub.
L. 100-242, 101 Stat. 1815.
Source: 49 FR 12700, Mar. 30, 1984, unless otherwised noted.
24 CFR 4100.1 Functions and activities.
(a) General statement. The Neighborhood Reinvestment Corporation
(referred to in this part as the Corporation) was established by
Congress in the Neighborhood Reinvestment Corporation Act (title VI of
the Housing and Community Development Amendments of 1978, Pub. L.
95-557, October 31, 1978). The Corporation is not a department, agency,
or instrumentality of the Federal Government.
(b) The Corporation is authorized to receive and expend Federal
appropriations and other public and private revenues to conduct a
variety of programs designed primarily to revitalize older urban
neighborhoods by mobilizing public, private, and community resources at
the neighborhood level. These programs include:
(1) Neighborhood Housing Services. The major effort of the
Corporation is to assist local communities in the development, expansion
and provision of technical services to local Neighborhood Housing
Services (NHS) programs. NHS programs are based upon partnerships of
community residents, and representatives of local governments and
financial institutions. Each local program is administered by an
autonomous, private, non-profit corporation, and conducts a
comprehensive revitalization effort in locally selected neighborhoods.
Services to neighborhood residents include rehabilitation counseling,
construction assistance, financial counseling, loan referrals and loans
at flexible rates and terms to homeowners who do not meet private
lending criteria. Programs and strategies to remove blighting
influences, obtain improved public services and amenities, and improve
the neighborhood's image and the functioning of its real estate market
are also undertaken. To insure the continuing effectiveness of NHS
programs, the Corporation provides grants, training, information and
technical services to NHS programs.'
(2) Mutual Housing Associations. The Corporation also supports the
organizational development of, and provides technical assistance to,
Mutual Housing Associations. Mutual Housing Associations are private,
nonprofit organizations which own, manage and continually develop
affordable housing. Mutual Housing residents are members of the
Association which owns and manages their buildings; thus they enjoy the
security of long-term housing tenure. Mutual Housing developments are
capitalized through up-front grants and mortgages in a combination that
ensures permanent affordability to low- and moderate-income families.
Monthly housing charges to residents are kept at affordable levels on a
continuing basis. A key element of Mutual Housing is the Association's
commitment to use all resources in excess of operating and maintenance
costs for the production of additional units. A Mutual Housing
Association's board of directors includes current member-residents,
potential residents, and representatives from the community, local
government and business. Residents and community members make up the
majority on the board. A highly qualified professional staff, employed
by the Mutual Housing Association, carries out the day-to-day activities
of the organization. In addition to creating new affordable housing
opportunities, Mutual Housing Associations offer a creative alternative
for subsidized rental housing developments whose subsidies are scheduled
to expire.
(3) Neighborhood Preservation Projects. The Corporation identifies,
monitors, evaluates and supports through demonstration grants and
technical assistance other promising neighborhood preservation
strategies based on local, public-private partnerships.
(4) Programmatic Supplements. Proven, replicable programmatic tools
are offered as broadly as resources permit. Often, these selected
strategies are supported by Neighborhood Reinvestment grants. The
Corporation's major programmatic supplements include the following:
(i) Neighborhood Economic Development and Commercial Revitalization
Strategies. The Corporation's neighborhood economic development and
commercial revitalization strategies offer NHSs a variety of tools
designed to stabilize and enhance the economic base of NHS
neighborhoods. They complement NHSs' revitalization mission by focusing
the energies and resources of the partnership on the economic issues
underlying neighborhood decline. Neighborhood economic development and
commercial revitalization assures a viable neighborhood economy by
strengthening small businesses and improving the physical environment of
the area, thus providing additional goods, services, and employment
opportunities for the community.
(ii) Housing Development Strategies. The Corporation's Housing
Development Strategies program addresses the shortage of affordable,
quality housing available to low to moderate income families in NHS
neighborhoods, as well as the blighting effect of vacant lots and
substandard properties. Home ownership opportunities are created
through the planning and implementation of a variety of housing
mechanisms by the NHS, which are intended to reverse negative real
estate market trends, enhance new residential growth, and create renewed
neighborhood pride. The mechanisms being used to achieve these goals
include the following.
(A) The Owner Built Housing Program is a supervised housing
construction process that helps moderate-income homeowners to
collectively build their own homes. The NHS provides technical
assistance while private lenders and public bodies providing financing.
(B) The Owner Rehab Housing program assists low to moderate income
families in collectively rehabilitating existing blighted and vacant
structures.
(C) The Infill Housing Program provides a mechanism for assisting
NHSs in building new units on vacant land to meet the needs of
prospective lower income homeowners.
(D) The Urban Subdivisions Program focuses on providing low cost, new
housing for low-to-moderate income families on tracts of land suitable
for the construction of 20 or more units.
(iii) Problem Properties Strategies. This program assists NHSs in
addressing specific problem areas beyond the scope of basic NHS services
and typical financial resources. Through the implementation of various
problem properties strategies, NHS programs are able to assist tenants
to purchase, improve the physical condition of target blocks, eliminate
vacant neighborhood eyesores, develop housing and service facilities for
special populations, and stimulate private reinvestment and new
conventional mortgages in the NHS community.
(5) Apartment Improvement Program. The goal of the Apartment
Improvement Program is to provide an effective, economical means of
revitalizing and preserving neighborhoods with multi-family housing for
the benefit of the current residents. The program is based upon a
partnership of tenants and community representatives, property owners
and managers, financial institutions and local government. The program
assists in the development of an individually tailored improvement plan
of activities from which each building may benefit, including tenant
participation, tax assessment reviews, and increased investment or
restructured mortgages to improve the economic viability of the
buildings and to finance improvements.
(6) Neighborhood Housing Services of America. The Corporation also
supports Neighborhood Housing Services of America (NHSA), an
independent, private, non-profit corporation which provides a variety of
services to local NHS programs, including a secondary market for NHS
revolving loan fund loans, and the strengthening of private sector
resources available to the network of local NHSs.
(49 FR 12700, Mar. 30, 1984, as amended at 54 FR 13061, Mar. 30,
1989)
24 CFR 4100.2 General organization.
(a) The Board of Directors. (1) The Corporation is under the
direction of a Board of Directors composed of six members: the Chairman
of the Federal Home Loan Bank Board or a member of the Federal Home Loan
Bank Board designated by the Chairman; the Secretary of Housing and
Urban Development; the Chairman of the Board of Governors of the
Federal Reserve System, or a member of the Board of Governors of the
Federal Reserve System designated by the Chairman; the Chairman of the
Federal Deposit Insurance Corporation or the appointive member of the
Board of Directors of the Federal Deposit Insurance Corporation if so
designated by the Chairman; the Comptroller of the Currency; and the
Chairman of the National Credit Union Administration, or a member of the
Board of the National Credit Union Administration designated by the
Chairman. Members of the Board serve without additional compensation.
The Board elects from among its members a Chairman and Vice-Chairman.
The Bylaws of the Corporation provide for the creation of an Audit
Committee, and such other committees as the Board may from time to time
establish.
(2) The Board holds an Annual Meeting each year during the month of
May (or as the Bylaws or the Board may specify). The Board also holds
regular meetings at least quarterly and special meetings as required.
The meetings of the Board are conducted in accordance with provisions of
the Neighborhood Reinvestment Corporation Act, the Government in the
Sunshine Act (5 U.S.C. 552b), the Corporation's Bylaws, and when not
inconsistent with the foregoing, with Robert's Rules of Order. Every
portion of every meeting of the Board is open to public observation
except as provided by the Government in the Sunshine Act. Interested
members of the public may attend such meetings, but may not participate
therein unless invited or permitted to do so by the Board.
(3) The Secretary of the Corporation, in consultation with the
Corporation's General Counsel, is responsible for taking such steps as
are required to ensure the Corporation's compliance with the Government
in the Sunshine Act, as that Act may be amended from time to time.
Consistent with this responsibility, the Secretary of the Corporation
provides to the Communications Department at the principal office of the
Corporation such records as the Act requires to be made available to the
public for access during regular office hours on regular business days.
(b) The Officers. (1) The officers of the Corporation are the
Executive Director, the Deputy Executive Director, the Secretary, the
Treasurer, and such other officer positions as the Board may, in
consultation with the Executive Director, create. The Board elects the
officers of the Corporation annually.
(2) The Neighborhood Reinvestment Corporation Act provides that the
Executive Director shall serve as the chief executive officer of the
Corporation. Consistent with that authority, the Corporation's Bylaws
provide that the Executive Director shall have the responsibility and
authority for the day-to-day administration of the affairs of the
Corporation under the general supervision of the Board. The Board
periodically reviews the activities of the Executive Director and, from
time to time, provides guidance and policy direction to the Executive
Director in the exercise of his or her authority.
(3) The responsibilities and authorities of the other officers of the
Corporation are set forth in the Corporation's Bylaws, resolutions and
policies adopted by the Board, duties and authorities delegated to each
officer, other statutes and this statement. (See, for example, the
Government in the Sunshine Act and paragraph (a)(3) of this section for
specific duties of the Secretary and General Counsel.)
(c) Principal Office. The Corporation maintains its principal office
in the District of Columbia. Currently, the principal office is
maintained at 1325 G Street NW., Suite 800, Washington, DC 20005.
(49 FR 12700, Mar. 30, 1984, as amended at 54 FR 13062, Mar. 30,
1989)
24 CFR 4100.3 Field activities.
The Corporation conducts its field activities from district and field
offices around the country. District offices provide coordination of
field activities in support of local programs within the geographic
limits of each district. Field offices within each district provide
assistance in the development and support of local programs. A current
directory of all district and field offices can be obtained upon request
from the Communications Department, Neighborhood Reinvestment
Corporation, 1325 G Street NW., Suite 800, Washington, DC 20005.
(49 FR 12700, Mar. 30, 1984, as amended at 54 FR 13061, Mar. 30,
1989)
24 CFR 4100.4 Inquiries.
(a) General. All requests for information, forms, and records should
be addressed to: Communications Department, Neighborhood Reinvestment
Corporation, 1325 G Street NW., Suite 800, Washington, DC 20005.
(b) Applications. Applications for the Corporation's assistance in
the development of NHS programs and complementary programs and
strategies, or the support of other promising neighborhood strategies
are accepted on an ongoing basis. Local governmental or nonprofit
entities should submit completed applications (forms are available upon
request), including supportive materials, to the Corporation at the
address stated in paragraph (a) of this section. The Corporation
reviews applications to determine their readiness for development or
support. Promising applications are selected for field reviews.
Subject to the availability of the Corporation's resources, the
Corporation may enter into agreements with top ranking applicants to
provide financial and technical assistance in the development or support
of selected programs. The application form contains a list of the
criteria used for determining the readiness and promise of applications.
(c) Records. (1) The Corporation maintains such records and
information for public inspection and copying as are required by the
Freedom of Information Act (5 U.S.C. 552), as that Act may be amended
from time to time. Records are available for public inspection and
copying during regular business hours on regular business days at the
address stated in paragraph (a) of this section. Requests for records
should be submitted in writing and state the full name and address of
the person requesting the records and a description of the records or
other information sought that is reasonably sufficient to permit their
identification without undue difficulty. A request should be submitted
sufficiently in advance of the date inspection or copying is desired,
preferably by mail.
(2) Although the Corporation finds that the publication of indexes of
statements of policy and interpretations or administrative staff manuals
and instructions would be unnecessary and impracticable, such
information will be made available upon request.
(d) Fees for providing copies for records. Fees shall be assessed
pursuant to the Freedom of Information Act (5 U.S.C. 552) in order to
recover the full allowable direct costs of providing copies of records.
For purposes of this section, the term direct costs means those
expenditures which the Corporation actually incurs in searching for and
duplicating (and in the case of commercial use requesters, reviewing)
documents to respond to a Freedom of Information Act (''FOIA'') request.
Direct costs include, for example, the salaries of the employees
performing the work (the basic rate of pay plus 16 percent of that rate
to cover benefits) and the cost of operating duplicating equipment. The
term search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents. Searches may be done
manually or by computer using existing programming. The term
duplication refers to the process of making a copy of a document
necessary to respond to a FOIA request. Such copies can take the form
of paper copy, microfilm, audiovisual materials, or machine readable
documentation (e.g., magnetic tape or disk), among others. The term
review refers to the process of examining documents located in response
to a commercial use request to determine whether any portion of any
document is permitted to be withheld. It also includes processing any
documents for disclosure, e.g., doing all that is necessary to exise
them and otherwise prepare them for release. Review does not include
time spent resolving general legal or policy issues regarding the
application of exemptions. A schedule based on these principles is set
forth in paragraph (d)(9) of this section.
(1) Categories of requesters. Fees will be assessed according to the
category of the requester. There are four categories:
(i) Commercial use requesters. For purposes of this section, the
term commercial use request refers to a request from or on behalf of one
who seeks information for a use or purpose that furthers the commercial,
trade, or profit interests of the requester or the person on whose
behalf the request is made. In determining whether a requester properly
belongs in this category, the Corporation will look to the use to which
the requester will put the documents requested. If the use is not clear
from the request itself, or if there is reasonable cause to doubt the
requester's stated use, the Corporation shall seek additional
clarification before assigning the request to a specific category.
(ii) Educational and noncommercial scientific institution requesters.
For purposes of this section, the term educational institution refers
to a preschool, a public or private elementary or secondary school, an
institution of graduate higher education, an institution of
undergraduate higher education, an institution of professional
education, or an institution of vocational education, which operates a
program or programs of scholarly research. The term noncommercial
scientific institution refers to an institution that is not operated on
a commercial basis, as that term is used in paragraph (d)(1)(i) of this
section, and which is operated solely for the purpose of conducting
scientific research the results of which are not intended to promote any
particular product or industry. To be eligible for inclusion in this
category, requesters must show that the request is made as authorized by
and under the auspices of a qualifying institution, and that the records
are not sought for a commercial use, but are sought in furtherance of
scholarly (if the request is from an educational institution) or
scientific (if the request is from a noncommercial scientific
institution) research.
(iii) Requesters who are representatives of the news media. For
purposes of this section, the term representative of the news media
refers to any person actively gathering information for an entity that
is organized and operated to publish or broadcast news to the public.
Examples of news media entities include television or radio stations
broadcasting to the public at large, and publishers of periodicals (but
only in those instances when they can qualify as disseminators of news)
who make their products available for purchase or subscription by the
general public. These examples are not intended to be all-inclusive.
In the case of freelance journalists, they may be regarded as working
for a news organization if they demonstrate a solid basis for expecting
publication through that organization, even though not actually employed
by it. A publication contract would be the clearest proof, but the
Corporation may also look at the past publication record of a requester
in making this determination. To be eligible for inclusion in this
category, a requester must meet the criteria above, and his or her
request must not be made for a commerical use. In reference to this
class of requester, a request for records supporting the news
dissemination function of the requester shall not be considered to be a
request that is for a commercial use.
(iv) All other requesters.
(2) Limitations on fees to be charged -- (i) Commercial use
requesters. Commercial use requesters shall be assessed the full direct
costs for searching for, reviewing, and duplicating records, in
accordance with the fee schedule at paragraph (d)(9) of this section.
Commercial use requesters are not entitled to the free search time or
free pages of duplication provided to other categories of requesters.
(ii) Educational and noncommercial scientific institution requesters.
Requesters in this category may be assessed fees only for duplication
of records in excess of the first 100 pages. Requesters in this
category may not be assessed fees for search or review.
(iii) Requesters who are representatives of the news media.
Requesters in this category may be assessed fees only for duplication of
records in excess of the first 100 pages. Requesters in this category
may not be assessed fees for research or review.
(iv) All other requesters. Requesters who do not fit into any of the
categories above shall be assessed fees only for searching and
duplicating records, except that the first 100 pages of duplication and
the first two hours of search time shall be furnished without charge.
Requesters in this category may not be assessed fees for review.
(v) Review of records. Charges will be assessed only for the initial
review of the located documents and not for time spent at the
administrative appeal level on an exemption applied at the initial
determination level. However, where records or portions of records are
withheld in full under an exemption which is subsequently determined not
to apply, and these records are reviewed again to determine the
applicability of other exemptions not previously considered, charges for
review are properly assessable.
(vi) Additional Copies. The Corporation will normally furnish only
one copy of any record. The allowance of 100 free pages of duplication
under paragraphs (d)(2) (ii), (iii), and (iv) of this section shall not
apply to additional copies furnished at the request of the record
requester. Full duplication fees shall be assessed for each page of
each such additional copy.
(3) Charges for unsuccessful search. Where applicable under
paragraph (d)(2) of this section search fees may be assessed for time
spent searching, even if the Corporation fails to locate the records or
if records located are determined to be exempt from disclosure.
(4) Notice of anticipated fees in excess of $25.00. Unless the person
making the request states in his or her initial request that he or she
will pay all costs regardless of amount, the Corporation will notify him
or her as soon as possible if there is reason to believe that the cost
for obtaining access to and/or copies of such records will exceed $25.
If such notice is given, the time limitations contained in the Freedom
of Information Act shall not commence until the person making the
intitial request agrees in writing to pay such cost.
(5) Advance Payments. The Communications Director is authorized to
require an advance payment of an amount up to the full estimated charges
whenever he or she determines that:
(i) The allowable charges that a requester may be required to pay are
likely to exceed $250 and the requester has no history of payment and
cannot provide satisfactory assurance that payment will be made; or
(ii) A requester has previously failed to pay a fee charged in a
timely manner.
If such a payment is required, the time limitations contained in the
Freedom of Information Act shall not commence until payment is made.
(6) Charging Interest. The Corporation will assess interest charges
on any unpaid fees starting on the 31st day following the day on which
the billing for fees was sent to the requester. Interest will be at the
rate prescribed in 31 U.S.C. 3717 and will accrue from the date of the
billing. Receipt of the fee by the Corporation, even if not processed,
will stay the accrual of interest. Interest is not chargeable for
unpaid advance payments under paragraph (d)(5) of this section.
(7) Aggregating requests. A requester may not file multiple requests
at the same time, each seeking portions of the document or documents,
solely in order to avoid payment of fees. When the Corporation
reasonably believes that a requester, or a group of requesters acting in
concert, is attempting to break a request down into a series of requests
for the purpose of evading the assessment of fees, the Corporation may
aggregate any such requests and charge accordingly.
(8) Waiver or reduction of fee. The Corporation will furnish
documents without charge or at a reduced charge when it is determined
that disclosure of the information is in the public interest because it
is likely to contribute significantly to public understanding of the
operations or activities of the Corporation and is not primarily in the
commercial interest of the requester. In making a request for a waiver
or reduction of fees, a requester should include a clear statement of
his or her interest in the requested documents: The proposed use for
the documents and whether the requester will derive income or other
benefit from such use; and a statement of how the public will benefit
from such use. Determinations concerning waiver or reduction of fees
shall be made by the Executive Director, or his or her designee.
(9) Schedule of fees. Fees for searching for, reviewing,
duplicating, and providing records and information of the Corporation
under this section will be assessed in accordance with the following
schedule:
(i) Manual search. For each quarter hour or fraction thereof:
$3.37.
(ii) Computer search. For each quarter hour or fraction thereof:
$3.37.
(iii) Review. For each quarter hour or fraction thereof: $4.87.
(iv) Duplication.
(A) For a paper photocopy of an existing paper record, $.10 per page.
(B) For duplication of records other than existing paper records
(such as computer-stored information, audio or video tapes, microfiche
or microfilm), the fee shall equal the actual direct cost of production
and duplication of the records or information in a form that is
reasonably usable by the requester.
(10) Processing Costs. The Communications Director will waive
payment in instances in which the costs of routine collection and
processing of the fee are likely to equal or exceed the amount of the
fee.
(49 FR 12700, Mar. 30, 1984, as amended at 54 FR 50953, Dec. 19,
1989)
24 CFR 4100.4 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.
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Title 24 -- Housing and Urban Development
Material Approved for Incorporation by Reference
Material Approved for Incorporation by Reference
The Director of the Federal Register has approved under 5 U.S.C.
552(a) and 1 CFR Part 51 the incorporation by reference of the following
publications. This list contains only those incorporations by reference
effective as of the revision date of this volume. Incorporations by
reference found within a regulation are effective upon the effective
date of that regulation. For more information on incorporation by
reference, see the preliminary pages of this volume.
24 CFR 4100.4 24 CFR CHAPTER XX (PARTS 3200 TO 3299)
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, OFFICE OF ASSISTANT
SECRETARY FOR HOUSING -- FEDERAL HOUSING COMMISSIONER
24 CFR
Aluminum Association
818 Connecticut Avenue, NW., Washington, DC 20006
AA-1982, Aluminum Construction Manual, Sec. 1, Specifications for
Aluminum Structures 3280.304(b)(1)
American Architectural Manufacturers Association
2700 River Road, Suite 118, Des Plains, IL 60018
AAMA 1701.2-1985, Primary Window and Sliding Glass Door Voluntary
Standard for Utilization in Manufactured Housing 3280.403(b);
3280.403(e); 3280.403(e)(2); 3280.404(b)
AAMA 1702.2-1985, Swinging Exterior Passage Doors Voluntary Standard
for Utilization in Manufactured -- Housing 3280.405(b); 3280.405(e);
3280.405(e)(2)
AAMA 1704-1985, Voluntary Standard Egress Window Systems for
Utilization in Manufactured -- Housing 3280.404(b); 3280.404(e)
American Institute of Steel Construction
400 N. Michigan Avenue, Chicago, IL 60611
AISC S326-1978, Specification for the Design, Fabrication, and
Erection of Structural Steel for Buildings 3280.304(b)(1);
3280.305(i)(1)
American Iron and Steel Institute
1000 16th Street, NW., Washington, DC 20036
AISI-1980, The New and the Old Specification for the Design of
Cold-Formed Steel Structural Members 3280.304(b)(1); 3280.305(i)(1)
AISI-1974, Stainless Steel Cold-Formed Structural Design Manual
3280.304(b)(1)
AISI-1973, Manual for Structural Applications of Steel Cables for
Buildings 3280.304(b)(1)
American National Standards Institute
1430 Broadway, New York, N.Y. 10018
ANSI A58.1-1982, Building Code Requirements for Minimum Design Loads
in Buildings and Other Structures 3280.304(b)(1)
ANSI A112.14.1-1975, Backflow Valves 3280.604(a)
ANSI A112.18.1M-1979, Finished and Rough Brass Plumbing Fixture
Fittings 3280.604(a)
ANSI A112.19.1M-1979, Enameled Cast Iron Plumbing Fixtures
3280.604(a)
ANSI A112.19.2(M)-1982, Vitreous China Plumbing Fixtures 3280.604(a)
ANSI A112.19.3-1976, Stainless Steel Plumbing Fixtures 3280.604(a)
ANSI/ASME A112.19.4(M)-1984, Porcelain Enameled Formed Steel Plumbing
Fixtures 3280.604(a)
ANSI A112.19.5-1979, Trim for Water Closet Bowls, Tanks, and Urinals
3280.604(a)
ANSI/AHA A135.4-1982, Basic Hardboard 3280.304(b)(1)
ANSI/AHA A135.5-1982, Prefinished Hardboard Paneling 3280.304(b)(1)
ANSI/AHA A135.6-1984, Hardboard Siding 3280.304(b)(1)
ANSI/AITC A190.1-1983, Structural Glued Laminated Timber
3280.304(b)(1)
ANSI A208.1-1979, Mat-Formed Wood Particleboard 3280.304(b)(1)
ANSI/ASME B1.20.1-1983, Pipe Threads, General Purpose (Inch), adopted
25 October 1984 3280.604(a); 3280.703; 3280.705(e); 3280.706(d)
ANSI B16.3-1977, Malleable Iron Threaded Fittings 3280.604(a)
ANSI B16.4-1977, Cast Iron Threaded Fittings 3280.604(a)
ANSI B16.15-1978, Cast Bronze Threaded Fittings 125 and 250 Pound
3280.604(a)
ANSI B16.18-1984, Cast Copper Alloy Solder-Joint Pressure Fittings
3280.604(a)
ANSI B16.22-1980, Wrought-Copper and Copper Alloy, Solder-Joint
Pressure Fittings 3280.604(a)
ANSI B16.23-1984, Cast Copper Alloy Solder-Joint Drainage Fittings,
DWV 3280.604(a)
ANSI B16.26-1983, Cast Copper Alloy Fittings for Flared Copper Tubes
3280.604(a)
ANSI B16.29-1980, Wrought Copper and Wrought Copper Alloy
Solder-Joint Drainage Fittings -- DWV 3280.604(a)
ANSI B36.10-1979, Welded and Seamless Wrought Steel Pipe 3280.604(a);
3280.703; 3280.705(b)(1); 3280.706(b)(1)
ANSI C72.1-1972, Household Automatic Electric Storage Type Water
Heaters 3280.707(d)
ANSI C73.17-1972, Dimension of Caps, Plugs, and Receptacles,
Grounding Type 3280.803(g)
ANSI Z21.1-1982, Household Cooking Gas Appliances 3280.703
ANSI Z21.5.1-1982, Gas Clothes Dryers Vol. 1, Type 1 Clothes Dryers
3280.703
ANSI Z21.10.1-1984, With Addendas ANSI Z21.10.1a-1985 and ANSI
Z21.10.lb-1986, Gas Water Heaters Vol. 1, Storage Water Heaters with
Input Ratings of 75,000 BTU per hour or Less 3280.703; 3280.707(d)(2)
ANSI Z21.15-1979, With Addenda 15a-1981 and 15b-1984, Manually
Operated Gas Valves 3280.703
ANSI Z21.19-1983, Refrigerators Using Gas Fuel 3280.703
ANSI Z21.20-1979, With Addenda 20a-1979 and 20b-1982, Automatic Gas
Ignition Systems and Components 3280.703
ANSI Z21.21-1974, With Addenda 21a-1977 and 21b-1981, Automatic
Valves for Gas Appliances 3280.703
ANSI Z21.22-1979, Relief Valves and Automatic Gas Shutoff Devices for
Hot Water Supply Systems 3280.604(a); 3280.703
ANSI Z21.23-1980, Gas Appliance Thermostats 3280.703
ANSI Z21.24-1981, With Addenda 24a-1983 and 24b-1985, Metal
Connectors for Gas Appliances 3280.702(a)(17); 3280.703
ANSI Z21.40.1-1981, With Addenda 1a-1982, Gas-Fired Absorption Summer
Air Conditioning Appliances 3280.703; 3280.714(a)(2)
ANSI Z21.47-1983, Gas-Fired Central Furnaces (Except Direct Vent and
Separated Combustion System Central Furnaces) 3280.703
ANSI Z21.64-1978, Direct Vent Central Furnaces 3280.703
ANSI Z34.1-1982, For Certification -- Third-Party Certification
Program 3280.403(e)(1); 3280.405(e)(1)
ANSI Z97.1-1984, Safety Performance Specifications and Methods of
Test for Safety Glazing Materials Used in Buildings 3280.114(b);
3280.304(b)(1); 3280.403(d)(1); 3280.604(a); 3280.607(b)(3)(iii)
ANSI Z124.1-1980, Plastic Bathtub Units 3280.604(a)
ANSI Z124.2-1980, Plastic Shower Receptors and Shower Stalls
3280.604(a)
ANSI Z124.3-1980, Plastic Lavatories 3280.604(a)
ANSI Z124.4-1983, Plastic Water Closets, Bowls and Tanks 3280.604(a)
ANSI Z223.1-1984, National Fuel Gas Code 3280.703
American Plywood Association
P.O. Box 11700, Tacoma, WA 98401
APA-1985, APA Design/Construction Guide, Residential and Commercial
3280.304(b)(1)
APA-1984, Design and Fabrication of All-Plywood Beams, Suppl. 5
3280.304(b)(1)
APA-1985, Plywood Design Specification 3280.304(b)(1)
APA-1984, Design and Fabrication of Plywood Lumber Beams, Suppl. 2
3280.304(b)(1)
APA-1985, Design and Fabrication of Plywood Curved Panels, Suppl. 1
3280.304(b)(1)
APA-1982, Design and Fabrication of Plywood Sandwich Panels, Suppl.
4 3280.304(b)(1)
APA-1984, Design and Fabrication of Plywood Stressed Skin Panels,
Supp. 3 3280.304(b)(1)
Air Conditioning and Refrigeration Institute
1815 Ft. Myer Dr., Arlington, VA 22209
Standard for Unitary Air Conditioning Equipment 210-81, With 84
Addendum 3280.511(b); 3280.703; 3280.714(a)(1)
Standard for Air-Source Unitary Heat Pump Equipment, 240-81 With 1984
Addendum 3280.703; 3280.714(a)(1)(ii); 3280.714(a)(1)(iii)
American Society of Heating, Refrigeration and Air Conditioning
Engineers
1791 Tullie Circle, NE, Atlanta, GA 30329
ASHRAE, 1981, Handbook of Fundamentals 3280.508; 3280.511
American Society of Mechanical Engineers
345 E. 47th St., New York, NY 10017
ASME Boiler and Pressure Vessel Code, Section VIII, Division 1,
''Rules for Construction of Pressure Vessels'' -- 1974 3280.704(b)(2)
American Society for Testing and Materials
1916 Race St., Philadelphia, PA 19103
ASTM A 53-83, Standard Specification for Pipe, Steel, Black and
Hot-Dipped, Zinc-Coated, Welded and Seamless 3280.604(a); 3280.703
ASTM A 74-82, Standard Specification for Cast Iron Soil Pipe and
Fittings 3280.604(a)
ASTM A 120-83, Standard Specification for Pipe, Steel, Black and Hot
Dipped Zinc-Coated (Galvanized) Welded and Seamless For Ordinary Uses
3280.604(a); 3280.703
ASTM A 539-83, Standard Specification for Electric-Resistance-Welded
Coiled Steel Tubing for Gas and Fuel Oil Lines 3280.703; 3280.705(b)(4)
ASTM B 42-84, Standard Specification for Seamless Copper Pipe,
Standard Sizes 3280.604(a); 3280.703
ASTM B 43-84, Standard Specification for Seamless Red Brass Pipe,
Standard Sizes 3280.604(a); 3280.705(b)(1)
ASTM B 88-83a, Standard Specification for Seamless Copper Water Tube
3280.604(a); 3280.703; 3280.705(b)(3); 3280.706(b)(3)
ASTM B 251-84, Standard Specification for General Requirements for
Wrought Seamless Copper and Copper-Alloy Tubes 3280.604(a); 3280.703
ASTM B 280-83, Standard Specification for Seamless Copper Tube for
Air Conditioning and Refrigeration Field Service 3280.703;
3280.705(b)(3); 3280.706.(b)(3)
ASTM B 306-83, Standard Specification for Copper Drainage Tube (DWV)
3280.604(a)
ASTM C 36-84, Standard Specification for Gypsum Wallboard
3280.304(b)(1)
ASTM C 564-70 (82), Standard Specification for Rubber Gaskets for
Cast Iron Soil Pipe and Fittings 3280.604(a); 3280.611(d)(5)
ASTM D 781-68 (73), Standard Test Methods for Puncture and Stiffness
of Paperboard, and Corrugated and Solid Fiberboard 3280.304(b)(1);
3280.305(g)(4)
ASTM D 2016-74 (83), Standard Test Methods for Moisture Content of
Wood 3280.304(b)(1)
ASTM D 2235-81, Standard Specification for Solvent Cement for
Acrylonitrile-Butadiene-Styrene (ABS) Plastic Pipe and Fittings
3280.604(a)
ASTM D 2564-80, Standard Specification for Solvent Cement for Poly
(Vinyl Chloride) (PVC) Plastic Pipe and Fittings 3280.604(a)
ASTM D 2661-84, Standard Specification for
Acrylonitrile-Butadiene-Styrene (ABS) Plastic Drain, Waste and Vent Pipe
an1 Fittings 3280.604(a)
ASTM D 2665-82, Standard Specification for Poly (Vinyl Chloride)
(PVC) Plastic Drain, Waste, and Vent Pipe and Fittings 3280.604(a)
ASTM D 2846-82, Standard Specification for Chlorinated Poly (Vinyl
Chloride) (CPVC) Plastic Hot and Cold Water Distribution Systems
3280.604(a)
ASTM D 3309-83, Standard Specification for Polybutylene (PB) Plastic
Hot and Cold Water Distribution Systems 3280.604(a)
ASTM D 3311-82, Standard Specification for Drain, Waste, and Vent
(DWV) Plastic Fitting Patterns 3280.604(a)
ASTM E 84-84, Standard Test Method for Surface Burning.
Characteristics of Building Materials 3280.203(a)
ASTM E 162-83, Standard Test Method for Surface Flammability of
Materials Using a Radiant Heat Energy Source 3280.203(a)
ASTM E 773-83, Standard Test Method for Seal Durability of Sealed
Insulating Glass Units 3280.403(d)(2)
ASTM E 774-84a, Standard Specification for Sealed Insulating Glass
Units 3280.403(d)(2)
ASTM F 628-84, Standard Specification for
Acrylonitrile-Butadiene-Styrene (ABS) Plastic Drain, Waste, and Vent
Pipe Having a Foam Core 3280.604(a)
Cast Iron Soil Pipe Institute
1499 Chain Bridge Road, McLean, VA 22101
CISPI-301-85, Standard Specification for Hubless Cast Iron Soil Pipe
and Fittings for Sanitary and Storm Drain, Waste, and Vent Piping
Applications 3280.604(a)
CISPI-310-85, Specification for Cast Iron Soil Pipe Institute's
Approved Coupling for Use in Connection with Hubless Cast Iron Soil Pipe
and Fittings for Sanitary and Storm Drain, Waste, and Vent Piping
Applications 3280.604(a)
CISPI-HSN-85, Specification for Neoprene Rubber Gaskets for Hub and
Spigot Cast Iron Soil Pipe and Fittings 3280.604(a); 3280.611(d)(5)
Federal Specification
General Services Administration, Specifications Branch, Room 6039,
GSA Building, 7th & D Sts., SW., Washington, DC 20407
L-P-320-B-1973, With 1977 Amendment 1, Pipe and Fittings, Plastic
(Polyvinyl Chloride (PVC), Drain, Waste and Vent (DWV) 3280.604(a)
L-P-322B-1973 With 1977 Amendment 1, Pipe and Fittings Plastic
(Acrylonitrile-Butadiene-Styrene) ABS Drain, Waste and Vent, DWV)
3280.604(a)
FF-N-105B-1971 With 1977 Amendment 4, Nails, Brads, Staples and
Spikes, Wire, Cut and Wrought 3280.304(b)(1)
QQ-S-781H-1974, With 1977 Amendment 2 and Notice I, Strapping, Steel,
and Seals 3280.304(b)(1); 3280.306(g)(2)
WW-N-351-C-1976 With 1977 Interim Amendment 1, Nipples, Pipe,
Threaded 3280.604(a)
WW-P-401E-1974, Pipe and Pipe Fittings, Cast-Iron, Soil 3280.604(a)
WW-P-541E/GEN-1980, Plumbing Fixtures (General Specifications)
3280.604(a)
WW-V-54-D1973, With 1977 Interim Amendment 3, Valve, Gate, Bronze,
(125, 150 and 200 Pound Threaded Ends, Flange Ends, Solder End and
Bronze Ends, for Land Use) 3280.604(a)
ZZ-R-765B-1970, With 1971 Amendment 1, Rubber, Silicone
3280.611(d)(5)
Gas Appliance Laboratory
3138 E. Olympic Blvd., Los Angeles, CA 90023
Standard for Fireplace Stoves for Installation In Mobile Structures
-- 1973 3280.703
Hardwood Plywood Manufacturers Association
P.O. Box 2789, Reston, VA 22090
HPMA-HP-SG-84, Structural Design Guide for Hardwood Plywood Wall
Panels 3280.304(b)(1)
ANSI/HPMA HP-1983, Hardwood and Decorative Plywood 3280.304(b)(1)
FTM 2-1983, Large Scale Test Method for Determining Formaldehyde
Emissions From Wood Products 3280.406(b)
HUD-FHA Use of Materials Bulletin
Department of Housing and Urban Development, 451 7th St., SW.,
Washington, DC 20410-8000
HUD-FHA Use of Materials Bulletin-UM-25d-73, Application and
Fastening Schedule: Power-Driven, Mechanically Driven and Manually
Driven Fasteners 3280.304(b)(1)
IIT Research Institute
10 West 35th St., Chicago, IL 60616
J 6461, Development of Mobile Home Fire Test Methods to Judge the
Fire-Safe Performance of Foam Plastic Sheathing and Cavity Insulation
3280.207(a)(4)
International Association of Plumbing and Mechanical Officials
5032 Alhambra Ave., Los Angeles, CA 90032
IAPMO/PS-2-1983, Material and Property Standard for Cast Brass and
Tubing P-Traps 3280.604(a)
IAPMO/PS-4-1983, Material and Property Standard for Drains for
Prefabricated and Precast Showers 3280.604(a)
IAPMO/PS-5-1984, Material and Property Standard for Special Cast Iron
Fittings 3280.604(a)
IAPMO/PS-9-1984, Material and Property Standard for Diversion Tees
and Twin Waste Elbow 3280.604(a)
IAPMO/PS-14-1981, Material and Property Standard for Flexible Copper
Water Connectors 3280.604(a)
IAPMO/PS-23-1981, Material and Property Standard for Dishwasher Drain
Airgaps (Air Breaks) 3280.604(a)
IAPMO/PS-31-1977, Material and Property Standard for Backflow
Prevention Devices 3280.604(a)
IAPMO/TSC-9-1985, Standard for Gas Supply Connectors for Manufactured
Mobile Homes 3280.703
IAPMO/TSC-22-1985, Standard for Porcelain Enameled Formed Steel
Plumbing Fixtures 3280.604(a)
Military Specifications
Naval Publications Information Center, 5801 Tabor Rd., Philadelphia,
PA 19120
MIL-L-10547E-1975, Liners, Case, and Sheet, Overwrap; Water-Vapor
Proof or Waterproof, Flexible 3280.611(d)(5)
National Fire Protection Association
Batterymarch Park, Quincy, MA 02269
NFPA 31-1983, Installation of Oil Burning Equipment 3280.703;
3280.707(f)
NFPA 54-1984, National Fuel Gas Code 3280.703
NFPA 58-1983, Storage and Handling Liquefied Petroleum Gases
3280.703; 3280.704(b)(5)(i)
NFPA 70-1984, National Electrical Code 3280.801 (a) and (b);
3280.803(k)(1); 3280.803(k)(3); 3280.805(a)(3)(iv); 3280.806(a)(2);
3280.807(g); 3280.808(a); 3280.808(m); 3280.811(b)
NFPA-90B-1984, Warm Air Heating and Air Conditioning Systems 3280.703
National Forest Products Association
1619 Massachusetts Ave., NW., Washington, DC 20036
Span Tables for Joists and Rafters (PS 20-70) (N) FPA-1977
3280.304(b)(1)
National Design Specifications for Wood Construction With 1982
Supplement and 1984 Amendment (N) FPA-1982 3280.304(b)(1)
Wood Structural Design Data (N) FPA-1978 3280.304(b)(1)
Design Values for Joists and Rafters (N) FPA-1981 3280.304(b)(1)
National Particleboard Association
2306 Perkins Pl., Silver Spring, MD 20910
FTM-2-1983, Large Scale Test Method for Determining Formaldehyde
Emissions From Wood Products, Large Chamber Method 3280.406(b)
NPA-1-82, Standard for Particleboard for Mobile Home Decking
3280.304(b)(1)
National Sanitation Foundation
P.O. Box 1468, Ann Arbor, MI 48105
NSF-14-1984, Plastic Piping Components and Related Materials
3280.604(a)
NSF-24-1979, Plumbing System Components for Mobile Homes and
Recreational Vehicles 3280.604(a)
National Woodwork Manufacturers Association
205 W. Toughy Ave., Park Ridge, IL 60068
ANSI/NWMA I.S.1-80, With 1983 Addendum, Wood Flush Doors
3280.304(b)(1); 3280.405(c)(2)
ANSI/NWMA I.S. 2-80, With 1984 Addendum, Wood Window Units
3280.304(b)(1)
NWMA I.S. 3-83, Wood Sliding Patio Doors 3280.304(b)(1)
NWMA I.S. 4-81, Water Repellent Preservative Treatment for Millwork
3280.304(b)(1); 3280.405(c)(2)
National Bureau of Standards
Office of Engineering Standards, Room A-166, Technical Building,
Washington, DC. 20234
PS-1-1983, Construction and Industrial Plywood 3280.304(b)(1)
Society of Automotive Engineers
400 Commonwealth Drive, Warrendale, PA 15096
SAE-J533b, Flares for Tubing (1972) 3280.703; 3280.705(f)(1);
3280.705(f)(2)
Steel Joist Institute
1205 48 Avenue, N., Myrtle Beach, SC 29577
SJI-1986, Standard Specifications Load Tables and Weight Tables for
Steel Joists and Joist Girders 3280.304(b)(1)
Truss Plate Institute
100 W. Church St., Frederick, MD 21701
TPI-1985, Design Specifications for Metal Plate Connected Wood
Trusses 3280.304(b)(1)
Underwriters' Laboratories, Inc.
333 Pfingsten Rd., Northbrook, IL 60062
UL 94 Third Edition 1982 as amended through 1985, Tests for
Flammability of Plastic Materials for Parts in Devices and Appliances
3280.715(e)(1)
UL 103 -- Sixth Edition -- 1983, as amended through 1985, Chimneys,
Factory Built Residential Type and Building Heating Appliance 3280.703
UL 109 -- Fourth Edition -- 1978, Tube Fittings for Flammable and
Combustible Fluids and Refrigeration Service, and Marine Use 3280.703
UL 127 -- Fifth Edition -- 1983, as amended through 1985,
Factory-Built Fireplaces 3280.703
UL 174 -- Seventh Edition -- 1983, as amended through 1985, Household
Electric Storage Tank Water Heaters 3280.703
UL 181 -- Sixth Edition -- 1984, Factory Made Air Ducts and
Connectors 3280.703; 3280.715(e)
UL 217 -- Third Edition -- 1985, as amended through October 8, 1985,
Single and Multiple Station Smoke Detectors 3280.208(c)
UL 307A -- Fifth Edition -- 1978, Liquid Fuel-Burning Heating
Appliances for Mobile Homes and Recreational Vehicles 3280.703;
3280.707(f)
UL 307(B) -- First Edition -- 1982, as amended through April 12, 1982
Gas Burning Heating Appliances for Mobile Homes and Recreational
Vehicles 3280.703
UL 311 -- Fifth Edition -- 1976, as amended through 1984, Roof Jacks
for Mobile Homes and Recreational Vehicles 3280.703
UL 441 -- Fifth Edition -- 1979, Gas Vents 3280.703
UL 465 -- Seventh Edition -- 1984, Central Cooling Air Conditioners
3280.703
UL 559 -- Fourth Edition -- 1985, as amended through Sept. 6, 1985,
Heat Pumps 3280.703
UL 569 -- Fifth Edition -- 1980, as amended through 1985, Pigtails,
and Flexible Hose Connectors for LP-Gas 3280.703; 3280.705(l)(1)
UL 737 -- Fifth Edition -- 1982, as amended through Nov. 9, 1982,
Fireplace Stoves 3280.703
UL 1025 -- Second Edition -- 1982, as amended through 1985, Electric
Air Heaters 3280.703
UL 1042 -- Second Edition -- 1983, as amended through 1985, Electric
Baseboard Heating Equipment 3280.703
UL 1096 -- Third Edition -- 1981, as amended through 1984, Electric
Central Air Heating Equipment 3280.703
UL 1482 -- Second Edition -- 1983, Room Heaters, Solid-Fuel Type
3280.703
Chap.
24 CFR 4100.4 Table of CFR Titles and Chapters
24 CFR 4100.4 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)
24 CFR 4100.4 Title 2 -- (Reserved)
24 CFR 4100.4 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 Title 6 -- Economic Stabilization (Reserved)
24 CFR 4100.4 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)
24 CFR 4100.4 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
24 CFR 4100.4 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)
24 CFR 4100.4 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
24 CFR 4100.4 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
24 CFR 4100.4 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
24 CFR 4100.4 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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)
24 CFR 4100.4 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
24 CFR 4100.4 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
24 CFR 4100.4 24 CFR (4-1-92 Edition)
24 CFR 4100.4 List of CFR Sections Affected
24 CFR 4100.4 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.
24 CFR 4100.4 1986
24 CFR
51 FR
Page
Chapter XX
3282 Authority citation revised 34467
3282.151 -- 3282.156 (Subpart D) Heading revised (effective date
pending) 34467
3282.151 (d) and (e) revised (effective date pending) 34467
3282.152 Heading, (a), (b), (c) introductory text and (4), (f), and
(g)(1) revised; (g)(2) introductory text amended (effective date
pending) 34467
3282.153 Revised (effective date pending) 34468
3282.154 Revised (effective date pending) 34468
3282.206 Introductory text revised (effective date pending) 34468
3282.302 (b)(1) revised (effective date pending) 34468
3282.309 Heading and (a) revised (effective date pending) 34468
3282.355 (d) revised (effective date pending) 34468
3282.356 (a) revised (effective date pending) 34468
3282.407 (b) heading, (2), and (3) revised (effective date pending)
34468
(b)(2) correctly revised 37568
24 CFR 4100.4 1987
24 CFR
52 FR
Page
Chapter XX
3280.4 (b) revised; eff. 8-11-87 4580
Amended (effective date pending) 47553
3280.7 Revised; eff. 8-11-87 4581
3280.8 (c) revised; eff. 8-11-87 4581
Amended (effective date pending) 47553
3280.106 Heading and (a) revised; eff. 8-11-87 4581
3280.114 (b) revised; eff. 8-11-87 4581
3280.203 (a) revised; eff. 8-11-87 4581
(a) paranthetical phrase, (1), and (2) added (effective date pending)
47553
3280.208 (c) revised; eff. 8-11-87 4581
3280.304 (b)(1) revised; eff. 8-11-87 4581
3280.305 (g)(4) and (i)(1)(i) revised; eff. 8-11-87 4582
3280.306 (g)(2) revised; eff. 8-11-87 4583
3280.403 Revised; eff. 8-11-87 4583
(e)(2) revised 35543
3280.404 Revised; eff. 8-11-87 4583
3280.405 (b), (c), (d), and (e) revised; eff. 8-11-87 4583
(e)(2) revised 35543
3280.508 Revised; eff. 8-11-87 4584
3280.511 (a)(1) and (b) revised; eff. 8-11-87 4584
(a)(1) amended (effective date pending) 47553
3280.602 (a) (23), (24) and (43) through (50) revised; eff. 8-11-87
4584
(a)(49) amended (effective date pending) 47553
3280.604 (a) table revised; eff. 8-11-87 4584
3280.607 (b)(3)(iii) revised; eff. 8-11-87 4586
3280.609 (b)(1) revised; eff. 8-11-87 4586
3280.610 (c)(1) revised; eff. 8-11-87 4586
3280.611 (d)(5) revised; eff. 8-11-87 4586
(d)(5) amended (effective date pending) 47553
3280.702 (a)(17) revised; eff. 8-11-87 4586
3280.703 Revised; eff. 8-11-87 4586
3280.704 (b)(5)(i) revised; eff. 8-11-87 4587
3280.705 (b) (1), (3), and (4), (e), (f), (j) and (l)(1) revised;
eff. 8-11-87 4587
(l)(1) amended (effective date pending) 47553
3280.706 (b) (1), (2), and (3), and (d) revised; eff. 8-11-87 4588
(b)(4) amended (effective date pending) 47553
3280.707 (a)(2), (d) and (f) introductory text revised; eff.
8-11-87 4588
(d)(2) table added (effective date pending) 47553
3280.714 (a) (1) and (2) revised; eff. 8-11-87 4588
3280.715 (e) introductory text and (1) revised; eff. 8-11-87 4589
3280.801 (a) and (b) revised; eff. 8-11-87 4589
3280.803 (h) through (k) revised; eff. 8-11-87 4589
(k)(3) (ii) and (iii) amended (effective date pending) 47553
3280.804 (d) revised; eff. 8-11-87 4589
3280.805 (a)(3)(iv) revised; eff. 8-11-87 4589
3280.806 (a)(2) revised; eff. 8-11-87 4589
(a)(2) amended (effective date pending) 47553
3280.807 (g) added 35543
3280.808 (a) and (m) revised; eff. 8-11-87 4589
3280.811 (b) introductory text revised; eff. 8-11-87 4590
3282.151 -- 3282.156 (Subpart D) Heading revision at 51 FR 34467 eff.
3-2-87 3795
3282.151 (d), (e); revision at 51 FR 34467 eff. 3-2-87 3795
3282.152 Heading, (a), (b), (c) introductory text and (4), (f) and
(g)(1) revision and (g)(2) introductory text amendment at 51 FR 34467
eff. 3-2-87 3795
3282.153 Revision at 51 FR 34468 eff. 3-2-87 3795
3282.154 Revision at 51 FR 34468 eff. 3-2-87 3795
3282.206 Introductory text revision at 51 FR 34468 eff. 3-2-87 3795
3282.302 (b)(1) revision at 51 FR 34468 eff. 3-2-87 3795
3282.309 Heading and (a) revision at 51 FR 34468 eff. 3-2-87 3795
3282.355 (d) revision at 51 FR 34468 eff. 3-2-87 3795
3282.356 (a) revision at 51 FR 34468 eff. 3-2-87 3795
3282.407 (b) heading, (2), and (3) revision at 51 FR 34468 eff.
3-2-87 3795
3283.102 (c) and (d) revised 11644
24 CFR 4100.4 1988
24 CFR
53 FR
Page
Chapter XII
2002 Authority citation revised 37550
2002.3 (c) revised (effective date pending) 37550
(b) amended (effective date pending) 37552
2002.7 Revised (effective date pending) 37550
2002.9 Redesignated as 2002.17 (effective date pending) 37550
Added (effective date pending) 37551
2002.11 Redesignated as 2002.19 (effective date pending) 37550
Added (effective date pending) 37551
2002.13 Redesignated as 2002.21 (effective date pending) 37550
Added (effective date pending) 37552
2002.15 Redesignated as 2002.23 (effective date pending) 37550
Added (effective date pending) 37552
2002.17 Redesignated as 2002.25; new 2002.17 redesignated from
2002.9 (effective date pending) 37550
(c) amended (effective date pending) 37552
2002.19 Redesignated from 2002.11 (effective date pending) 37550
2002.21 Redesignated from 2002.13 (effective date pending) 37550
Nomenclature changes (effective date pending) 37552
2002.23 Redesignated from 2002.15 (effective date pending) 37550
2002.25 Redesignated from 2002.17 (effective date pending) 37550
Nomenclature changes (effective date pending) 37552
Chapter XX
3280.4 Amendment eff. 3-4-88 6601
3280.8 Amendment at 52 FR 47553 eff. 3-4-88 6601
3280.203 Additions at 52 FR 47553 eff. 3-4-88 6601
3280.511 Amendment at 52 FR 47553 eff. 3-4-88 6601
3280.602 Amendment at 52 FR 47553 eff. 3-4-88 6601
3280.605 (a)(3) revised 23611
3280.609 (d)(3) revised 23611
3280.611 Amendment at 52 FR 47553 eff. 3-4-88 6601
3280.705 Amendment at 52 FR 47553 eff. 3-4-88 6601
3280.706 Amendment at 52 FR 47553 eff. 3-4-88 6601
3280.707 Addition at 52 FR 47553 eff. 3-4-88 6601
3280.803 Amendment at 52 FR 47553 eff. 3-4-88 6601
3280.806 Amendment at 52 FR 47553 eff. 3-4-88 6601
Chapter XXV
4100 Authority citation revised 50953
4100.4 (a) and (c)(1) amended; (d) revised 50953
24 CFR 4100.4 1989
24 CFR
54 FR
Page
Chapter X
1710 Authority citation revised 40866
1710.1 Amended (effective date pending) 40866
Regulation at 54 FR 40866 eff. 11-13-89 47768
1710.4 (d) revised (effective date pending) 40866
Regulation at 54 FR 40866 eff. 11-13-89 47768
1710.15 Added (effective date pending) 40866
Regulation at 54 FR 40866 eff. 11-13-89 47768
1720 Authority citation revised 47768
1720.238 Heading, introductory text, (a), and (d) revised (effective
date pending) 40868
Regulation at 54 FR 40868 eff. 11-13-89 47768
1720.239 Heading, (a), and (c) revised (effective date pending) 40868
Regulation at 54 FR 40868 eff. 11-13-89 47768
Chapter XII
2002.3 Eff. 3-3-89 8321
2002.7 Eff. 3-3-89 8321
2002.9 Eff. 3-3-89 8321
2002.11 Eff. 3-3-89 8321
2002.13 Eff. 3-3-89 8321
2002.15 Eff. 3-3-89 8321
2002.17 Eff. 3-3-89 8321
2002.19 Eff. 3-3-89 8321
2002.21 Eff. 3-3-89 8321
2002.23 Eff. 3-3-89 8321
2002.25 Eff. 3-3-89 8321
Chapter XV
2700.10 (a) nomenclature change 39525
Chapter XX
3280.309 (d) revised 46049
3282 Inspection fees 1689
Chapter XXV
4100 Nomenclature change 13062
4100.1 (b) introductory text reivsed; (b) (2) and (3) redesignated
as (b) (3) and (6); new (b)(2) added; new (b)(3) amended 13061
(b) (4) and (5) added 13062
4100.2 (a)(1) revised 13062
4100.3 Amended 13062
24 CFR 4100.4 1990
24 CFR 4100.4 1991
24 CFR
56 FR
Page
Chapter XX
3282.11 (d) removed; (e) redesignated as (d) 65186
3282.307 (b) revised; (c) through (f) added 65186
3282.454 Removed 65186
3500.21 Added; interim 19508
(b)(2) and (e)(1)(i) corrected 22910
24 CFR 4100.4 1992
24 CFR
57 FR
Page
Chapter XII
2000.1 (a) and (b) revised 2226
2000.2 (a)(3) revised 2226
2000.3 (a)(4) through (8) redesignated as (a)(6) through (10); new
(a)(4), (5), (b)(8) and (9) added; new (a)(8) revised 2226
2000.4 Revised 2226
2000.5 Revised 2227
2000.6 (b) amended; (d) revised 2227
2000.9 Revised 2227
2002 Authority citation revised 2227
2002.1 (a) and (c) amended 2227
2002.3 (a) amended 2227
2002.17 (e) amended 2227
2002.21 Revised 2228
2004 Authority citation revised 2228
2004.1 Revised 2228
2004.2 Added 2228
2004.3 Revised 2228
2004.7 Amended 2229
Chapter XX
3280 Interpretative bulletin 3941
24
Housing and Urban Development
PARTS 1700 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
24 CFR 4100.4 Table of Contents
Page
Explanation v
Title 24:
Subtitle B -- Regulations relating to Housing and Urban Development
(Continued):
Chapter X -- Office of Assistant Secretary for Housing -- Federal
Housing Commissioner, Department of Housing and Urban Development
(Interstate Land Sales Registration Program)
Chapter XI -- Solar Energy and Energy Conservation Bank, Department
of Housing and Urban Development
Chapter XII -- Office of Inspector General, Department of Housing and
Urban Development
Chapter XV -- Mortgage Insurance and Loan Programs under the
Emergency Homeowners' Relief Act, Department of Housing and Urban
Development
Chapter XX -- Office of Assistant Secretary for Housing -- Federal
Housing Commissioner, Department of Housing and Urban Development
Chapter XXV -- Neighborhood Reinvestment Corporation
Finding Aids:
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
24 CFR 4100.4 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.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on
which approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you
find the material is not available, please notify the Director of the
Federal Register, National Archives and Records Administration,
Washington DC 20408, or call (202) 523-4534.
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.
24 CFR 4100.4 THIS TITLE
Title 24 -- Housing and Urban Development is composed of five
volumes. The first four volumes containing parts 0-199, parts 200-499,
parts 500-699, parts 700-1699, represent the regulations of the
Department of Housing and Urban Development. The fifth volume,
containing part 1700 to end continues with regulations of the Department
of Housing and Urban Development and also includes regulations of the
Neighborhood Reinvestment Corporation. The contents of these volumes
represent all current regulations codified under this title of the CFR
as of April 1, 1992.
For this volume, Ann Worley was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Richard L.
Claypoole, assisted by Alomha S. Morris.
25 CFR 0.0 25 CFR Ch. I (4-1-92 Edition)
25 CFR 0.0 Bureau of Indian Affairs, Interior
25 CFR 0.0 Title 25 -- Indians
Part
chapter i -- Bureau of Indian Affairs, Department of the Interior 1
chapter ii -- Indian Arts and Crafts Board, Department of the
Interior 301
chapter iii -- National Indian Gaming Commission
chapter iv -- The Office of Navajo and Hopi Indian Relocation 700
Cross References: Regulations pertaining to migratory birds,
applicable to Indians living on reservations: See Wildlife and
Fisheries, 50 CFR chapter I.
Bureau of Land Management regulations pertaining to Indians: See
Bureau of Land Management, 43 CFR part 2530.
Public Health regulations pertaining to contracts and health: See
Public Health, 42 CFR chapter I.
Note: Other regulations issued by the Department of the Interior
appear in title 30, chapters II, III, IV, VI, VII; title 36, chapter I;
title 41, chapter 114; title 48, chapter 14; title 43; and title 50,
chapters I and IV, Code of Federal Regulations.
25 CFR 0.0 25 CFR Ch. I (4-1-92 Edition)
25 CFR 0.0 Bureau of Indian Affairs, Interior
25 CFR 0.0 CHAPTER I -- BUREAU OF INDIAN
25 CFR 0.0 AFFAIRS, DEPARTMENT OF THE
25 CFR 0.0 INTERIOR
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER A -- PROCEDURES AND PRACTICE
Part
Page
1 Applicability of rules of the Bureau of Indian Affairs
2 Appeals from administrative actions
5 Preference in employment
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER B -- LAW AND ORDER
11 Law and order on Indian reservations
13 Tribal reassumption of jurisdiction over child custody proceedings
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER C -- PROBATE
15 Determination of heirs and approval of wills, except as to members
of the Five Civilized Tribes and Osage Indians
16 Estates of Indians of the Five Civilized Tribes
17 Action on wills of Osage Indians
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER D -- HUMAN SERVICES
20 Financial assistance and social services program
21 Arrangement with States, Territories, or other agencies for relief
of distress and social welfare of Indians
23 Indian Child Welfare Act
26 Employment assistance for adult Indians
27 Vocational training for adult Indians
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER E -- EDUCATION
31 Federal schools for Indians
32 Indian education policies
33 Transfer of Indian education functions
36 Minimum academic standards for the basic education of Indian
children and national criteria for dormitory situations
38 Education personnel
39 The Indian school equalization program
40 Administration of educational loans, grants and other assistance
for higher education
41 Grants to tribally controlled community colleges and Navajo
Community College
42 Student rights and due process procedures
43 Maintenance and control of student records in Bureau schools
45 Special education
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER F -- TRIBAL GOVERNMENT
61 Preparation of rolls of Indians
62 Enrollment appeals
65 Preparation of a membership roll of Delaware Indians of Western
Oklahoma
66 Preparation of rolls of Delaware Indians
75 Revision of the membership roll of the Eastern Band of Cherokee
Indians, North Carolina
76 Enrollment of Indians of the San Pasqual Band of Mission Indians
in California
81 Tribal reorganization under a Federal statute
82 Petitioning procedures for tribes reorganized under Federal
statute and other organized tribes
83 Procedures for establishing that an American Indian group exists
as an Indian tribe
87 Use or distribution of Indian judgment funds
88 Recognition of attorneys and agents to represent claimants
89 Attorney contracts with Indian tribes
90 Election of officers of the Osage Tribe
91 Government of Indian villages, Osage Reservation, Oklahoma
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER G -- FINANCIAL ACTIVITIES
101 Loans to Indians from the Revolving Loan Fund
103 Loan guaranty, insurance, and interest subsidy
111 Annuity and other per capita payments
112 Regulations for pro rata shares of tribal funds
113 Indian Moneys, Proceeds of Labor (IMPL)
114 Special deposits
115 Individual Indian money accounts
116 Creation of trusts for restricted property of Indians, Five
Civilized Tribes, Oklahoma
117 Deposit and expenditure of individual funds of members of the
Osage Tribe of Indians who do not have certificates of competency
121 Distribution of judgment funds awarded to the Osage Tribe of
Indians in Oklahoma
122 Management of Osage judgment funds for education
123 Alaska Native Fund
124 Procedures for depositing funds to the credit of 14X6140-deposits
of proceeds of lands withdrawn for native selection, BIA
125 Payment of Sioux benefits
134 Partial payment construction charges on Indian irrigation
projects
135 Construction assessments, Crow Indian irrigation project
136 Fort Hall Indian irrigation project, Idaho
137 Reimbursement of construction costs, San Carlos Indian irrigation
project, Arizona
138 Reimbursement of construction costs, Ahtanum Unit, Wapato Indian
irrigation project, Washington
139 Reimbursement of construction costs Wapato-Satus Unit, Wapato
Indian irrigation project, Washington
140 Licensed Indian traders
141 Business practices on the Navajo, Hopi and Zuni Reservations
142 Operation of U.S.M.S. ''North Star'' between Seattle, Wash., and
stations of the Bureau of Indian Affairs and other Government agencies,
Alaska
143 Charges for goods and services provided to non-federal users
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER H -- LAND AND WATER
150 Land records and title documents
151 Land acquisitions
152 Issuance of patents in fee, certificates of competency, removal
of restrictions, and sale of certain Indian lands
153 Determination of competency: Crow Indians
154 Osage roll, certificate of competency
156 Reallotment of lands to unallotted Indian children
158 Osage lands
159 Sale of irrigable lands, special water contract requirements
160 Inclusion of liens in all patents and instruments executed
162 Leasing and permitting
163 General forest regulations
164 Sale of lumber and other forest products produced by Indian
enterprises from the forests on Indian reservations
165 Sale of forest products, Red Lake Indian Reservation, Minn
166 General grazing regulations
167 Navajo grazing regulations
168 Grazing regulations for the Hopi Partitioned Lands area
169 Rights-of-way over Indian lands
170 Roads of the Bureau of Indian Affairs
171 Operation and maintenance
172 Pueblo Indian lands benefited by irrigation and drainage works of
Middle Rio Grande Conservancy District, New Mexico
173 Concessions, permits and leases on lands withdrawn or acquired in
connection with Indian irrigation projects
175 Indian electric power utilities
178 Resale of lands within the Badlands Air Force Gunnery Range (Pine
Ridge Aerial Gunnery Range)
179 Life Estates and Future Interests
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER I -- ENERGY AND MINERALS
200 Terms and conditions: Coal leases
211 Leasing of tribal lands for mining
212 Leasing of allotted lands for mining
213 Leasing of restricted lands of members of Five Civilized Tribes,
Oklahoma, for mining
214 Leasing of Osage Reservation lands, Oklahoma, for mining, except
oil and gas
215 Lead and zinc mining operations and leases, Quapaw Agency
216 Surface exploration, mining, and reclamation of lands
217 Management of tribal assets of Ute Indian tribe, Uintah and Ouray
reservation, Utah, by the tribe and the Ute Distribution Corp.
226 Leasing of Osage Reservation lands for oil and gas mining
227 Leasing of certain lands in Wind River Indian Reservation,
Wyoming, for oil and gas mining
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER J -- FISH AND WILDLIFE
241 Indian fishing in Alaska
242 Commercial fishing on Red Lake Indian Reservation
243 Reindeer in Alaska
248 Use of Columbia River Indian in-lieu fishing sites
249 Off-reservation treaty fishing
250 Indian fishing -- Hoopa Valley Indian Reservation
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER K -- HOUSING
256 Housing Improvement Program
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER L -- HERITAGE PRESERVATION
261 Preservation of antiquities
265 Establishment of roadless and wild areas on Indian reservations
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER M -- INDIAN SELF-DETERMINATION AND EDUCATION
ASSISTANCE ACT PROGRAM
271 Contracts under Indian Self-Determination Act
272 Grants under Indian Self-Determination Act
273 Education contracts under Johnson-O'Malley Act
274 School construction contracts or services for tribally operated
previously private schools
275 Staffing
276 Uniform administrative requirements for grants
277 School construction contracts for public schools
278 Special grants for economic development and core management
grants to small tribes
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER N -- ECONOMIC ENTERPRISES
286 Indian Business Development Program
25 CFR 0.0
25 CFR 0.0 SUBCHAPTER O -- MISCELLANEOUS (RESERVED)
Appendix to Chapter I -- Extension of the Trust or Restricted Status
of Certain Indian Lands
25 CFR 0.0
25 CFR 0.0 25 CFR Ch. I (4-1-92 Edition)
25 CFR 0.0 Bureau of Indian Affairs, Interior
25 CFR 0.0 SUBCHAPTER A -- PROCEDURES AND PRACTICE
25 CFR 0.0 PART 1 -- APPLICABILITY OF RULES OF THE BUREAU OF INDIAN
AFFAIRS
Sec.
1.1 (Reserved)
1.2 Applicability of regulations and reserved authority of the
Secretary of the Interior.
1.3 Scope.
1.4 State and local regulation of the use of Indian property.
1.10 Availability of forms.
Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2.
1.1 (Reserved)
25 CFR 1.2 Applicability of regulations and reserved authority of the
Secretary of the Interior.
The regulations in chapter I of title 25 of the Code of Federal
Regulations are of general application. Notwithstanding any limitations
contained in the regulations of this Chapter, the Secretary retains the
power to waive or make exceptions to his regulations as found in chapter
I of title 25 CFR in all cases where permitted by law and the Secretary
finds that such waiver or exception is in the best interest of the
Indians.
(25 FR 3124, Apr. 12, 1960)
25 CFR 1.3 Scope.
Chapters I and II of this title contain the bulk of the regulations
of the Department of the Interior of general application relating to
Indian affairs. Subtitle B, chapter I, title 43 of the Code or Federal
Regulations contains rules relating to the relationship of Indians to
public lands and townsites. Subtitle A of title 43 CFR has application
to certain aspects of Indian affairs and, among other things, contains
procedural rules for appellate and other administrative review and for
practice before the Department of the Interior, of which the Bureau of
Indian Affairs is a part. Indian health matters are covered in 42 CFR
part 36. Title 30 CFR contains regulations on oil and gas and other
mining operations, which, under certain circumstances, may be applicable
to Indian resources.
(25 FR 3124, Apr. 12, 1960, as amended at 40 FR 20625, May 12, 1975;
48 FR 13414, Mar. 31, 1983)
25 CFR 1.4 State and local regulation of the use of Indian property.
(a) Except as provided in paragraph (b) of this section, none of the
laws, ordinances, codes, resolutions, rules or other regulations of any
State or political subdivision thereof limiting, zoning or otherwise
governing, regulating, or controlling the use or development of any real
or personal property, including water rights, shall be applicable to any
such property leased from or held or used under agreement with and
belonging to any Indian or Indian tribe, band, or community that is held
in trust by the United States or is subject to a restriction against
alienation imposed by the United States.
(b) The Secretary of the Interior or his authorized representative
may in specific cases or in specific geographic areas adopt or make
applicable to Indian lands all or any part of such laws, ordinances,
codes, resolutions, rules or other regulations referred to in paragraph
(a) of this section as he shall determine to be in the best interest of
the Indian owner or owners in achieving the highest and best use of such
property. In determining whether, or to what extent, such laws,
ordinances, codes, resolutions, rules or other regulations shall be
adopted or made applicable, the Secretary or his authorized
representative may consult with the Indian owner or owners and may
consider the use of, and restrictions or limitations on the use of,
other property in the vicinity, and such other factors as he shall deem
appropriate.
(30 FR 7520, June 9, 1965)
25 CFR 1.10 Availability of forms.
Forms upon which applications and related documents may be filed and
upon which rights and privileges may be granted may be inspected and
procured at the Bureau of Indian Affairs, Washington, DC, and at the
office of any Area Director or Agency Superintendent.
(25 FR 3124, Apr. 12, 1960)
25 CFR 1.10 PART 2 -- APPEALS FROM ADMINISTRATIVE ACTIONS
Sec.
2.1 Information collection.
2.2 Definitions.
2.3 Applicability.
2.4 Officials who may decide appeals.
2.5 Appeal bond.
2.6 Finality of decisions.
2.7 Notice of administrative decision or action.
2.8 Appeal from inaction of official.
2.9 Notice of an appeal.
2.10 Statement of reasons.
2.11 Answer of interested party.
2.12 Service of appeal documents.
2.13 Filing documents.
2.14 Record address.
2.15 Computation of time.
2.16 Extensions of time.
2.17 Summary dismissal.
2.18 Consolidation of appeals.
2.19 Action by Area Directors and Education Programs officials on
appeal.
2.20 Action by the Assistant Secretary -- Indian Affairs on appeal.
2.21 Scope of review.
Authority: R.S. 463, 465; 5 U.S.C. 301, 25 U.S.C. 2, 9.
Source: 54 FR 6480, Feb. 10, 1989, unless otherwise noted.
25 CFR 2.1 Information collection.
In accordance with Office of Management and Budget regulations in 5
CFR 1320.3(c), approval of information collections contained in this
regulation is not required.
25 CFR 2.2 Definitions.
Appeal means a written request for review of an action or the
inaction of an official of the Bureau of Indian Affairs that is claimed
to adversely affect the interested party making the request.
Appellant means any interested party who files an appeal under this
part.
Interested party means any person whose interests could be adversely
affected by a decision in an appeal.
Legal holiday means a Federal holiday as designated by the President
or the Congress of the United States.
Notice of appeal means the written document sent to the official
designated in this part, indicating that a decision is being appealed
(see 2.9).
Person includes any Indian or non-Indian individual, corporation,
tribe or other organization.
Statement of reasons means a written document submitted by the
appellant explaining why the decision being appealed is in error (see
2.10).
(54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989)
25 CFR 2.3 Applicability.
(a) Except as provided in paragraph (b) of this section, this part
applies to all appeals from decisions made by officials of the Bureau of
Indian Affairs by persons who may be adversely affected by such
decisions.
(b) This part does not apply if any other regulation or Federal
statute provides a different administrative appeal procedure applicable
to a specific type of decision.
25 CFR 2.4 Officials who may decide appeals.
The following officials may decide appeals:
(a) An Area Director, if the subject of appeal is a decision by a
person under the authority of that Area Director.
(b) An Area Education Programs Administrator, Agency Superintendent
for Education, President of a Post-Secondary School, or the Deputy to
the Assistant Secretary -- Indian Affairs/Director (Indian Education
Programs), if the appeal is from a decision by an Office of Indian
Education Programs (OIEP) official under his/her jurisdiction.
(c) The Assistant Secretary -- Indian Affairs pursuant to the
provisions of 2.20 of this part.
(d) A Deputy to the Assistant Secretary -- Indian Affairs pursuant to
the provisions of 2.20(c) of this part.
(e) The Interior Board of Indian Appeals, pursuant to the provisions
of 43 CFR part 4, subpart D, if the appeal is from a decision made by an
Area Director or a Deputy to the Assistant Secretary -- Indian Affairs
other than the Deputy to the Assistant Secretary -- Indian
Affairs/Director (Indian Education Programs).
25 CFR 2.5 Appeal bond.
(a) If a person believes that he/she may suffer a measurable and
substantial financial loss as a direct result of the delay caused by an
appeal, that person may request that the official before whom the appeal
is pending require the posting of a reasonable bond by the appellant
adequate to protect against that financial loss.
(b) A person requesting that a bond be posted bears the burden of
proving the likelihood that he/she may suffer a measurable and
substantial financial loss as a direct result of the delay caused by the
appeal.
(c) In those cases in which the official before whom an appeal is
pending determines that a bond is necessary to protect the financial
interests of an Indian or Indian tribe, that official may require the
posting of a bond on his/her own initiative.
(d) Where the official before whom an appeal is pending requires a
bond to be posted or denies a request that a bond be posted, he/she
shall give notice of his/her decision pursuant to 2.7.
25 CFR 2.6 Finality of decisions.
(a) No decision, which at the time of its rendition is subject to
appeal to a superior authority in the Department, shall be considered
final so as to constitute Departmental action subject to judicial review
under 5 U.S.C. 704, unless when an appeal is filed, the official to whom
the appeal is made determines that public safety, protection of trust
resources, or other public exigency requires that the decision be made
effective immediately.
(b) Decisions made by officials of the Bureau of Indian Affairs shall
be effective when the time for filing a notice of appeal has expired and
no notice of appeal has been filed.
(c) Decisions made by the Assistant Secretary -- Indian Affairs shall
be final for the Department and effective immediately unless the
Assistant Secretary -- Indian Affairs provides otherwise in the
decision.
(54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989)
25 CFR 2.7 Notice of administrative decision or action.
(a) The official making a decision shall give all interested parties
known to the decisionmaker written notice of the decision by personal
delivery or mail.
(b) Failure to give such notice shall not affect the validity of the
decision or action but the time to file a notice of appeal regarding
such a decision shall not begin to run until notice has been given in
accordance with paragraph (c) of this section.
(c) All written decisions, except decisions which are final for the
Department pursuant to 2.6(c), shall include a statement that the
decision may be appealed pursuant to this part, identify the official to
whom it may be appealed and indicate the appeal procedures, including
the 30-day time limit for filing a notice of appeal.
(54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989)
25 CFR 2.8 Appeal from inaction of official.
(a) A person or persons whose interests are adversely affected, or
whose ability to protect such interests is impeded by the failure of an
official to act on a request to the official, can make the official's
inaction the subject of appeal, as follows:
(1) Request in writing that the official take the action originally
asked of him/her;
(2) Describe the interest adversely affected by the official's
inaction, including a description of the loss, impairment or impediment
of such interest caused by the official's inaction;
(3) State that, unless the official involved either takes action on
the merits of the written request within 10 days of receipt of such
request by the official, or establishes a date by which action will be
taken, an appeal shall be filed in accordance with this part.
(b) The official receiving a request as specified in paragraph (a) of
this section must either make a decision on the merits of the initial
request within 10 days from receipt of the request for a decision or
establish a reasonable later date by which the decision shall be made,
not to exceed 60 days from the date of request. If an official
establishes a date by which a requested decision shall be made, this
date shall be the date by which failure to make a decision shall be
appealable under this part. If the official, within the 10-day period
specified in paragraph (a) of this section, neither makes a decision on
the merits of the initial request nor establishes a later date by which
a decision shall be made, the official's inaction shall be appealable to
the next official in the process established in this part.
(54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989)
25 CFR 2.9 Notice of an appeal.
(a) An appellant must file a written notice of appeal in the office
of the official whose decision is being appealed. The appellant must
also send a copy of the notice of appeal to the official who will decide
the appeal and to all known interested parties. The notice of appeal
must be filed in the office of the official whose decision is being
appealed within 30 days of receipt by the appellant of the notice of
administrative action described in 2.7. A notice of appeal that is
filed by mail is considered filed on the date that it is postmarked.
The burden of proof of timely filing is on the appellant. No extension
of time shall be granted for filing a notice of appeal. Notices of
appeal not filed in the specified time shall not be considered, and the
decision involved shall be considered final for the Department and
effective in accordance with 2.6(b).
(b) When the appellant is an Indian or Indian tribe not represented
by counsel, the official who issued the decision appealed shall, upon
request of the appellant, render such assistance as is appropriate in
the preparation of the appeal.
(c) The notice of appeal shall:
(1) Include name, address, and phone number of appellant.
(2) Be clearly labeled or titled with the words ''NOTICE OF APPEAL.''
(3) Have on the face of any envelope in which the notice is mailed or
delivered, in addition to the address, the clearly visible words
''NOTICE OF APPEAL.''
(4) Contain a statement of the decision being appealed that is
sufficient to permit identification of the decision.
(5) If possible, attach either a copy of the notice of the
administrative decision recieved under 2.7, or when an official has
failed to make a decision or take any action, attach a copy of the
appellant's request for a decision or action under 2.8 with a written
statement that the official failed to make a decision or take any action
or to establish a date by which a decision would be made upon the
request.
(6) Certify that copies of the notice of appeal have been served on
interested parties, as prescribed in 2.12(a).
25 CFR 2.10 Statement of reasons.
(a) A statement of reasons shall be filed by the appellant in every
appeal, and shall be accompanied by or otherwise incorporate all
supporting documents.
(b) The statement of reasons may be included in or filed with the
notice of appeal.
(c) If the statement of reasons is not filed with the notice of
appeal, the appellant shall file a separate statement of reasons in the
office of the official whose decision is being appealed within 30 days
after the notice of appeal was filed in that office.
(d) The statement of reasons whether filed with the notice of appeal
or filed separately should:
(1) Be clearly labeled ''STATEMENT OF REASONS''.
(2) Have on the face of any envelope in which the statement of
reasons is mailed or delivered, in addition to the address, the clearly
visible words ''STATEMENT OF REASONS''.
(54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989)
25 CFR 2.11 Answer of interested party.
(a) Any interested party wishing to participate in an appeal
proceeding should file a written answer responding to the appellant's
notice of appeal and statement of reasons. An answer should describe
the party's interest.
(b) An answer shall state the party's position or response to the
appeal in any manner the party deems appropriate and may be accompanied
by or otherwise incorporate supporting documents.
(c) An answer must be filed within 30 days after receipt of the
statement of reasons by the person filing an answer.
(d) An answer and any supporting documents shall be filed in the
office of the official before whom the appeal is pending as specified in
2.13.
(e) An answer should:
(1) Be clearly labelled or titled with the words ''ANSWER OF
INTERESTED PARTY.''
(2) Have on the face of any envelope in which the answer is mailed or
delivered, in addition to the address, the clearly visible words
''ANSWER OF INTERESTED PARTY,'' and
(3) Contain a statement of the decision being appealed that is
sufficient to permit identification of the decision.
25 CFR 2.12 Service of appeal documents.
(a) Persons filing documents in an appeal must serve copies of those
documents on all other interested parties known to the person making the
filing. A person serving a document either by mail or personal delivery
must, at the time of filing the document, also file a written statement
certifying service on each interested party, showing the document
involved, the name and address of the party served, and the date of
service.
(b) If an appeal is filed with the Interior Board of Indian Appeals,
a copy of the notice of appeal shall also be sent to the Assistant
Secretary -- Indian Affairs. The notice of appeal sent to the Interior
Board of Indian Appeals shall certify that a copy has been sent to the
Assistant Secretary -- Indian Affairs.
(c) If the appellant is an Indian or Indian tribe not represented by
counsel, the official with whom the appeal is filed (i.e., official
making the decision being appealed) shall, in the manner prescribed in
this section, personally or by mail serve a copy of all appeal documents
on the official who will decide the appeal and on each interested party
known to the official making such service.
(d) Service of any document under this part shall be by personal
delivery or by mail to the record address as specified in 2.14.
Service on a tribe shall be to the principal or designated tribal
official or to the governing body.
(e) In all cases where a party is represented by an attorney in an
appeal, service of any document on the attorney is service on the party
represented. Where a party is represented by more than one attorney,
service on any one attorney is sufficient. The certificate of service
on an attorney shall include the name of the party whom the attorney
represents and indicate that service was made on the attorney
representing that party.
(f) When an official deciding an appeal determines that there has not
been service of a document affecting a person's interest, the official
shall either serve the document on the person or direct the appropriate
legal counsel to serve the document on the person and allow the person
an opportunity to respond.
(54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989)
25 CFR 2.13 Filing documents.
(a) An appeal document is properly filed with an official of the
Bureau of Indian Affairs:
(1) By personal delivery during regular business hours to the person
designated to receive mail in the immediate office of the official, or
(2) By mail to the facility officially designated for receipt of mail
addressed to the official; the document is considered filed by mail on
the date that it is postmarked.
(b) Bureau of Indian Affairs offices receiving a misdirected appeal
document shall forward the document to the proper office promptly. If a
person delivers an appeal document to the wrong office or mails an
appeal document to an incorrect address, no extension of time should be
allowed because of the time necessary for a Bureau office to redirect
the document to the correct address.
(c) Notwithstanding any other provision of this section, an official
deciding an appeal shall allow late filing of a misdirected document,
including a notice of appeal, where the official finds that the
misdirection is the fault of the government.
25 CFR 2.14 Record address.
(a) Every interested party who files a document in connection with an
appeal shall, when he/she files the document, also indicate his/her
address. Thereafter, any change of address shall be promptly reported
to the official with whom the previous address was filed. The most
current address on file under this subsection shall be deemed the proper
address for all purposes under this part.
(b) The successors in interest of a party shall also promptly inform
the official specified in paragraph (a) of this section of their
interest in the appeal and their address.
(c) An appellant or interested party failing to file an address or
change of address as specified in this section may not object to lack of
notice or service attributable to his/her failure to indicate a new
address.
25 CFR 2.15 Computation of time.
In computing any period of time prescribed or allowed in this part,
calendar days shall be used. Computation shall not include the day on
which a decision being appealed was made, service or notice was
received, a document was filed, or other event occurred causing time to
begin to run. Computation shall include the last day of the period,
unless it is a Saturday, a Sunday, or a legal holiday, in which event
the period runs until the end of the next day which is not a Saturday, a
Sunday, or a legal holiday.
25 CFR 2.16 Extensions of time.
An official to whom an appeal is made may, upon a showing of good
cause by a party and with notice to all other parties, extend the period
for filing or serving any document; provided, however, that no
extension will be granted for filing a notice of appeal under 2.9 of
this part or serve by itself to extend any period specified by law or
regulation other than in this part.
25 CFR 2.17 Summary dismissal.
(a) An appeal under this part will be dismissed if the notice of
appeal is not filed within the time specified in 2.9(a).
(b) An appeal under this part may be subject to summary dismissal for
the following causes:
(1) If after the appellant is given an opportunity to amend them, the
appeal documents do not state the reasons why the appellant believes the
decision being appealed is in error, or the reasons for the appeal are
not otherwise evident in the documents, or
(2) If the appellant has been required to post a bond and fails to do
so.
25 CFR 2.18 Consolidation of appeals.
Separate proceedings pending before one official under this part and
involving common questions of law or fact may be consolidated by the
official conducting such proceedings, pursuant to a motion by any party
or on the initiative of the official.
25 CFR 2.19 Action by Area Directors and Education Programs officials
on appeal.
(a) Area Directors, Area Education Programs Administrators, Agency
Superintendents for Education, Presidents of Post-Secondary Schools and
the Deputy to the Assistant Secretary -- Indian Affairs/Director (Indian
Education Programs) shall render written decisions in all cases appealed
to them within 60 days after all time for pleadings (including all
extensions granted) has expired. The decision shall include a statement
that the decision may be appealed pursuant to this part, identify the
official to whom it may be appealed and indicate thhe appeal procedures,
including the 30-day time limit for filing a notice of appeal.
(b) A copy of the decision shall be sent to the appellant and each
known interested party by certified or registered mail, return receipt
requested. Such receipts shall become a permanent part of the record.
25 CFR 2.20 Action by the Assistant Secretary -- Indian Affairs on
appeal.
(a) When a decision is appealed to the Interior Board of Indian
appeals, a copy of the notice of appeal shall be sent to the Assistant
Secretary -- Indian Affairs.
(b) The notice of appeal sent to the Interior Board of Indian Appeals
shall certify that a copy has been sent to the Assistant Secretary --
Indian Affairs.
(c) In accordance with the provisions of 4.332(b) of title 43 of the
Code of Federal Regulations, a notice of appeal to the Board of Indian
Appeals shall not be effective until 20 days after receipt by the Board,
during which time the Assistant Secretary -- Indian Affairs shall have
authority to decide to:
(1) Issue a decision in the appeal, or
(2) Assign responsibility to issue a decision in the appeal to a
Deputy to the Assistant Secretary -- Indian Affairs.
The Assistant Secretary -- Indian Affairs will not consider petitions
to exercise this authority. If the Assistant Secretary -- Indian
Affairs decides to issue a decision in the appeal or to assign
responsibility to issue a decision in the appeal to a Deputy to the
Assistant Secretary -- Indian Affairs, he/she shall notify the Board of
Indian Appeals, the deciding official, the appellant, and interested
parties within 15 days of his/her receipt of a copy of the notice of
appeal. Upon receipt of such notification, the Board of Indian Appeals
shall transfer the appeal to the Assistant Secretary -- Indian Affairs.
The decision shall be signed by the Assistant Secretary -- Indian
Affairs or a Deputy to the Assistant Secretary -- Indian Affairs within
60 days after all time for pleadings (including all extensions granted)
has expired. If the decision is signed by the Assistant Secretary --
Indian Affairs, it shall be final for the Department and effective
immediately unless the Assistant Secretary -- Indian Affairs provides
otherwise in the decision. Except as otherwise provided in 2.20(g), if
the decision is signed by a Deputy to the Assistant Secretary -- Indian
Affairs, it may be appealed to the Board of Indian Appeals pursuant to
the provisions of 43 CFR part 4, subpart D.
(d) A copy of the decision shall be sent to the appellant and each
known interested party by certified or registered mail, return receipt
requested. Such receipts shall become a permanent part of the record.
(e) If the Assistant Secretary -- Indian Affairs or the Deputy to the
Assistant Secretary -- Indian Affairs to whom the authority to issue a
decision has been assigned pursuant to 2.20(c) does not make a decision
within 60 days after all time for pleadings (including all extensions
granted) has expired, any party may move the Board of Indian Appeals to
assume jurisdiction subject to 43 CFR 4.337(b). A motion for Board
decision under this section shall invest the Board with jurisdiction as
of the date the motion is received by the Board.
(f) When the Board of Indian Appeals, in accordance with 43 CFR
4.337(b), refers an appeal containing one or more discretionary issues
to the Assistant Secretary -- Indian Affairs for further consideration,
the Assistant Secretary -- Indian Affairs shall take action on the
appeal consistent with the procedures in this section.
(g) The Assistant Secretary -- Indian Affairs shall render a written
decision in an appeal from a decision of the Deputy to the Assistant
Secretary -- Indian Affairs/Director (Indian Education Programs) within
60 days after all time for pleadings (including all extensions granted)
has expired. A copy of the decision shall be sent to the appellant and
each known interested party by certified or registered mail, return
receipt requested. Such receipts shall become a permanent part of the
record. The decision shall be final for the Department and effective
immediately unless the Assistant Secretary -- Indian Affairs provides
otherwise in the decision.
25 CFR 2.21 Scope of review.
(a) When a decision has been appealed, any information available to
the reviewing official may be used in reaching a decision whether part
of the record or not.
(b) When the official deciding an appeal believes it appropriate to
consider documents or information not contained in the record on appeal,
the official shall notify all interested parties of the information and
they shall be given not less than 10 days to comment on the information
before the appeal is decided. The deciding official shall include in
the record copies of documents or a description of the information used
in arriving at the decision. Except where disclosure of the actual
documents used may be prohibited by law, copies of the information shall
be made available to the parties upon request and at their expense.
25 CFR 2.21 PART 5 -- PREFERENCE IN EMPLOYMENT
Sec.
5.1 Definitions.
5.2 Appointment actions.
5.3 Application procedure for preference eligibility.
5.4 Information collection.
Authority: 4 Stat. 737, 25 U.S.C. 43; 22 Stat. 88, 25 U.S.C. 46;
28 Stat. 313, 25 U.S.C. 44; 24 Stat. 389, 25 U.S.C. 348; and 48
Stat. 986, 25 U.S.C. 472 and 479.
25 CFR 5.1 Definitions.
For purposes of making appointments to vacancies in all positions in
the Bureau of Indian Affairs a preference will be extended to persons of
Indian descent who are:
(a) Members of any recognized Indian tribe now under Federal
Jurisdiction;
(b) Descendants of such members who were, on June 1, 1934, residing
within the present boundaries of any Indian reservation;
(c) All others of one-half or more Indian blood of tribes indigenous
to the United States;
(d) Eskimos and other aboriginal people of Alaska; and
(e) For one (1) year or until the Osage Tribe has formally organized,
whichever comes first, effective January 5, 1989, a person of at least
one-quarter degree Indian ancestry of the Osage Tribe of Indians, whose
rolls were closed by an act of Congress.
(43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 54 FR 283, Jan. 5, 1989)
25 CFR 5.2 Appointment actions.
(a) Preference will be afforded a person meeting any one of the
standards of 5.1 whether the appointment involves initial hiring,
reinstatement, transfer, reassignment or promotion.
(b) Preference eligibles may be given a Schedule A excepted
appointment under Exception Number 213.3112(a)(7). However, if the
individuals are within reach on a Civil Service Register, they may be
given a competitive appointment.
(43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 49 FR 12702, Mar. 30, 1984)
25 CFR 5.3 Application procedure for preference eligibility.
(a) Proof of eligibility must be submitted with the person's
application for a position.
(b) In order for a person to be considered a preference eligible
according to the standards of 5.1, they must submit proof of
membership, descendancy or degree of Indian ancestry as indicated on
rolls or records acceptable to the Secretary.
(43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 5.4 Information collection.
The Office of Management and Budget has informed the Department of
the Interior that the information collection requirements contained in
part 5 need not be reviewed by them under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.).
(54 FR 283, Jan. 5, 1989)
25 CFR 5.4 SUBCHAPTER B -- LAW AND ORDER
25 CFR 5.4 Pt. 11
25 CFR 5.4 PART 11 -- LAW AND ORDER ON INDIAN RESERVATIONS
Sec.
11.1 Application of regulations and information collection.
11.2 Jurisdiction.
11.3 Judges.
11.4 Removal of judges.
11.5 Court procedure.
11.6 Appellate proceedings.
11.6C Appellate proceedings.
11.7 Juries.
11.7C Juries.
11.8 Witnesses.
11.10 Clerks.
11.11 Records.
11.12 Copies of laws.
11.13 Complaints.
11.14 Warrants to apprehend.
11.15 Arrests.
11.16 Search warrants.
11.17 Commitments.
11.18 Bail or bond.
11.19 Definition of signature.
11.20 Definition of tribal council.
11.20C Definition of tribal council.
11.21 Cooperation by Federal employees.
11.22 Jurisdiction.
11.22C Jurisdiction.
11.23 Law applicable to civil actions.
11.24 Judgments in civil actions.
11.24C Judgments in civil actions.
11.25 Costs in civil actions.
11.26 Payment of judgments from individual Indian moneys.
11.26C Payment of judgments from individual Indian moneys.
11.27 Recording of marriages and divorces.
11.28 Tribal custom marriage and divorce.
11.29 Tribal custom adoption.
11.29C Adoption.
11.30 Determination of paternity and support.
11.31 Determination of heirs.
11.31C Determination of heirs.
11.32 Approval of wills.
11.32C Approval of wills.
11.33 Nature of sentences.
11.34 Probation.
11.34C Probation.
11.35 Parole.
11.36 Juvenile delinquency.
11.36C Juvenile delinquency.
11.37 Disposition of fines.
11.38 Assault.
11.39 Assault and battery.
11.40 Carrying concealed weapons.
11.41 Abduction.
11.42 Theft.
11.43 Embezzlement.
11.44 Fraud.
11.45 Forgery.
11.46 Misbranding.
11.47 Receiving stolen property.
11.48 Extortion.
11.49 Disorderly conduct.
11.50 Reckless driving.
11.50C Reckless driving.
11.50ME Traffic violations.
11.51 Malicious mischief.
11.52 Trespass.
11.53 Injury to public property.
11.54 Maintaining a public nuisance.
11.55 Liquor violations.
11.55ME Liquor violations.
11.56 Cruelty to animals.
11.57 Game violations.
11.58 Gambling.
11.59 Adultery.
11.60C Fornication.
11.61 Illicit cohabitation.
11.62 Prostitution.
11.63 Giving venereal disease to another.
11.63C Giving venereal disease to another.
11.64 Failure to support dependent persons.
11.64C Failure to support dependent persons.
11.65 Failure to send children to school.
11.66 Contributing to the delinquency of a minor.
11.67 Bribery.
11.68 Perjury.
11.69 False arrest.
11.70 Resisting lawful arrest.
11.70ME Resisting or obstructing officers.
11.71 Refusing to aid officer.
11.72 Escape.
11.73 Disobedience to lawful orders of court.
11.74 Violation of an approved tribal ordinance.
11.75C Limitation on filing of complaints.
11.76H Failure to sell or remove from tribal range infectious or cull
animals.
11.77H Introduction of livestock without permit.
11.78H Stock trespass in form of unauthorized use of range.
11.79H Failure to dip sheep.
11.80H Making false reports of stock owned.
11.81H Unauthorized fencing of tribal land.
11.82H Inter-district trespass.
11.83H Grazing stock without permit.
11.84H Refusing to brand or mark livestock.
11.85H Obstructing or interfering with livestock roundups.
11.86H Trespass on areas reserved for demonstration purposes.
11.87H Peyote violations.
11.88ME Curfew.
11.89ME Firearms.
11.90ME Keeping of livestock.
11.91ME Control of dogs.
11.92ME Forest fire protection.
11.93ME Possession of controlled substances.
11.94ME Garbage and rubbish.
11.95ME Extradition.
11.96ME Breaking and entering.
11.97ME Juvenile services.
11.98ME Date of incorporated statutes.
11.301 Superintendent in command.
11.302 Police commissioners.
11.303 Police training.
11.304 Minimum standards for police programs.
11.305 Minimum standards for detention programs.
11.306 Return of equipment.
Authority: R.S. 463; 25 U.S.C. 2. Interpret or apply sec. 1, 38
Stat. 586; 25 U.S.C. 200, unless otherwise noted.
Source: 22 FR 10515, Dec. 24, 1957, unless otherwise noted.
Note: The regulations in this part are applicable on Indian
reservations subject to the provisions of 11.1, and the following
exceptions:
Sections 11.6, 11.7, 11.20, 11.22, 11.24, 11.26, 11.28, 11.29, 11.31,
11.32, 11.34, 11.36, 11.50, 11.63, and 11.64, not applicable to Crow
Indians.
Sections 11.6C, 11.7C, 11.20C, 11.22C, 11.24C, 11.26C, 11.29C,
11.31C, 11.32C, 11.34C, 11.36C, 11.50C, 11.60C, 11.63C, 11.64C, and
11.75C, applicable only to Crow Indians.
Sections 11.76H to 11.87H, inclusive, applicable only to Hopi
Indians.
Sections 11.1, 11.2, 11.3, 11.5, 11.6, 11.6C, 11.7, 11.7C, 11.8,
11.20C, 11.22, 11.22C, 11.24, 11.24C, 11.25, 11.26C, 11.28, 11.29,
11.29C, 11.30, 11.31, 11.31C, 11.32, 11.32C, 11.33, 11.34C, 11.36C,
11.37, 11.49, 11.50C, 11.52, 11.53, 11.57, 11.58, 11.60C, 11.63, 11.63C,
11.64C, 11.74, 11.75C, and 11.76H-11.87H, inclusive, are not applicable
to Coeur d'Alene Indians.
All sections in part 11 not heretofore mentioned in this note are
applicable to the Coeur d'Alene Indians.
25 CFR 5.4 Application; Jurisdiction
25 CFR 11.1 Application of regulations and information collection.
(a) Except as otherwise provided in this part, 11.1 through 11.87
of this part apply to the following Indian reservations:
(1) Omaha (Nebraska).
(2) Flandreau (South Dakota).
(3) Yankton (South Dakota).
(4) Wind River (Wyoming).
(5) Bois Forte (Minnesota).
(6) Red Lake (Minnesota).
(7) Cocopah (Arizona).
(8) Kaibab (Arizona).
(9) Hopi (Arizona) (Tribal court enforcement of special grazing
regulations).
(10) Fallon (Nevada).
(11) Goshute (Nevada).
(12) Lovelock (Nevada).
(13) Te-Moak (Nevada).
(14) Yomba (Nevada).
(15) Duckwater Shoshone (Nevada).
(16) Kootenai (Idaho).
(17) Shoalwater Bay (Washington).
(18) Hoopa (California) (Jurisdiction limited to special fishing
regulations).
(19) Anadarko Area Tribes (Western Oklahoma).
(20) Choctaw (Mississippi).
(21) Eastern Cherokee (North Carolina).
(22) Louisiana Area (Louisiana) (Includes Coushatta and other tribes
in the State of Louisiana which occupy Indian country and which accept
the application of this part; provided that this part shall not apply
to any Louisiana tribe other than the Coushatta Tribe until notice of
such application has been published in the Federal Register.)
(23) Muskogee Area Tribes (Oklahoma).
(b) It is the purpose of the regulations in this part to provide
adequate machinery of law enforcement for those Indian tribes in which
traditional agencies for the enforcement of tribal law and custom have
broken down for which no adequate substitute has been provided under
Federal or State law.
(c) No court of Indian Offenses will be established on reservations
where justice is effectively administered under State laws and by State
law enforcement agencies.
(d) The regulations in this part shall continue to apply to tribes
organized under the act of June 18, 1934 (48 Stat. 984; 25 U.S.C.
461-479), until a law and order code has been adopted by the tribe in
accordance with its constitution and by-laws and has become effective;
and thereafter 11.3, 11.4, 11.301, 11.302, 11.303, 11.304, 11.305 and
11.306 shall continue in effect as long as the Indian judges and Indian
police are paid from appropriations made by the United States or until
otherwise directed.
(e) Nothing in this section shall prevent the adoption by the tribal
council of ordinances applicable to the individual tribe, and after such
ordinances have been approved by the Secretary of the Interior they
shall be controlling, and the regulations of this part which may be
inconsistent therewith shall no longer be applicable to that tribe.
(f) Information collection. The information collection requirements
contained in 11.27 and 11.28 have been approved by the Office of
Management and Budget under 44 U.S.C. 3501 et seq. and assigned
clearance number 1076-0094. The information is collected by Courts of
Indian Offenses having jurisdiction over tribal members in civil and
criminal matters when such members seek to be married or divorced. The
information is used by the Courts of Indian Offenses to issue marriage
licenses and divorce decrees. Response is required to obtain a benefit.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957, as amended at 49 FR 7366, Feb. 29, 1984;
49 FR 12244, Mar. 29, 1984; 50 FR 12242, Mar. 28, 1985; 53 FR 21994,
June 13, 1988; 57 FR 3270, Jan. 28, 1992)
25 CFR 11.2 Jurisdiction.
(a) A Court of Indian Offenses shall have jurisdiction over all
offenses enumerated in 11.38 through 11.87H, when committed by any
Indian, within the reservation or reservations for which the court is
established, provided that such court on the Hopi Reservation shall also
have jurisdiction to enforce against members of the tribe within the
Hopi Reservation the ordinances passed by the Hopi tribal council which
prohibit offenses against the peace and welfare of the tribe committed
by such members off the reservation.
(b) With respect to any of the offenses enumerated in 11.38 through
11.87H, over which Federal or State courts may have lawful jurisdiction,
the jurisdiction of the Court of Indian Offenses shall be concurrent and
not exclusive. It shall be the duty of the said Court of Indian
Offenses to order delivery to the proper authorities of the State or
Federal Government or of any other tribe or reservation, for
prosecution, any offender, there to be dealt with according to law or
regulations authorized by law, where such authorities consent to
exercise jurisdiction lawfully vested in them over the said offender.
(c) For the purpose of the enforcement of the regulations in this
part, an Indian shall be deemed to be any person of Indian descent who
is a member of any recognized Indian tribe now under Federal
jurisdiction and a ''reservation'' shall be taken to include all
territory within reservation boundaries, including fee patented lands,
roads, waters, bridges, and lands used for agency purposes.
(d) All Indians employed in the Indian Service shall be subject to
the jurisdiction of the Court of Indian Offenses but any such employee
appointed by the Secretary of the Interior shall not be subject to any
sentence of such court, unless such sentence shall have been approved by
the Secretary of the Interior.
25 CFR 11.2 Courts of Indian Offenses
25 CFR 11.3 Judges.
(a) A Court of Indian Offenses established for any reservation or
group of reservations shall consist of one or more chief judges, whose
duties shall be regular and permanent, and two or more associate judges,
who may be called to service when occasion requires, and who shall be
compensated on a per diem basis.
(b) Each judge shall be appointed by the Commissioner of Indian
Affairs, subject to confirmation by a two-thirds vote of the tribal
council.
(c) Each judge shall hold office for a period of 4 years, unless
sooner removed for cause or by reason of the abolition of the said
office, but shall be eligible for reappointment.
(d) A person shall be eligible to serve as judge of a Court of Indian
Offenses only if he (1) is a member of a tribe under the jurisdiction of
the said court; and (2) has never been convicted of a felony, or,
within 1 year then last past, of a misdemeanor.
(e) No judge shall be qualified to act as such in any case wherein he
has any direct interest or wherein any relative by marriage or blood, in
the first or second degrees, is a party.
(f) On any reservation where no permanent Court of Indian Offenses
has been established under this section, a provisional court may be
established, with powers equal to those of a permanent court. Such
court shall be established by detailing a judge from another
reservation, upon request of the tribal council of the reservation
desiring his services. Such detail shall be made by the superintendent
of the reservation where the judge regularly presides: Provided, That
where the judge to be detailed is paid from tribal funds the consent of
the tribal council of such tribe shall be obtained for the detail. No
detail shall extend beyond 1 year, but any detail may be renewed for
additional periods unless such renewal is disapproved by the tribal
council which requested or approved the detail.
25 CFR 11.4 Removal of judges.
Any judge of the Court of Indian Offenses may be suspended, dismissed
or removed, by the Commissioner of Indian Affairs, for cause, upon the
recommendation of the tribal council.
25 CFR 11.5 Court procedure.
(a) Sessions of the Court of Indian Offenses for the trial of cases
shall be held by the chief judge, or, in case of his disability, by one
of the associate judges selected for the occasion by all of the judges.
(b) The time and place of court sessions, and all other details of
judicial procedure not prescribed by the regulations in this part, shall
be laid down in rules of court approved by the tribal council and by the
superintendent of the reservation.
(c) It shall be the duty of the judges of each Court of Indian
Offenses to make recommendations to the tribal council for the enactment
or amendment of such rules of court in the interests of improved
judicial procedure.
25 CFR 11.6 Appellate proceedings.
All the judges of the reservation shall sit together, at such times
and at such places as they may find proper and necessary for the
dispatch of business, to hear appeals from judgments made by any judge
at the trial sessions. There shall be established by rule of court the
limitations, if any, to be placed upon the right of appeal both as to
the types of cases which may be appealed and as to the manner in which
appeals may be granted according to the needs of their jurisdiction. In
the absence of such rule of court any party aggrieved by a judgment may
appeal to the full court upon giving notice of such appeal at the time
of judgment and upon giving proper assurance to the trial judge, through
the posting of a bond or in any other manner, that he will satisfy the
judgment if it is affirmed. In any case where a party has perfected his
right to appeal as established herein or by rule of court, the judgment
of the trial judge shall not be executed until after final disposition
of the case by the full court. The full court may render judgment upon
the case by majority vote.
25 CFR 11.6C Appellate proceedings.
All the judges of the reservation, except the trial judge, shall sit
together, at such times and at such places as they may find proper and
necessary for the dispatch of business, to hear appeals from judgments
made by any judge at the trial sessions, and such tribunal shall be
known as the Crow Tribal Court of Appeals. There shall be established
by rule of court the limitations, if any, to be placed upon the right of
appeal both as to the types of cases which may be appealed and as to the
manner in which appeals may be granted, according to the needs of their
jurisdiction. In the absence of such rule of court any party aggrieved
by a judgment may appeal to the full court upon giving notice of such
appeal at the time of judgment and upon giving proper assurance to the
trial judge, through the posting of a bond or in any other manner, that
he will satisfy the judgment if it is affirmed. In any case where a
party has perfected his right to appeal as established in this section
or by rule of court, the judgment of the trial judge shall not be
executed until after final disposition of the case by the full court.
The full court may render judgment upon the case by majority vote.
25 CFR 11.7 Juries.
(a) In any case where, upon preliminary hearing by the court, a
substantial question of fact is raised, the defendant may demand a jury
trial.
(b) A list of eligible jurors shall be prepared by the tribal council
each year.
(c) In any case, a jury shall consist of six residents of the
vicinity in which the trial is held, selected from the list of eligible
jurors by the judge. Any party to the case may challenge not more than
three members of the jury panel so chosen.
(d) The judge shall instruct the jury in the law governing the case
and the jury shall bring a verdict for the complainant or the defendant.
The judge shall render judgment in accordance with the verdict and
existing law. If the jury is unable to reach a unanimous verdict,
verdict may be rendered by a majority vote.
(e) Each juror who serves upon a jury shall be entitled to a fee not
less than the hourly minimum wage scale established by 29 U.S.C.
206(a)(1), and any of its subsequent revisions, plus fifteen cents per
mile travel costs. Each juror shall receive pay for a full day (8
hours) for any portion of a day served, plus travel allowance.
(22 FR 10515, Dec. 24, 1957, as amended at 41 FR 5280, Feb. 5, 1976)
25 CFR 11.7C Juries.
(a) In any case where, upon preliminary hearing by the court, a
substantial question of fact is raised, the defendant may demand a jury
trial.
(b) A list of eligible jurors shall be prepared by the tribal council
each year.
(c) In any case, a jury shall be drawn from the list of eligible
jurors by the judge. Any party to the case may challenge not more than
three members of the jury panel so chosen.
(d) The judge shall instruct the jury in the law governing the case
and the jury shall bring a verdict for the complainant or the defendant.
The judge shall render judgment in accordance with the verdict and
existing law. If the jury is unable to reach a unanimous verdict, the
verdict may be rendered by a two-thirds majority vote.
(e) Each juror who serves upon a jury shall be entitled to a fee not
less than the hourly minimum wage scale established by 29 U.S.C.
206(a)(1), and any of its subsequent revisions, plus fifteen cents per
mile travel costs. Each juror shall receive pay for a full day (8
hours) for any portion of a day served, plus travel allowance.
(22 FR 10515, Dec. 24, 1957, as amended at 41 FR 5280, Feb. 5, 1976)
25 CFR 11.8 Witnesses.
(a) The several judges of the Courts of Indian Offenses shall have
the power to issue subpenas for the attendance of witnesses either on
their own motion or on the request of the police commissioner or
superintendent or any of the parties to the case, which subpena shall
bear the signature of the judge issuing it. Each witness answering such
subpena shall be entitled to a fee not less than the hourly minimum wage
scale established by 29 U.S.C. 206(a)(1) and any of its subsequent
revisions, plus actual cost of travel. Each witness testifying at a
hearing shall receive pay for a full day (8 hours), plus travel
allowance. Failure to obey such subpena shall be deemed an offense as
provided in 11.73. Service of such subpenas shall be by a regularly
acting member of the Indian police or by an Indian appointed by the
court for that purpose.
(b) Witnesses who testify voluntarily shall be paid by the party
calling them if the court so directs, their actual traveling and living
expenses incurred in the performance of their function.
(22 FR 10515, Dec. 24, 1957, as amended at 41 FR 5280, Feb. 5, 1976)
25 CFR 11.10 Clerks.
The superintendent shall detail a clerk of court for each Court of
Indian Offenses. The clerk of the Court of Indian Offenses shall render
assistance to the court, to the police force of the reservation and to
individual members of the tribe in the drafting of complaints, subpenas,
warrants and commitments and any other documents incidental to the
lawful functions of the court. It shall be the further duty of said
clerk to attend and to keep a written record of all proceedings of the
court, to administer oaths to witnesses, to collect all fines paid and
to pay out all fees authorized by the regulations in this part, and to
make an accounting thereof to the disbursing agent of the reservation
and to the tribal council.
25 CFR 11.11 Records.
Each Court of Indian Offenses shall be required to keep, for
inspection by duly qualified officials, a record of all proceedings of
the court, which record shall reflect the title of the case, the names
of the parties, the substance of the complaint, the names and addresses
of all witnesses, the date of the hearing or trial, by whom conducted,
the findings of the court or jury, and the judgment, together with any
other facts or circumstances deemed of importance to the case. A record
of all proceedings shall be kept at the agency office, as required by 25
U.S.C. 200.
25 CFR 11.12 Copies of laws.
(a) Each Court of Indian Offenses shall be provided with copies of
all Federal and State laws and regulations of the Bureau of Indian
Affairs applicable to the conduct of Indians within the reservation.
(b) Whenever the court is in doubt as to the meaning of any law,
treaty or regulation it may request the superintendent to furnish an
opinion on the point in question.
25 CFR 11.13 Complaints.
No complaint filed in any Court of Indian Offenses shall be valid
unless it shall bear the signature of the complainant or complaining
witness, witnessed by a duly qualified judge of the Court of Indian
Offenses or by the superintendent or by any other qualified employee of
such reservation.
25 CFR 11.14 Warrants to apprehend.
Every judge of a Court of Indian Offenses shall have the authority to
issue warrants to apprehend, said warrants to issue in the discretion of
the court only after a written complaint shall have been filed, bearing
the signature of the complaining witness. Service of such warrants
shall be made by a duly qualified member of the Indian police or other
police officer of the United States Indian Service. No warrant to
apprehend shall be valid unless it shall bear the signature of a duly
qualified judge of the Court of Indian Offenses.
25 CFR 11.15 Arrests.
No member of the Indian police shall arrest any person for any
offense defined by 11.38 through 11.87H or by Federal law, except when
such offense shall occur in the presence of the arresting officer or he
shall have reasonable evidence that the person arrested has committed an
offense or the officer shall have a warrant commanding him to apprehend
such person.
25 CFR 11.16 Search warrants.
(a) Every judge of the Court of Indian Offenses of any Indian
reservation shall have authority to issue warrants for search and
seizure of the premises and property of any person under the
jurisdiction of said court. However, no warrant of search and seizure
shall issue except upon a duly signed and written complaint based upon
reliable information or belief and charging the commission of some
offense against the tribe. No warrant for search and seizure shall be
valid unless it contains the name or description of the person or
property to be searched and describes the articles or property to be
seized and bears the signature of a duly qualified judge of the Court of
Indian Offenses. Service of warrants of search and seizure shall be
made only by members of the Indian police or police officers of the
Bureau of Indian Affairs.
(b) No policeman shall search or seize any property without a warrant
unless he shall know, or have reasonable cause to believe, that the
person in possession of such property is engaged in the commission of an
offense under the regulations in this part. Unlawful search or seizure
will be deemed trespass and punished in accordance with 11.52.
25 CFR 11.17 Commitments.
No Indian shall be detained, jailed or imprisoned under the
regulations in this part for a longer period than 36 hours unless there
be issued a commitment bearing the signature of a duly qualified judge
of the Court of Indian Offenses. There shall be issued, for each Indian
held for trial, a temporary commitment and for each Indian held after
sentence a final commitment on the prescribed forms. 1001
0011Forms may be obtained from the Commissioner of Indian Affairs,
Washington, DC.
25 CFR 11.18 Bail or bond.
Every Indian charged with an offense before any Court of Indian
Offenses may be admitted to bail. Bail shall be by two reliable members
of any Indian tribe who shall appear before a judge of the Court of
Indian Offenses where complaint has been filed and there execute an
agreement in compliance with the form provided therefor and made a part
of the regulations in this part. In no case shall the penalty specified
in the agreement exceed twice the maximum penalty set by 11.38 through
11.87H for violation of the offense with which the accused is charged.
25 CFR 11.19 Definition of signature.
The term signature1 as used in the regulations in this part shall be
defined as the written signature, official seal, or the witnessed thumb
print or mark of any individual.
25 CFR 11.20 Definition of tribal council.
The term tribal council, as used in the regulations in this part,
shall be construed to refer to the council, business committee or other
organization recognized by the Department of the Interior as
representing the tribe, or where no such body is recognized, to the
adult members of the tribe in council assembled.
25 CFR 11.20C Definition of tribal council.
The term tribal council, as used in the regulations in this part,
shall be construed to refer to the Crow tribal council.
25 CFR 11.21 Cooperation by Federal employees.
(a) No field employee of the Indian Service shall obstruct, interfere
with or control the functions of any Court of Indian Offenses, or
influence such functions in any manner except as permitted by the
regulations in this part or in response to a request for advice or
information from the court.
(b) Employees of the Bureau of Indian Affairs, particularly those who
are engaged in social service, health and educational work, shall assist
the court, upon its request, in the preparation and presentation of the
facts in the case and in the proper treatment of individual offenders.
25 CFR 11.21 Civil Actions
25 CFR 11.22 Jurisdiction.
The Court of Indian Offenses shall have jurisdiction of all suits
wherein the defendant is a member of the tribe or tribes within their
jurisdiction, and of all other suits between members and nonmembers
which are brought before the courts by stipulation of both parties. No
judgment shall be given on any suit unless the defendant has actually
received notice of such suit and ample opportunity to appear in court in
his defense. Evidence of the receipt of the notice shall be kept as
part of the record in the case. In all civil suits the complainant may
be required to deposit with the clerk of the court a fee or other
security in a reasonable amount to cover costs and disbursements in the
case.
25 CFR 11.22C Jurisdiction.
The Court of Indian Offenses shall have jurisdiction of all suits
wherein the parties to the action are members of the tribe or tribes
within their jurisdiction, and of all other suits between members and
nonmembers which are brought before the courts by stipulation of both
parties. No judgment shall be given on any suit unless the defendant
has actually received notice of such suit and ample opportunity to
appear in court in his defense. Evidence of the receipt of the notice
shall be kept as part of the record in the case. In all civil suits the
complainant may be required to deposit with the clerk of the court a fee
or other security in a reasonable amount to cover costs and
disbursements in the case.
25 CFR 11.23 Law applicable to civil actions.
(a) In all civil cases the Court of Indian Offenses shall apply any
laws of the United States that may be applicable, any authorized
regulations of the Interior Department, and any ordinances or customs of
the tribe, not prohibited by such Federal laws.
(b) Where any doubt arises as to the customs and usages of the tribe
the court may request the advice of counsellors familiar with these
customs and usages.
(c) Any matters that are not covered by the traditional customs and
usages of the tribe, or by applicable Federal laws and regulations,
shall be decided by the Court of Indian Offenses according to the laws
of the State in which the matter in dispute may lie.
25 CFR 11.24 Judgments in civil actions.
(a) In all civil cases, judgment shall consist of an order of the
court awarding money damages to be paid to the injured party, or
directing the surrender of certain property to the injured party, or the
performance of some other act for the benefit of the injured party.
(b) Where the injury inflicted was the result of carelessness of the
defendant, the judgment shall fairly compensate the injured party for
the loss he has suffered.
(c) Where the injury was deliberately inflicted, the judgment shall
impose an additional penalty upon the defendant, which additional
penalty may run either in favor of the injured party or in favor of the
tribe.
(d) Where the injury was inflicted as the result of accident, or
where both the complainant and the defendant were at fault, the judgment
shall compensate the injured party for a reasonable part of the loss he
has suffered.
25 CFR 11.24C Judgments in civil actions.
(a) In all civil cases, judgment shall consist of an order of the
court awarding money damages to be paid to the injured party, or
directing the surrender of certain property to the injured party, or the
performance of some other act for the benefit of the injured party.
(b) Where the injury inflicted was the result of carelessness of the
defendant, the judgment shall fairly compensate the injured party for
the loss he has suffered.
(c) Where the injury was deliberately inflicted, the judgment shall
impose an additional penalty upon the defendant, which additional
penalty may run either in favor of the injured party or in favor of the
tribe.
(d) Where the injury was inflicted as the result of accident, or
where both the complainant and the defendant were at fault, the judgment
may compensate the injured party for a reasonable part of the loss he
has suffered.
25 CFR 11.25 Costs in civil actions.
The court may assess the accruing costs of the case against the party
or parties against whom judgment is given. Such costs shall consist of
the expenses of voluntary witnesses for which either party may be
responsible under 11.8 and the fees of jurors in those cases where a
jury trial is had, and any further incidental expenses connected with
the procedure before the court as the court may direct.
25 CFR 11.26 Payment of judgments from individual Indian moneys.
(a) Whenever the Court of Indian Offenses shall have ordered payment
of money damages to an injured party and the losing party refuses to
make such payment within the time set for payment by the court, and when
the losing party has sufficient funds to his credit at the agency office
to pay all or part of such judgment, the superintendent shall certify to
the Secretary of the Interior the record of the case and the amount of
the available funds. If the Secretary shall so direct, the disbursing
agent shall pay over to the injured party the amount of the judgment, or
such lesser amount as may be specified by the Secretary, from the
account of the delinquent party.
(b) A judgment shall be considered a lawful debt in all proceedings
held by the Department of the Interior or by the Court of Indian
Offenses to distribute decedents' estates.
Cross Reference: For individual Indian money regulations, see part
115 of this chapter.
25 CFR 11.26C Payment of judgments from individual Indian moneys.
(a) Whenever the Court of Indian Offenses shall have ordered payment
of money damages to an injured party and the losing party refuses to
make such payment within the time set for payment by the court, and when
the losing party has sufficient funds to his credit at the agency office
to pay all or part of such judgment, the superintendent shall certify to
the Secretary of the Interior the record of the case and the amount of
the available funds. If the Secretary shall so direct, the disbursing
agent shall pay over to the injured party the amount of the judgment, or
such lesser amount as may be specified by the Secretary, from the
account of the delinquent party.
(b) A judgment shall be considered a lawful debt in all proceedings
held by the Department of the Interior or by the Court of Indian
Offenses to distribute decedents' estates.
(c) No recovery may be had after 5 years from date of final judgment
in any suit unless such judgment shall have been renewed before date of
expiration.
Cross Reference: For individual Indian money regulations, see part
115 of this chapter.
25 CFR 11.26C Domestic Relations
25 CFR 11.27 Recording of marriages and divorces.
All Indian marriages and divorces, whether consummated in accordance
with the State law or in accordance with tribal custom, shall be
recorded within 3 months at the agency of the jurisdiction in which
either or both of the parties reside.
25 CFR 11.28 Tribal custom marriage and divorce.
(a) The Tribal council shall have authority to determine whether
Indian custom marriage and Indian custom divorce for members of the
tribe shall be recognized in the future as lawful marriage and divorce
upon the reservation, and if it shall be so recognized, to determine
what shall constitute such marriage and divorce and whether action by
the Court of Indian Offenses shall be required. When so determined in
writing, one copy shall be filed with the Court of Indian Offenses, one
copy with the superintendent in charge of the reservation, and one copy
with the Commissioner of Indian Affairs. Thereafter Indians who desire
to become married or divorced by the custom of the tribe shall conform
to the custom of the tribe as determined. Indians who assume or claim a
divorce by Indian custom shall not be entitled to remarry until they
have complied with the determined custom of their tribe nor until they
have recorded such divorce at the agency office.
(b) Pending any determination by the tribal council on these matters,
the validity of Indian custom marriage and divorce shall continue to be
recognized as heretofore.
25 CFR 11.29 Tribal custom adoption.
The tribal council shall likewise have authority to determine whether
Indian custom adoption shall be permitted upon the reservation among
members of the tribe, and if permitted, to determine what shall
constitute such adoption and whether action by the Court of Indian
Offenses shall be required. The determination of the tribal council
shall be filed with the Court of Indian Offenses, with the
superintendent of the reservation and with the Commissioner of Indian
Affairs. Thereafter all members of the tribe desiring to adopt any
person shall conform to the procedure fixed by the tribal council.
25 CFR 11.29C Adoption.
No future adoptions among or by the Crow Indians shall be recognized
except those made in accordance with the act of March 3, 1931 (46 Stat.
1494).
25 CFR 11.30 Determination of paternity and support.
The Court of Indian Offenses shall have jurisdiction of all suits
brought to determine the paternity of a child and to obtain a judgment
for the support of the child. A judgment of the court establishing the
identity of the father of the child shall be conclusive of that fact in
all subsequent determinations of inheritance by the Department of the
Interior or by the Court of Indian Offenses.
25 CFR 11.31 Determination of heirs.
(a) When any member of the tribe dies leaving property other than an
allotment or other trust property subject to the jurisdiction of the
United States, any member claiming to be an heir of the decedent may
bring a suit in the Court of Indian Offenses to have the court determine
the heirs of the decedent and to divide among the heirs such property of
the decedent. No determination of heirs shall be made unless all the
possible heirs known to the court, to the superintendent, and to the
claimant have been notified of the suit and given full opportunity to
come before the court and defend their interests. Possible heirs who
are not residents of the reservation under the jurisdiction of the court
must be notified by mail and a copy of the notice must be preserved in
the record of the case.
(b) In the determination of heirs the court shall apply the custom of
the tribe as to inheritance if such custom is proved. Otherwise the
court shall apply State law in deciding what relatives of the decedent
are entitled to be his heirs.
(c) Where the estate of the decedent includes any interest in
restricted allotted lands or other property held in trust by the United
States, over which the administrative law judge would have jurisdiction,
the Court of Indian Offenses may distribute only such property as does
not come under the jurisdiction of the administrative law judge, and the
determination of heirs by the court may be reviewed, on appeal, and the
judgment of the court modified or set aside by the said administrative
law judge, with the approval of the Secretary of the Interior, if law
and justice so require.
Cross Reference: For regulations governing the jurisdiction of the
administrative law judge concerning the determination of heirs, see part
15 of this chapter.
25 CFR 11.31C Determination of heirs.
The superintendent of the Crow Reservation shall have authority to
protect, impound or convert into cash, for the benefit of the estate,
any personal property which may be left by any decedent who is an
enrolled member of the Crow Tribe, pending final determination of the
heirs of said decedent by the Secretary of the Interior, and in
accordance with existing law and regulations.
25 CFR 11.32 Approval of wills.
When any member of the tribe dies, leaving a will disposing only of
property other than an allotment or other trust property subject to the
jurisdiction of the United States, the Court of Indian Offenses shall,
at the request of any member of the tribe named in the will or any other
interested party, determine the validity of the will after giving notice
and full opportunity to appear in court to all persons who might be
heirs of the decedent, as under 11.31. A will shall be deemed to be
valid if the decedent had a sane mind and understood what he was doing
when he made the will and was not subject to any undue influence of any
kind from another perons, and if the will was made in accordance with a
proved tribal custom or made in writing and signed by the decedent in
the presence of two witnesses who also sign the will. If the court
determines the will to be validly executed, it shall order the property
described in the will to be given to the persons named in the will or to
their heirs; but no distribution of property shall be made in violation
of a proved tribal custom which restricts the privilege of tribal
members to distribute property by will.
Cross Reference: For regulations governing the jurisdiction of the
administrative law judge concerning the approval of wills, heirs, see
part 15 of this chapter.
25 CFR 11.32C Approval of wills.
The determination of the validity of wills shall be made by the
Secretary of the Interior as provided in part 15 of this chapter.
25 CFR 11.32C Sentences
25 CFR 11.33 Nature of sentences.
(a) Any Indian who has been convicted by the Court of Indian Offenses
of violation of a provision of 11.38 through 11.84H shall be sentenced
by the court to work for the benefit of the tribe for any period found
by the court to be appropriate; but the period fixed shall not exceed
the maximum period set for the offense in the code, and shall begin to
run from the day of the sentence. During the period of sentence the
convicted Indian may be confined in the agency jail if so directed by
the court. The work shall be done under the supervision of the
superintendent or an authorized agent or committee of the tribal council
as the court may provide.
(b) Whenever any convicted Indian shall be unable or unwilling to
work, the court shall, in its discretion, sentence him to imprisonment
for the period of the sentence or to pay a fine equal to $2 a day for
the same period. Such fine shall be paid in cash, or in commodities or
other personal property of the required value as may be directed by the
court. Upon the request of the convicted Indian, the disbursing agent
may approve a disbursement voucher chargeable to the Indian's account to
cover payment of the fine imposed by the court.
(c) In addition to any other sentence, the court may require an
offender who has inflicted injury upon the person or property of any
individual to make restitution or to compensate the party injured,
through the surrender of property, the payment of money damages, or the
performance of any other act for the benefit of the injured party.
(d) In determining the character and duration of the sentence which
shall be imposed, the court shall take into consideration the previous
conduct of the defendant, the circumstances under which the offense was
committed, and whether the offense was malicious or willful and whether
the offender has attempted to make amends, and shall give due
consideration to the extent of the defendant's resources and the needs
of his dependents. The penalties listed in 11.38 through 11.87H are
maximum penalties to be inflicted only in extreme cases.
25 CFR 11.34 Probation.
(a) Where sentence has been imposed upon any Indian who has not
previously been convicted of any offense, the Court of Indian Offenses
may in its discretion suspend the sentence imposed and allow the
offender his freedom on probation upon his signing a pledge of good
conduct during the period of the sentence upon the form provided
therefor.
(b) Any Indian who shall violate his probation pledge shall be
required to serve the original sentence plus an additional half of such
sentence as penalty for the violation of his pledge.
25 CFR 11.34C Probation.
(a) Where sentence has been imposed upon any Indian, the Court of
Indian Offenses may in its discretion suspend the sentence imposed and
allow the offender his freedom on probation, upon his signing a pledge
of good conduct during the period of the sentence.
(b) Any Indian who shall violate his probation pledge shall be
required to serve the original sentence plus an additional half of such
sentence as penalty for the violation of his pledge.
25 CFR 11.35 Parole.
(a) Any Indian committed by a Court of Indian Offenses who shall have
without misconduct served one-half the sentence imposed by such court
shall be eligible to parole. Parole shall be granted only by a judge of
the Court of Indian Offenses where the prisoner was convicted and upon
the signing of the form provided therefor.
(b) Any Indian who shall violate any of the provisions of such parole
shall be punished by being required to serve the whole of the original
sentence.
25 CFR 11.36 Juvenile delinquency.
Whenever any Indian who is under the age of 18 years is accused of
committing one of the offenses enumerated in 11.38 through 11.87H, the
judge may in his discretion hear and determine the case in private and
in an informal manner, and, if the accused is found to be guilty, may in
lieu of sentence place such delinquent for a designated period under the
supervision of a responsible person selected by him or may take such
other action as he may deem advisable in the circumstances.
25 CFR 11.36C Juvenile delinquency.
(a) Whenever any Indian who is under the age of 18 years is accused
of committing one of the offenses enumerated in 11.38 through 11.75C,
the judge may in his discretion hear and determine the case in private
and in an informal manner, and, if the accused is found to be guilty,
may in lieu of sentence, place such delinquent for a designated period
under the supervision of a responsible person selected by him or may
take such other action as he may deem advisable in the circumstances.
(b) In the absence of either parent or guardian, the court shall
appoint a suitable person to represent the delinquent child.
25 CFR 11.37 Disposition of fines.
(a) All money fines imposed for the commission of an offense shall be
in the nature of an assessment for the payment of designated court
expenses. Such expenses shall include the payment of the fees provided
for in the regulations in this part to jurors and to witnesses answering
a subpena. The fines assessed shall be paid over by the clerk of the
court to the disbursing agent of the reservation for deposit as a
''special deposit, court funds'' to the disbursing agent's official
credit in the Treasury of the United States. The disbursing agent shall
withdraw such funds, in accordance with existing regulations, upon the
order of the clerk of the court signed by a judge of the court for the
payment of specified fees to specified jurors or witnesses. The
disburising agent and the clerk of the court shall keep an accounting of
all such deposits and withdrawals for the inspection of any person
interested. Whenever such fund shall exceed the amount necessary with a
reasonable reserve for the payment of the court expenses before
mentioned, the tribal council shall designate, with the approval of the
superintendent, further expenses of the work of the court which shall be
paid by these funds, such as the writing of records, the costs of
notices or the increase of fees, whether or not any such costs were
previously paid from other sources.
(b) Wherever a fine is paid in commodities, the commodities shall be
turned over under the supervision of the clerk of the court to the
custody of the superintendent to be sold or, if the tribal council so
directs, to be disposed of in other ways for the benefit of the tribe.
The proceeds of any sale of such commodities shall be deposited by the
disbursing agent in the special deposit for court funds and recorded
upon the accounts.
25 CFR 11.37 Code of Indian Tribal Offenses
25 CFR 11.38 Assault.
Any Indian who shall attempt or threaten bodily harm to another
person through unlawful force or violence shall be deemed guilty of
assault, and upon conviction thereof shall be sentenced to labor for a
period not to exceed 5 days or shall be required to furnish a
satisfactory bond to keep the peace.
25 CFR 11.39 Assault and battery.
Any Indian who shall willfully strike another person or otherwise
inflict bodily injury, or who shall by offering bodily injury, or who
shall by offering violence cause another to harm himself shall be deemed
guilty of assault and battery and upon conviction thereof shall be
sentenced to labor for a period not to exceed 6 months.
25 CFR 11.40 Carrying concealed weapons.
Any Indian who shall go about in public places armed with a dangerous
weapon concealed upon his person, unless he shall have a permit signed
by a judge of a Court of Indian Offenses and countersigned by the
superintendent of the reservation, shall be deemed guilty of an offense
and upon conviction thereof shall be sentenced to labor for a period not
to exceed 30 days; and the weapons so carried may be confiscated.
25 CFR 11.41 Abduction.
Any Indian who shall willfully take away or detain another person
against his will or without the consent of the parent or other person
having lawful care or charge of him, shall be deemed guilty of abduction
and upon conviction thereof shall be sentenced to labor for a period not
to exceed 6 months.
25 CFR 11.42 Theft.
Any Indian who shall take the property of another person, with intent
to steal, shall be deemed guilty of theft and upon conviction thereof
shall be sentenced to labor for a period not to exceed 6 months.
25 CFR 11.43 Embezzlement.
Any Indian who shall, having lawful custody of property not his own,
appropriate the same to his own use with intent to deprive the owner
thereof, shall be deemed guilty of embezzlement and upon conviction
thereof shall be sentenced to labor for a period not to exceed 6 months.
25 CFR 11.44 Fraud.
Any Indian who shall by willful misrepresentation or deceit, or by
false interpreting, or by the use of false weights or measures obtain
any money or other property, shall be deemed guilty of fraud and upon
conviction thereof shall be sentenced to labor for a period not to
exceed 6 months.
25 CFR 11.45 Forgery.
Any Indian who shall, with intent to defraud, falsely sign, execute
or alter any written instrument, shall be deemed guilty of forgery and
upon conviction thereof shall be sentenced to labor for a period not to
exceed 6 months.
25 CFR 11.46 Misbranding.
Any Indian who shall knowingly and willfully misbrand or alter any
brand or mark on any livestock of another person, shall be deemed guilty
of an offense and upon conviction thereof shall be sentenced to labor
for a period not to exceed 6 months.
25 CFR 11.47 Receiving stolen property.
Any Indian who shall receive or conceal or aid on concealing or
receiving any property, knowing the same to be stolen, embezzled, or
obtained by fraud or false pretense, robbery or burglary, shall be
deemed guilty of an offense and upon conviction thereof shall be
sentenced to labor for a period not to exceed 3 months.
25 CFR 11.48 Extortion.
Any Indian who shall willfully, by making false charges against
another person or by any other means whatsoever, extort or attempt to
extort any moneys, goods, property, or anything else of any value, shall
be deemed guilty of extortion and upon conviction thereof shall be
sentenced to labor for a period not to exceed 30 days.
25 CFR 11.49 Disorderly conduct.
Any Indian who shall engage in fighting in a public place, disturb or
annoy any public or religious assembly, or appear in a public or private
place in an intoxicated and disorderly condition, or who shall engage in
any other act of public indecency or immorality, shall be deemed guilty
of disorderly conduct and upon conviction thereof shall be sentenced to
labor for a period not to exceed 30 days.
25 CFR 11.50 Reckless driving.
Any Indian who shall drive or operate any automobile, wagon, or any
other vehicle in a manner dangerous to the public safety, shall be
deemed guilty of reckless driving and upon conviction thereof shall be
sentenced to labor for a period not to exceed 15 days and may be
deprived of the right to operate any automobile for a period not to
exceed 6 months. For the commission of such offense while under the
influence of liquor, the offender may be sentenced to labor for a period
not to exceed 3 months.
25 CFR 11.50C Reckless driving.
Any Indian who shall drive or operate any automobile, wagon, or any
other vehicle in a manner dangerous to the public safety, shall be
deemed guilty of reckless driving and upon conviction thereof shall be
sentenced to labor for a period not to exceed 15 days and may be
deprived of the right to operate any automobile for a period not to
exceed 6 months. For the commission of such offense while under the
influence of liquor, the offender may be sentenced for the first offense
to labor for a period not to exceed 3 months and for a second or
subsequent offense for a period not to exceed 6 months and may be
deprived of his right to operate any motor vehicle for a period of 1
year.
25 CFR 11.50ME Traffic violations.
Until such time as the Menominee Tribe enacts its own traffic code,
the provisions of the Wisconsin State Traffic Laws (Chapter 346, Title
32 of Wisconsin Statutes) are hereby applicable to the operation of
motor vehicles on the Menominee Reservation with the exception that any
Indian found guilty of violating such laws shall, in lieu of the
penalties provided by State law, be sentenced to labor for a period not
to exceed six (6) months and may be deprived of the right to operate any
motor vehicle for a period not to exceed six (6) months.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40805, Sept. 13, 1978)
25 CFR 11.51 Malicious mischief.
Any Indian who shall maliciously disturb, injure or destroy any
livestock or other domestic animal or other property, shall be deemed
guilty of malicious mischief and upon conviction thereof shall be
sentenced to labor for a period not to exceed 6 months.
25 CFR 11.52 Trespass.
Any Indian who shall go upon or pass over any cultivated or enclosed
lands of another person and shall refuse to go immediately therefrom on
the request of the owner or occupant thereof or who shall willfully and
knowingly allow livestock to occupy or graze on the cultivated or
enclosed lands, shall be deemed guilty of an offense and upon conviction
shall be punished by a fine not to exceed $5, in addition to any award
of damages for the benefit of the injured party.
25 CFR 11.53 Injury to public property.
Any Indian who shall, without proper authority, use or injure any
public property of the tribe or the United States, shall be deemed
guilty of the offense and upon conviction thereof shall be sentenced to
labor for a period not to exceed 30 days.
25 CFR 11.54 Maintaining a public nuisance.
Any Indian who shall act in such a manner, or permit his property to
fall into such condition as to injure or endanger the safety, health,
comfort, or property of his neighbors, shall be deemed guilty of offense
and upon conviction thereof shall be sentenced to labor for a period not
to exceed 5 days, and may be required to remove such nuisance when so
ordered by the court.
25 CFR 11.55 Liquor violations.
Any Indian who shall possess, sell, trade, transport or manufacture
any beer, ale, wine, whisky or any article whatsoever which produces
alcoholic intoxication, shall be deemed guilty of an offense and upon
conviction thereof shall be sentenced to labor for a period not to
exceed 60 days.
25 CFR 11.55ME Liquor violations.
Until such time as the Menominee Tribe enacts its own liquor control
ordinance, the provisions of the Wisconsin State laws found in Wis.
Ann. 176.01 through 176.91 relating to liquor control, are hereby
incorporated by reference and made applicable to the buying, selling,
and consumption of alcoholic beverages on the Menominee Reservation,
with the exception that any Indian found guilty of violating such law
shall, in lieu of the penalties provided by State law, be sentenced to
labor for a period not to exceed sixty (60) days.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40805, Sept. 13, 1978)
25 CFR 11.56 Cruelty to animals.
Any Indian who shall torture or cruelly mistreat any animal, shall be
deemed guilty of an offense and shall be sentenced to labor for a period
not to exceed 30 days.
25 CFR 11.57 Game violations.
Any Indian who shall violate any law, rule or regulation adopted by
the tribal council for the protection or conservation of the fish or
game of the reservation, shall be deemed guilty of an offense and upon
conviction thereof shall be sentenced to labor for a period not to
exceed 30 days; and he shall forfeit to the court for the use of any
Indian institution such game as may be found in his possession.
25 CFR 11.58 Gambling.
Any Indian who shall violate any law, rule or regulation adopted by
the tribal council for the control or regulation of gambling on any
reservation, shall be deemed guilty of an offense and upon conviction
thereof shall be sentenced to labor for a period not to exceed 30 days.
25 CFR 11.59 Adultery.
Any Indian who shall have sexual intercourse with another person,
either of such persons being married to a third person, shall be deemed
guilty of adultery and upon conviction thereof shall be sentenced to
labor for a period not to exceed 30 days.
25 CFR 11.60C Fornication.
Any Indian who shall have sexual intercourse with another person,
neither of such persons being married, shall be deemed guilty of
fornication and upon conviction thereof shall be sentenced to labor for
a period of not to exceed 25 days.
25 CFR 11.61 Illicit cohabitation.
Any Indian who shall live or cohabit with another as man and wife not
then and there being married shall be deemed guilty of illicit
cohabitation and upon conviction thereof shall be sentenced to labor for
a period not to exceed 30 days.
25 CFR 11.62 Prostitution.
Any Indian who shall practice prostitution or who shall knowingly
keep, maintain, rent or lease, any house, room, tent, or other place for
the purpose of prostitution shall be deemed guilty of an offense and
upon conviction thereof shall be sentenced to labor for a period not to
exceed 6 months.
25 CFR 11.63 Giving veneral disease to another.
Any Indian who shall infect another person with a venereal disease
shall be deemed guilty of an offense, and upon conviction thereof shall
be sentenced to labor for a period not to exceed 3 months. The Court of
Indian Offenses shall have authority to order and compel the medical
examination and treatment of any person charged with violation of this
section or found to be afflicted with any communicable disease of this
nature.
25 CFR 11.63C Giving venereal disease to another.
Any Indian who shall infect another person with a venereal disease
shall be deemed guilty of an offense, and upon conviction thereof shall
be sentenced to labor for a period not to exceed 3 months. The Court of
Indian Offenses shall have authority to order and compel the medical
examination and treatment of any person charged with violation of this
section or found to be afflicted with any communicable disease.
25 CFR 11.64 Failure to support dependent persons.
Any Indian who shall, because of habitual intemperance or gambling or
for any other reason, refuse or neglect to furnish food, shelter, or
care to those dependent upon him, including any dependent children born
out of wedlock, shall be deemed guilty of an offense and upon conviction
thereof shall be sentenced to labor for a period not to exceed 3 months,
for the benefit of such dependent.
25 CFR 11.64C Failure to support dependent persons.
(a) Any Indian who shall, because of habitual intemperance or
gambling or for any other reason, refuse or neglect to furnish food,
shelter, or care to those dependent upon him, including any dependent
children born out of wedlock, shall be deemed guilty of an offense and
upon conviction thereof shall be sentenced to labor for a period not to
exceed 3 months, for the benefit of such dependent.
(b) The Court of Indian Offenses shall also have authority to order
and compel the payment of all alimony lawfully awarded in any divorce
proceeding by any State court having jurisdiction, and nonpayment of
such awards shall be accepted as conclusive evidence of failure to
provide for dependent persons under this section: Provided, however,
That an appeal may be taken to the Tribal Court of Appeals whose
decision shall be final.
25 CFR 11.65 Failure to send children to school.
Any Indian who shall, without good cause, neglect or refuse to send
his children or any children under his care, to school shall be deemed
guilty of an offense and upon conviction thereof shall be sentenced to
labor for a period not to exceed 10 days.
Cross Reference: For regulations pertaining to the education of
Indians, see parts 27, 31 through 33, and 38 through 42 of this chapter.
25 CFR 11.66 Contributing to the delinquency of a minor.
Any Indian who shall willfully contribute to the delinquency of any
minor shall be deemed guilty of an offense and upon conviction thereof
shall be sentenced to labor for a period not to exceed 6 months.
25 CFR 11.67 Bribery.
Any Indian who shall give or offer to give any money, property or
services, or anything else of value to another person with corrupt
intent to influence another in the discharge of his public duties or
conduct, and any Indian who shall accept, solicit or attempt to solicit
any bribe, as above defined, shall be deemed guilty of an offense and
upon conviction thereof shall be sentenced to labor for a period not to
exceed 6 months; and any tribal office held by such person shall be
forfeited.
25 CFR 11.68 Perjury.
Any Indian who shall willfully and deliberately, in any judicial
proceeding in any Court of Indian Offenses, falsely swear or interpret,
or shall make a sworn statement or affidavit knowing the same to be
untrue, or shall induce or procure another person so to do, shall be
deemed guilty of perjury and upon conviction thereof shall be sentenced
to labor for a period not to exceed 6 months.
25 CFR 11.69 False arrest.
Any Indian who shall willfully and knowingly make, or cause to be
made, the unlawful arrest, detention or imprisonment of another person,
shall be deemed guilty of an offense, and upon conviction thereof shall
be sentenced to labor for a period not to exceed 6 months.
25 CFR 11.70 Resisting lawful arrest.
Any Indian who shall willfully and knowingly, by force or violence,
resist or assist another person to resist a lawful arrest shall be
deemed guilty of an offense and upon conviction thereof shall be
sentenced to labor for a period not to exceed 30 days.
25 CFR 11.70ME Resisting or obstructing officers.
Until such time as the Menominee Tribe enacts its own ordinances
dealing with resisting or obstructing an officer, the provisions of
Wisconsin Statutes 946.41 are hereby incorporated by reference and made
applicable with the exception that any Indian found guilty of violating
the provisions of Wisconsin Statutes 946.41(1) shall, in lieu of the
penalties therein provided, be sentenced to labor for a period not to
exceed sixty (60) days.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40805, Sept. 13, 1978)
25 CFR 11.71 Refusing to aid officer.
Any Indian who shall neglect or refuse, when called upon by any
Indian police or other police officer of the Bureau of Indian Affairs,
to assist in the arrest of any person charged with or convicted of any
offense or in securing such offender when apprehended, or in conveying
such offender to the nearest place of confinement shall be deemed guilty
of an offense, and upon conviction, shall be sentenced to labor for a
period not to exceed 10 days.
25 CFR 11.72 Escape.
Any Indian, who, being in lawful custody, for any offense, shall
escape or attempt to escape or who shall permit or assist or attempt to
permit or assist another person to escape from lawful custody shall be
deemed guilty of an offense, and upon conviction thereof shall be
sentenced to labor for a period not to exceed 6 months.
25 CFR 11.73 Disobedience to lawful orders of court.
Any Indian who shall willfully disobey any order, subpena, warrant or
command duly issued, made or given by the Court of Indian Offenses or
any officer thereof, shall be deemed guilty of an offense and upon
conviction thereof shall be fined in an amount not exceeding $180 or
sentenced to labor for a period not to exceed 3 months.
25 CFR 11.74 Violation of an approved tribal ordinance.
Any Indian who violates an ordinance designed to preserve the peace
and welfare of the tribe, which was promulgated by the tribal council
and approved by the Secretary of the Interior, shall be deemed guilty of
an offense and upon conviction thereof shall be sentenced as provided in
the ordinance.
25 CFR 11.75C Limitation on filing of complaints.
No complaint shall be filed charging the commission of an offense, as
defined under 11.38 through 11.75C, unless such offense shall have
been committed within 1 year prior to the date of the complaint.
25 CFR 11.76H Failure to sell or remove from tribal range infectious or
cull animals.
Any Indian who shall willfully refuse to dispose of cull or
infectious animals indicated for removal in accordance with the
instructions contained in 89.8 of this chapter, shall be deemed guilty
of an offense, and upon conviction thereof shall be sentenced to hard
labor for a period of not to exceed 90 days, or a reduction of 10
percent in his grazing permit.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978; 44 FR 18969, Mar. 30, 1979)
25 CFR 11.77H Introduction of livestock without permit.
Any Indian who shall introduce or cause to be introduced any
livestock into unallotted lands of the reservation without a permit
shall be deemed guilty of an offense and upon conviction thereof shall
be sentenced to a period of not to exceed 60 days at hard labor.
Cross Reference: For Navajo grazing regulations, see part 167 of
this chapter.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.78H Stock trespass in form of unauthorized use of range.
Any Indian who shall willfully graze stock in excess of permitted
number on tribal range, or who shall refuse to graze his livestock in
accordance with range management plans which consider deferred grazing,
the reservation of specific areas for seasonal use, etc., shall be
deemed guilty of an offense and upon conviction thereof shall be
sentenced to hard labor for a period not to exceed 6 months, and, or, he
shall be required to pay damages equal to the value of the forage
consumed, salaries and expenses of employees for the time incurred in
making investigation, and reports. In lieu of cash, this fine, if
levied, may be collected in livestock.
Cross Reference: For Navajo grazing regulations, see part 167 of
this chapter.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.79H Failure to dip sheep.
Any Indian who willfully refuses to dip all of his sheep and goats
according to regulations when so directed by the superintendent or his
authorized representative shall be deemed guilty of an offense and upon
conviction thereof shall be sentenced to hard labor for a period not to
exceed 6 months or shall be subject to a fine not to exceed $100 or
both. In lieu of cash, this fine, if levied, may be collected in
livestock.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.80H Making false reports of stock owned.
Any Indian who willfully makes a false report as to the total number
of stock owned, or refuses to make a true report of stock ownership,
shall be deemed guilty of an offense and upon conviction thereof, shall
be fined not less than $10 nor more than $100. In lieu of cash this
fine may be collected in livestock.
Cross Reference: For method of making out reports of stock owned,
see 167.7 of this chapter.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.81H Unauthorized fencing of tribal land.
Any Indian who shall willfully fence, for his own advantage, range
land belonging to the tribe, without first having secured a permit from
the superintendent shall be deemed guilty of an offense and upon
conviction thereof shall be sentenced to hard labor for a period not to
exceed 6 months.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.82H Inter-district trespass.
Any Indian who shall allow his stock to trespass on range allocated
to others under provisions of the grazing regulations, shall be deemed
guilty of an offense and upon conviction thereof shall be sentenced to
hard labor for a period not to exceed 3 months or shall be subject to a
fine equal to the damage done the range allocated to others, or both.
Cross Reference: For Navajo grazing regulations, see part 167 of
this chapter.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.83H Grazing stock without permit.
Any Indian who shall allow his stock to graze on tribal land without
a grazing permit shall be deemed guilty of an offense and upon
conviction thereof shall be sentenced to hard labor for a period not to
exceed 3 months or shall be fined not to exceed $100 or both. In lieu
of cash, this fine, if levied, may be collected in livestock.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.84H Refusing to brand or mark livestock.
Any Indian who shall willfully refuse to brand or mark his or her
livestock where such branding or marking is required in the interest of
ownership identification or for other purposes or who alters obliterates
or removes such brands or marks shall be deemed guilty of an offense and
upon conviction thereof shall be sentenced to hard labor for a period
not to exceed 60 days.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.85H Obstructing or interfering with livestock roundups.
Any Indian who shall interfere with or obstruct authorized roundups
which have for their purpose the removal of unowned horses or other
livestock, or for the purpose of determining ownership or for other
purposes designed to protect tribal land from destruction, shall be
deemed guilty of an offense and upon conviction thereof shall be
sentenced to hard labor for a period not to exceed 6 months.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.86H Trespass on areas reserved for demonstration purposes.
Any Indian who shall commit willful trespass on areas reserved for
demonstration, administration, or agricultural purposes designed for the
benefit of the tribe shall be guilty of an offense and upon conviction
thereof shall be sentenced to hard labor for a period not to exceed 60
days and shall be subject to a fine not exceeding $100, or both. In
lieu of cash, this fine, if levied, may be collected in livestock.
(5 U.S.C. 301 and 25 U.S.C. 2)
(22 FR 10515, Dec. 24, 1957. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.87H Peyote violations.
Any Indian who shall introduce into the Navajo country, sell, use or
have in his possession within said Navajo country, the bean known as
peyote shall be deemed guilty of an offense and upon conviction thereof
shall be sentenced to labor for a period not to exceed 9 months or a
fine not to exceed $100, or both; Provided, That it shall not be
unlawful for any member of the Native American Church to transport into
Navajo country, buy, sell, possess, or use peyote in any form in
connection with the religious practices, sacraments or services of the
Native American Church.
(5 U.S.C. 301 and 25 U.S.C. 2)
(38 FR 19910, July 25, 1973. Redesignated at 43 FR 49982, Oct. 26,
1978)
25 CFR 11.88ME Curfew.
Until such time as the Menominee Tribe enacts its own curfew
ordinance, the provisions of Menominee County Ordinance No. 23A
relating to curfew are hereby incorporated by reference and made
applicable with the exception that any Indian parent or guardian found
guilty of violating such law shall in lieu of the penalties provided by
Menominee County Ordinance No. 23A be sentenced to labor for a period
not to exceed five (5) days.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40805, Sept. 13, 1978)
25 CFR 11.89ME Firearms.
Until such time as the Menominee Tribe enacts its own firearms
ordinance, the provisions of the town of Menominee Ordinance No. 39
relating to the use of firearms are hereby incorporated by reference and
made applicable within the unincorporated villages of Keshena, Neopit,
and Zoar, according to the plats thereof and additions thereto as
recorded with the Register of Deeds of Menominee County, Wis., with the
exception that any Indian found guilty of violating such laws shall, in
lieu of the penalties provided by the said ordinance, be sentenced to
labor for a period not to exceed thirty (30) days.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40805, Sept. 13, 1978)
25 CFR 11.90ME Keeping of livestock.
Until such time as the Menominee Tribe enacts its own ordinances
dealing with the keeping of livestock, the provisions of Menominee
County Zoning Ordinance, Article 6, Section 41, prohibiting the keeping
of livestock within 200 feet of residential property lines are hereby
incorporated by reference and made applicable with the exception that
any Indian found guilty of violating such law shall, in lieu of the
penalties provided by the Menominee County Zoning Ordinance, be
sentenced to labor for a period not to exceed thirty (30) days.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40805, Sept. 13, 1978)
25 CFR 11.91ME Control of dogs.
Until such time as the Menominee Tribe enacts its own ordinances
regulating the keeping of dogs, the provisions of the town of Menominee
Ordinance No. 1 regulating the licensing and control of dogs are hereby
incorporated by reference and made applicable, with the exception that
any Indian found guilty of violating such law, in lieu of the penalties
provided by the said ordinance, be fined five dollars ($5.00) for the
first offense and ten dollars ($10.00) for each succeeding offense.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40805, Sept. 13, 1978)
25 CFR 11.92ME Forest fire protection.
Until such time as the Menominee Tribe enacts its own ordinances
dealing with fire protection, detection, control and suppression, the
provisions of the Wisconsin Administration Code, DNR Section 26.12(5)(a)
requiring a written permit issued by Wisconsin Department of Natural
Resources Fire Warden before any person sets any fire except for warming
the person or cooking food, are hereby incorporated by reference and
made applicable to the setting of fires on the Menominee Reservation.
Any Indian found guilty of failing to obtain a permit shall be sentenced
to labor for a period not to exceed thirty (30) days.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40805, Sept. 13, 1978)
25 CFR 11.93ME Possession of controlled substances.
Until such time as the Menominee Tribe enacts its own ordinances
dealing with the possession of controlled substances, the provisions of
Wisconsin Statutes 161.41(3) are hereby incorporated by reference and
made applicable with the exception that any Indian found guilty of
violating such law shall, in lieu of the penalties provided by Wisconsin
Statutes 161.41(3), be sentenced to labor for a period not to exceed
thirty (30) days.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40806, Sept. 13, 1978)
25 CFR 11.94ME Garbage and rubbish.
Until such time as the Menominee Tribe enacts its own ordinances
dealing with garbage, rubbish, and inflammable material, the provisions
of the town of Menominee Ordinance No. 4 regulating disposal of
garbage, rubbish and inflammable material are hereby incorporated by
reference and made applicable with the exception that the designation of
Menominee Enterprises, Inc., shall include Menominee Tribal Enterprise,
that public dumps may be designated by the Menominee Tribe as well as by
the town of Menominee and that any Indian found guilty of violating such
law shall, in lieu of the penalties provided by town of Menominee
Ordinance No. 4, be sentenced to labor for a period not to exceed five
(5) days in the event of the first offense and not to exceed thirty (30)
days for each succeeding violation.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40806, Sept. 13, 1978)
25 CFR 11.95ME Extradition.
(a) Whenever the Area Director, Minneapolis Area Office, is informed
and believes that an Indian has committed a crime outside the Menominee
Reservation and is present on the Menominee Reservation, using it as an
asylum from prosecution, the Area Director may order a police officer of
the Menominee Reservation to apprehend such Indian and deliver him to
the authorities seeking his arrest at the exterior boundaries of the
reservation.
(b) If a person, apprehended pursuant to this section, so demands, he
shall be taken by the arresting police officers to the Menominee Court
of Indian Offenses where a Judge shall hold a hearing. If it appears
that there is no probable cause to believe the Indian is guilty of the
crime with which he is charged outside the reservation, or if it appears
probable that the Indian will not receive a fair trial in the state
court, the Judge shall order the Indian released from custody.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40806, Sept. 13, 1978)
25 CFR 11.96ME Breaking and entering.
Until such time as the Menominee Tribe enacts its own breaking and
entering ordinance, the provisions of Wisconsin Statutes 943.14,
''Criminal trespass to dwellings,'' are hereby incorporated by reference
and made applicable, with the exception that any Indian found guilty of
violating the provisions of Wisconsin Statutes 943.14 shall, in lieu of
the penalties therein provided, be sentenced to labor for a period not
to exceed six (6) months.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40806, Sept. 13, 1978)
25 CFR 11.97ME Juvenile services.
Until such time as the Menominee Tribe enacts its own juvenile code,
the provisions of the Wisconsin State laws relating to juveniles,
Wisconsin Statutes sections 48.12-48.47, 48.78, 48.81-48.97, and Chapter
54, are hereby incorporated by reference and made applicable to juvenile
cases arising on the Menominee Reservation. Provided, That the
following statutes are not to apply: Wis. Stat. Ann. sections 48.31,
48.32, 48.41, 48.83, and 48.89. And provided further, That rendering of
juvenile services to the Menominee Tribe shall be in accordance with the
agreement entered into on March 15, 1978, between the Wisconsin
Department of Health and Social Services and the Menominee Restoration
Committee.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40806, Sept. 13, 1978)
25 CFR 11.98ME Date of incorporated statutes.
All Wisconsin statutes, Menominee County ordinances, and ordinances
of the town of Menominee, incorporated in 11.50ME through 11.97ME
shall be those in effect on the date of publication of this rulemaking,
together with any amendments hereafter adopted.
(5 U.S.C. 301 and 25 U.S.C. 2)
(43 FR 40806, Sept. 13, 1978)
25 CFR 11.98ME The Indian Police
25 CFR 11.301 Superintendent in command.
The superintendent of each Indian reservation shall be recognized as
commander of the Indian police force and will be held responsible for
the general efficiency and conduct of the members thereof. It shall be
the duty of the superintendent, or his duly qualified representative, to
keep himself informed as to the efficiency of the Indian police in the
discharge of their duties, to subject them to a regular inspection, to
inform them as to their duties and keep a strict accounting of the
equipment issued them in connection with their official duties. It
shall be the duty of the superintendent to detail such Indian policemen
as may be necessary to carry out the orders of the Court of Indian
Offenses and to preserve order during the court sessions. The
superintendent shall investigate all reports and charges of misconduct
on the part of Indian policemen and shall exercise such proper
disciplinary measures as may be consistent with existing regulations.
No superintendent of any Indian reservation shall assign or detail any
member of the Indian police force for duty as janitor or chauffeur or
for any duty not connected with the administration of law and order.
25 CFR 11.302 Police commissioners.
The superintendent of any Indian reservation may, with the approval
of the Commissioner of Indian Affairs, designate as police commissioner
any qualified person. Wherever any special or deputy special officer is
regularly employed in any Indian jurisdiction, he shall be police
commissioner for that jurisdiction. Such police commissioner shall obey
the orders of the superintendent of the reservation where employed and
shall see that the orders of the Court of Indian Offenses are properly
carried out. The police commissioner shall be responsible to the
superintendent for the conduct and efficiency of the Indian police under
his direction and shall give such instruction and advice to them as may
be necessary. The police commissioner shall also report to the
superintendent all violations of law or regulation and any misconduct of
any member of the Indian police.
25 CFR 11.303 Police training.
It shall be the duty of the superintendent to maintain from time to
time as circumstances require and permit classes of instruction for the
Indian policemen. Such classes shall familiarize the policemen with the
manner of making searches and arrests, the proper and humane handling of
prisoners, the keeping of records of offenses and police activities, and
with court orders and legal forms and the duties of the police in
relation thereto, and other subjects of importance for efficient police
duty. It shall further be the purpose of the classes to consider
methods of preventing crime and of securing cooperation with Indian
communities in establishing better social relations.
25 CFR 11.304 Minimum standards for police programs.
The following minimum standards are required of all law enforcement
programs that receive funding from the Bureau of Indian Affairs:
(a) Each law enforcement officer shall be specifically identified as
such and shall be individually authorized to make arrests and carry
firearms. Only employees assigned duties as law enforcement officers
and qualified under paragraph (e) of this section may be authorized to
carry firearms or make arrests.
(b) Uniforms, when worn, shall positively identify the wearer as a
law enforcement officer. Badge, name plate and tribal or Bureau of
Indian Affairs patch shall be visible at all times. Uniforms of all
enforcement personnel shall be plainly distinguishable from the uniforms
of any non-enforcement personnel working on the reservation. Each
officer shall be issued a standard identification card bearing a
photograph of the officer.
(c) A firearm may be discharged only when in the considered judgment
of the officer there is imminent danger of loss of life or serious
bodily injury to the officer or to another person. The weapon may be
fired only for the purpose of rendering the person at whom it is fired
incapable of continuing the activity prompting the officer to shoot.
The firing of warning shots is prohibited. This policy does not apply
to the use of firearms to participate in official marksmanship training
or to kill a dangerous or seriously injured animal.
(d) Except in firearms training, each time a firearm is used for law
enforcement purposes a report shall be filed with the superior of the
officer who used the weapon. Whenever use of a weapon results in
serious injury or death of any person, the officer firing the weapon
shall be placed on administrative leave, or be assigned to strictly
administrative duties pending a thorough investigation of all
circumstances surrounding the incident.
(e) Each law enforcement officer must have attained a score of 70
percent or better on an approved firearms qualification course within
the previous six months to be qualified to carry a firearm. Whenever an
officer's firearms qualification lapses, the officer shall return all
weapons issued. The following courses are approved firearms
qualification courses:
(1) The National Rifle Association National Police Course.
(2) The National Rifle Association 25-Yard Course.
(3) The National Rifle Association Practical Pistol Course.
(4) The Federal Bureau of Investigation Practical Pistol Course.
(f)(1) Law enforcement officers shall be issued the standard police
.38 caliber revolver and ammunition. The use of other types of hand
guns such as automatics, parabellums, or calibers other than the
authorized .38 caliber is prohibited. The barrel length may be not more
than 6 inches nor less than 4 inches for uniformed personnel, and not
less than 2 inches for plainclothes personnel. Only standard load
ammunition may be used. Bureau of Indian Affairs officers who carried a
.357 Magnum revolver while performing law enforcement functions for the
Bureau of Indian Affairs before July 17, 1972, may be authorized to
carry a .357 Magnum revolver. The Commissioner of Indian Affairs may
grant a written waiver to permit Bureau of Indian Affairs officers to
carry hand guns not authorized by this paragraph.
(2) Each tribe shall specify the type of firearms, ammunition and
auxiliary equipment to be used by the law enforcement officers of that
tribe.
(g)(1) Newly employed patrol officers shall successfully complete
within their first year of service the approved Basic Police Training
Course conducted at the Indian Police Academy or a similar course
substantially meeting or exceeding the level of training provided by the
Indian Police Academy and approved by the Commissioner of Indian
Affairs. An officer who fails to complete the training required by this
paragraph shall be discharged or transferred to a position not involving
law enforcement duties. Transfer may result in demotion.
(2) Prior to, or within one year after, promotion or appointment to a
supervisory enforcement position, an employee shall complete the
approved Supervisory Enforcement Officer Training Course conducted at
the Indian Police Academy or a similar course substantially meeting or
exceeding the level of training provided by the Indian Police Academy
and approved by the Commissioner of Indian Affairs. An officer who is
serving in a supervisory position and fails to complete the training
required in this paragraph shall be transferred to a nonsupervisory
position. Transfer may result in demotion.
(3) Prior to, or within one year after, promotion or appointment to a
criminal-investigator position, an officer shall successfully complete
the Criminal-Investigator Training Course conducted at the Indian Police
Academy or a similar course substantially meeting or exceeding the level
of training provided by the Indian Police Academy and approved by the
Commissioner of Indian Affairs. An officer who is serving in a
criminal-investigator position and fails to complete the training
required in this paragraph shall be transferred to a
noncriminal-investigator position. Transfer may result in demotion.
(4) Prior to, or within one year after, promotion or appointment to a
supervisory criminal-investigator position, an officer shall
successfully complete the Executive Management Course of Training
conducted at the Indian Police Academy or a similar course substantially
meeting or exceeding the level of training provided by the Indian Police
Academy approved by the Commissioner of Indian Affairs. An Officer who
is serving in a supervisory criminal-investigator position and fails to
complete the training required in this paragraph shall be transferred to
a nonsupervisory criminal-investigator position. Transfer may result in
demotion.
(h) Each law enforcement officer shall receive a minimum of forty
hours of local in-service training annually to meet training needs
determined by the tribe and to keep abreast with developments in the
field of law enforcement.
(i) The Civil Service Commission accepted Bureau of Indian Affairs
standards for skill level GS-083 are the minimum entry level
qualifications for a patrol officer. The Civil Service Commission
standards for skill level GS-1811 are the minimum entry level
qualifications for criminal investigators. The standards are available
for inspection or copying at any Bureau, Agency, Area, or Central
Personnel Office.
(j) Salaries paid law enforcement officers by a tribal organization
under a contract under part 271 of this chapter or by a tribal governing
body under a grant under part 272 of this chapter shall be equal to or
greater than the salaries paid officers with similar responsibilities
employed directly by the Bureau of Indian Affairs.
(k) Prior to taking an adverse action against any employee, the
contractor under part 271 of this chapter or grantee under part 272 of
this chapter shall take the following steps:
(1) Notify the employee of the contemplated action and give a full
specification of the reasons such action is contemplated.
(2) Provide the employee with a written statement of any specific
violation of rules, regulations, or statutes the contractor or grantee
alleges the employee has committed and the names of all persons upon
whose testimony these allegations are based.
(3) Set a hearing date not less than 15 days after the employee has
been given the written statement of allegation.
(4) Provide the employee and the employee's counsel at the hearing
with an opportunity to confront and cross-examine each adverse witness.
(5) Provide the employee and the employee's counsel at the hearing
with an opportunity to delineate issues, to present factual contentions
in an orderly manner and to generally protect the employee's interest.
(6) Reconsider the decision to take the adverse action based solely
on the evidence given at the hearing and provide the employee at the
time the decision is announced with a written statement of the reasons
for the decision and the evidence relied upon in reaching the decision.
(7) Issue a final order based on the decision reached after the
hearing.
(l) After October 1, 1977, the tribe shall require each law
enforcement officer it employs to adhere to a law enforcement code of
conduct prescribed by the tribe. The code shall establish specific
rules concerning conflicts of interest, employee conduct both on and off
duty, impartiality and thoroughness in performance of duty, and
acceptance of gifts or favors.
(m) A contractor under part 271 of this chapter shall use the same
report forms and submit the same statistical reports to the Central
Office that are required of Bureau of Indian Affairs police programs.
(n)(1) When a law enforcement officer receives an oral or written
allegation that a law enforcement officer employed by a program funded
by the Bureau of Indian Affairs has violated the civil rights of any
person, the officer receiving the allegation shall prepare a written
report of the allegation and transmit it through the chain of command to
the chief law enforcement officer within seven days of receipt of the
allegation.
(2) Not later than seven days after being notified of the allegation,
the chief law enforcement officer shall take the following actions:
(i) Notify the Federal Bureau of Investigation, the agency
superintendent or contracting officer's representative, and the tribal
council. The notice to the Federal Bureau of Investigation shall state
whether an investigation is being conducted to determine whether tribal
law was violated and shall cite any relevant provisions of the tribal
code.
(ii) If the officer against whom the allegation is made is an
employee of the Bureau of Indian Affairs, prepare a memorandum to the
superintendent, who shall, through the area director and the Assistant
Secretary -- Indian Affairs, transmit to the Director, Office of Audit
and Investigation, a request that the allegation be investigated to
determine whether any administrative action is warranted. The
memorandum shall be transmitted through the superintendent and the area
director. The tribal council shall receive a copy of any such
memorandum.
(iii) If the officer against whom the allegation is made is an
employee of a tribal contractor, notify both the top Bureau of Indian
Affairs law enforcement officer assigned to the agency and the tribal
council. If there is no Bureau of Indian Affairs law enforcement
officer at the agency, the superintendent and the area special officer
shall be notified.
(3) If the chief law enforcement officer is accused of a civil rights
violation, the report of the allegation shall be transmitted directly to
the agency superintendent, who shall take the actions required by
paragraph (n)(2) of this section. If there is no agency superintendent,
the report of the allegation shall be transmitted directly to the area
director, who shall take the actions required by paragraph (n)(2) of
this section.
(4) As soon as all actions required by paragraphs (n) (1), (2), and
(3) of this section have been completed, a copy of all documents
concerning the allegation shall be transmitted to the Chief, Division of
Law Enforcement Services, in the Central Office.
(5 U.S.C. 301, 25 U.S.C. 2, 450m)
(41 FR 47234, Oct. 28, 1976; 41 FR 51012, Nov. 19, 1976, as amended
at 42 FR 46518, Sept. 16, 1977; 43 FR 16973, Apr. 12, 1978)
25 CFR 11.305 Minimum standards for detention programs.
Each detention program that receives funds from the Bureau of Indian
Affairs shall meet the following minimum standards:
(a) No sick or injured person may be booked or held in a detention
facility unless a medical release has been obtained from a medical
officer.
(b) Any inmate requiring medical attention shall be treated as soon
as possible.
(c) The jailor or other responsible employee shall maintain control
over the custody and issue of all medicine to prisoners under treatment
for chronic ailments to insure proper use and to guard against overdose.
(d) Routine inspections of all cells shall be conducted every thirty
(30) minutes to protect the safety and welfare of prisoners. A record
of each inspection shall be logged in appropriate records.
(e) Only persons who have been specifically authorized by the jailor
to visit a prisoner or prisoners may be allowed in the cell block areas.
(f) Special attention shall be given to cells occupied by persons
jailed for intoxication to guard against the infliction of personal
injury.
(g) No juvenile may be kept in the same cell with any adult.
(h) Each prisoner shall be served three nutritionally adequate meals
a day.
(i) Each foodhandler shall be given a medical examination and, if
training in foodhandling is available locally from the Indian Health
Service, shall complete the foodhandler training offered by the Indian
Health Service prior to employment.
(j) All jail facilities including kitchens shall be subject to
periodic inspections by personnel from the Indian Health Service or
other appropriate agency to insure proper sanitary conditions.
(k) The number of persons in each cell may not exceed the number for
which the cell was designed.
(l) A record of all visitors shall be maintained indicating date,
time and identity of each visitor.
(m) Proper precautions shall be taken to insure the safekeeping of
property belonging to inmates.
(n) Prior to, or within six months after, promotion or appointment to
a position involving detention/jail duties, an employee shall
successfully complete a Detention/Jail Operations and Management
Training Course approved by the Commissioner of Indian Affairs. An
employee who is serving in a position involving detention/jail duties
and fails to complete the training required by this paragraph shall be
transferred to a position not involving detention/jail or law
enforcement duties or discharged. Transfer may result in demotion.
(5 U.S.C. 301, 25 U.S.C. 2, 450k)
(41 FR 47235, Oct. 28, 1976, as amended at 42 FR 46518, Sept. 16,
1977)
25 CFR 11.306 Return of equipment.
Upon the resignation, death or discharge of any member of the Indian
police all articles or property issued him in connection with his
official duties must be returned to the superintendent or his
representative.
25 CFR 11.306 PART 13 -- TRIBAL REASSUMPTION OF JURISDICTION OVER CHILD CUSTODY PROCEEDINGS
25 CFR 11.306 Subpart A -- Purpose
Sec.
13.1 Purpose.
13.2 Information collection.
25 CFR 11.306 Subpart B -- Reassumption
13.11 Contents of reassumption petitions.
13.12 Criteria for approval of reassumption petitions.
13.13 Technical assistance prior to petitioning.
13.14 Secretarial review procedure.
13.15 Administrative appeals.
13.16 Technical assistance after disapproval.
Authority: 25 U.S.C. 1952.
Source: 44 FR 45095, July 31, 1979, unless otherwise noted.
25 CFR 11.306 Subpart A -- Purpose
25 CFR 13.1 Purpose.
(a) The regulations of this part establish the procedures by which an
Indian tribe that occupies a reservation as defined in 25 U.S.C.
1903(10) over which a state asserts any jurisdiction pursuant to the
provisions of the Act of August 15, 1953 (67 Stat. 588) Pub. L.
83-280, or pursuant to any other federal law (including any special
federal law applicable only to a tribe or tribes in Oklahoma), may
reassume jurisdiction over Indian child custody proceedings as
authorized by the Indian Child Welfare Act, Pub. L. 95-608, 92 Stat.
3069, 25 U.S.C. 1918.
(b) On some reservations there are disputes concerning whether
certain federal statutes have subjected Indian child custody proceedings
to state jurisdiction or whether any such jurisdiction conferred on a
state is exclusive of tribal jurisdiction. Tribes located on those
reservations may wish to exercise exclusive jurisdiction or other
jurisdiction currently exercised by the state without the necessity of
engaging in protracted litigation. The procedures in this part also
permit such tribes to secure unquestioned exclusive, concurrent or
partial jurisdiction over Indian child custody matters without
relinquishing their claim that no Federal statute had ever deprived them
of that jurisdiction.
(c) Some tribes may wish to join together in a consortium to
establish a single entity that will exercise jurisdiction over all their
members located on the reservations of tribes participating in the
consortium. These regulations also provide a procedure by which tribes
may reassume jurisdiction through such a consortium.
(d) These regulations also provide for limited reassumptions
including jurisdiction restricted to cases transferred from state courts
under 25 U.S.C. 1911(b) and jurisdiction over limited geographical
areas.
(e) Unless the petition for reassumption specifically states
otherwise, where a tribe reassumes jurisdiction over the reservation it
occupies, any land or community occupied by that tribe which
subsequently acquires the status of reservation as defined in 25 U.S.C.
1903(10) also becomes subject to tribal jurisdiction over Indian child
custody matters.
25 CFR 13.2 Information collection.
The information collection requirement contained in 13.11 has been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1076-0112. The information is being
collected when federally recognized tribes request reassumption of
jurisdiction over child custody proceedings. The information will be
used to determine if reassumption of jurisdiction over Indian child
custody proceedings is feasible. Response is required to obtain a
benefit.
(53 FR 21994, June 13, 1988)
25 CFR 13.2 Subpart B -- Reassumption
25 CFR 13.11 Contents of reassumption petitions.
(a) Each petition to reassume jurisdiction over Indian child custody
proceedings and the accompanying plan shall contain, where available,
the following information in sufficient detail to permit the Secretary
to determine whether reassumption is feasible:
(1) Full name, address and telephone number of the petitioning tribe
or tribes.
(2) A resolution by the tribal governing body supporting the petition
and plan. If the territory involved is occupied by more than one tribe
and jurisdiction is to be reassumed over all Indians residing in the
territory, the governing body of each tribe involved must adopt such a
resolution. A tribe that shares territory with another tribe or tribes
may reassume jurisdiction only over its own members without obtaining
the consent of the other tribe or tribes. Where a group of tribes form
a consortium to reassume jurisdiction, the governing body of each
participating tribe must submit a resolution.
(3) The proposed date on which jurisdiction would be reassumed.
(4) Estimated total number of members in the petitioning tribe or
tribes, together with an explanation of how the number was estimated.
(5) Current criteria for membership in the tribe or tribes.
(6) Explanation of procedure by which a participant in an Indian
child custody proceeding may determine whether a particular individual
is a member of a petitioning tribe.
(7) Citation to provision in tribal constitution or similar governing
document, if any, that authorizes the tribal governing body to exercise
jurisdiction over Indian child custody matters.
(8) Description of the tribal court as defined in 25 U.S.C. 1903(12)
that has been or will be established to exercise jurisdiction over
Indian child custody matters. The description shall include an
organization chart and budget for the court. The source and amount of
non-tribal funds that will be used to fund the court shall be
identified. Funds that will become available only when the tribe
reassumes jurisdiction may be included.
(9) Copy of any tribal ordinances or tribal court rules establishing
procedures or rules for the exercise of jurisdiction over child custody
matters.
(10) Description of child and family support services that will be
available to the tribe or tribes when jurisdiction reassumed. Such
services include any resource to maintain family stability or provide
support for an Indian child in the absence of a family -- regardless of
whether or not they are the type of services traditionally employed by
social services agencies. The description shall include not only those
resources of the tribe itself, but also any state or federal resources
that will continue to be available after reassumption of jurisdiction.
(11) Estimate of the number of child custody cases expected during a
year together with an explanation of how the number was estimated.
(12) Copy of any tribal agreements with states, other tribes or
non-Indian local governments relating to child custody matters.
(b) If the petition is for jurisdiction other than transferral
jurisdiction under 25 U.S.C. 1911(b), the following information shall
also be included in the petition and plan:
(1) Citation of the statute or statutes upon which the state has
based its assertion of jurisdiction over Indian child custody matters.
(2) Clear and definite description of the territory over which
jurisdiction will be reassumed together with a statement of the size of
the territory in square miles.
(3) If a statute upon which the state bases its assertion of
jurisdiction is a surplus land statute, a clear and definite description
of the reservation boundaries that will be reestablished for purposes of
the Indian Child Welfare Act.
(4) Estimated total number of Indian children residing in the
affected territory together with an explanation of how the number was
estimated.
25 CFR 13.12 Criteria for approval of reassumption petitions.
(a) The Assistant Secretary -- Indian Affairs shall approve a tribal
petition to reassume jurisdiction over Indian child custody matters if:
(1) Any reservation, as defined in 25 U.S.C. 1903(10), presently
affected by the petition is presently occupied by the petitioning tribe
or tribes;
(2) The constitution or other governing document, if any, of the
petitioning tribe or tribes authorizes the tribal governing body or
bodies to exercise jurisdiction over Indian child custody matters;
(3) The information and documents required by 13.11 of this part
have been provided;
(4) A tribal court, as defined in 25 U.S.C. 1903(12), has been
established or will be established before reassumption and that tribal
court will be able to exercise jurisdiction over Indian child custody
matters in a manner that meets the requirements of the Indian Civil
Rights Act, 25 U.S.C. 1302;
(5) Child care services sufficient to meet the needs of most children
the tribal court finds must be removed from parental custody are
available or will be available at the time of reassumption of
jurisdiction; and
(6) The tribe or tribes have established a procedure for clearly
identifying persons who will be subject to the jurisdiction of the tribe
or tribes upon reassumption of jurisdiction.
(b) If the technical assistance provided by the Bureau to the tribe
to correct any deficiency which the Assistant Secretary -- Indian
Affairs has identified as a basis for disapproving a petition for
reassumption of exclusive jurisdiction has proved unsuccessful in
eliminating entirely such problem, the Bureau, at the request of the
tribe, shall assist the tribe to assert whatever partial jurisdiction as
provided in 25 U.S.C. 1918(b) that is feasible and desired by the tribe.
In the alternative, the Bureau, if requested by the concerned tribe,
shall assist the tribe to enter into agreements with a state or states
regarding the care and custody of Indian children and jurisdiction over
Indian child custody proceedings, including agreements which may provide
for the orderly transfer of jurisdiction to the tribe on a case-by-case
basis or agreements which provide for concurrent jurisdiction between
the state and the Indian tribe.
25 CFR 13.13 Technical assistance prior to petitioning.
(a) Upon the request of a tribe desiring to reassume jurisdiction
over Indian child custody matters, Bureau agency and Area Offices shall
provide technical assistance and make available any pertinent documents,
records, maps or reports in the Bureau's possession to enable the tribe
to meet the requirements for Secretarial approval of the petition.
(b) Upon the request of such a tribe, to the extent funds are
available, the Bureau may provide funding under the procedures
established under 25 CFR 23.22 to assist the tribe in developing the
tribal court and child care services that will be needed when
jurisdiction is reassumed.
25 CFR 13.14 Secretarial review procedure.
(a) Upon receipt of the petition, the Assistant Secretary -- Indian
Affairs shall cause to be published in the Federal Register a notice
stating that the petition has been received and is under review and that
it may be inspected and copied at the Bureau agency office that serves
the petitioning tribe or tribes.
(1) No final action shall be taken until 45 days after the petition
has been received.
(2) Notice that a petition has been disapproved shall be published in
the Federal Register no later than 75 days after the petition has been
received.
(3) Notice that a petition has been approved shall be published on a
date requested by the petitioning tribe or within 75 days after the
petition has been received -- whichever is later.
(b) Notice of approval shall include a clear and definite description
of the territory presently subject to the reassumption of jurisdiction
and shall state the date on which the reassumption becomes effective. A
copy of the notice shall immediately be sent to the petitioning tribe
and to the attorney general, governor and highest court of the affected
State or States.
(c) Reasons for disapproval of a petition shall be sent immediately
to the petitioning tribe or tribes.
(d) When a petition has been disapproved a tribe or tribes may
repetition after taking action to overcome the deficiencies of the first
petition.
25 CFR 13.15 Administrative appeals.
The decision of the Assistant Secretary -- Indian Affairs may be
appealed under procedures established in 43 CFR 4.350-4.369. /1/
/1/ Sections 4.350-4.369 of 43 CFR part 4, were removed at 46 FR
7335, Jan. 23, 1981.
25 CFR 13.16 Technical assistance after disapproval.
If a petition is disapproved, the Bureau shall immediately offer
technical assistance to the tribal governing body for the purpose of
overcoming the defect in the petition or plan that resulted in the
disapproval.
25 CFR 13.16 SUBCHAPTER C -- PROBATE
25 CFR 13.16 PART 15 -- DETERMINATION OF HEIRS AND APPROVAL OF WILLS,
EXCEPT AS TO MEMBERS OF THE FIVE CIVILIZED TRIBES AND OSAGE INDIANS
Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as amended,
sec. 1, 38 Stat. 588, 42 Stat. 1185, as amended, secs. 1, 2, 56
Stat. 1021, 1022; 25 U.S.C. 372, 373, 374, 373a, 373b.
25 CFR 15.1 Cross reference.
For special rules applicable to proceedings in Indian Probate
(Determination of Heirs and Approval of Wills, Except as to Members of
the Five Civilized Tribes and Osage Indians), including hearings, and
appeals relating to such matters within the jurisdiction of the Board of
Indian Appeals, Office of Hearings and Appeals, see subpart D of part 4
of subtitle A -- Office of the Secretary of the Interior, of title 43 of
the Code of Federal Regulations, subpart A of part 4 and all of the
general rules in subpart B of part 4, not inconsistent with the special
rules in subpart D of part 4 are also applicable to such Indian probate
proceedings.
(36 FR 7184, Apr. 15, 1971)
25 CFR 15.1 PART 16 -- ESTATES OF INDIANS OF THE FIVE CIVILIZED TRIBES
Sec.
16.1 Definitions.
16.2 Scope of regulations.
16.3 Legal representation in State courts.
16.4 Exchange of information within the Department.
16.5 Acceptance and acknowledgement of service of process.
16.6 Authority of attorneys in State court litigation.
16.7 Performance of Federal functions by successor State courts.
16.8 Summary distribution of small liquid estates.
16.9 Escheat of estates of decedents.
Authority: 5 U.S.C. 301 (Interprets or applies Act of Apr. 26, 1906,
ch. 1876, 34 Stat. 137, see 25 U.S.C. 355nt (1970); Act of May 27,
1908, ch. 199, 35 Stat. 312, see 25 U.S.C. 355nt (1970); Act of June
14, 1918, ch. 101, 40 Stat. 606, 25 U.S.C. 355, 375 (1970); Act of Apr.
12, 1926, ch. 115, 44 Stat. 239, see 25 U.S.C. 355nt (1970); Act of
June 26, 1936, ch. 831, 49 Stat. 1967, 25 U.S.C. 501-509 (1970); Act of
Aug. 4, 1947, ch. 458, 61 Stat. 731, 25 U.S.C. 502 (1970) and see 25
U.S.C. 355nt (1970); Act of Aug. 12, 1953, ch. 409, 67 Stat. 558, 25
U.S.C. 375c (1970) and see 25 U.S.C. 355nt (1970); Act of Aug. 11,
1955, ch. 786, 69 Stat. 666, see 25 U.S.C. 355nt (1970); Act of Aug.
29, 1967, Pub. L. 90-76, 81 Stat. 177, 25 U.S.C. 786-788 (1970); and
Act of May 7, 1970, Pub. L. 91-240, 84 Stat. 203, 25 U.S.C. 375d
(1970)).
Source: 37 FR 7082, Apr. 8, 1972, unless otherwise noted.
25 CFR 16.1 Definitions.
(a) The term Secretary means the Secretary of the Interior and his
authorized representatives.
(b) The term Bureau means the Bureau of Indian Affairs, acting
through the Commissioner of Indian Affairs and his authorized
representatives, including field officials who are responsible for
matters affecting properties in which a restricted interest is owned by
an Indian of the Five Civilized Tribes.
(c) The term Field Solicitor means the Regional Solicitor, Southwest
Region, Page Belcher Federal Building, P.O. Box 3156, Tulsa, Oklahoma
74101.
(d) The term Indian of the Five Civilized Tribes means an individual
who is either an enrolled member of the Cherokee, Chickasaw, Choctaw,
Creek, or Seminole Tribes of Oklahoma, or a descendant of an enrolled
member thereof.
(e) The term restricted interest means an interest owned in real or
personal property subject to restraints upon alienation imposed either
by Federal statute or by administrative action authorized by Federal
statute. Although this term includes property subject to restraints
which may be removed by administrative action, its use in this part
refers primarily to property subject to restraints which State courts
have jurisdiction to remove in proceedings such as those specified in
16.2.
(37 FR 7082, Apr. 8, 1972, as amended at 50 FR 12529, Mar. 29, 1985)
25 CFR 16.2 Scope of regulations.
The regulations in this part set forth procedures for discharging the
responsibilities of the Secretary in connection with the performance by
State courts, as authorized by Federal statutes, of certain functions
which affect properties in which a restricted interest is owned by an
Indian of the Five Civilized Tribes. These State court functions
pertain to such proceedings as guardianship, heirship determination,
will probate, estate administration, conveyance approval, partition of
real property, confirmation of title to real property, and appeal from
action removing or failing to remove restrictions against alienation.
In addition, the regulations in this part set forth procedures for
discharging certain other responsibilities of the Secretary not
necessarily involving State court functions, such as escheat of estates
of deceased Indians of the Five Civilized Tribes.
25 CFR 16.3 Legal representation in State courts.
The statutory duties of the Secretary to furnish legal advice to any
Indian of the Five Civilized Tribes, and to represent such Indian in
State courts, in matters affecting a restricted interest owned by such
Indian, shall be performed by attorneys on the staff of the Solicitor,
under the supervision of the Field Solicitor. Such advice and
representation shall be undertaken to the extent that the Field
Solicitor in his discretion shall consider necessary to discharge said
duties, with due regard to the complexity of the legal action
contemplated, the availability of staff attorneys for such purposes, the
value and extent of the restricted interests involved, possible
conflicts between Indians claiming to be owners of such interests, the
preference of such owners concerning legal representation, the financial
resources available to such owners, the extent to which such owners
require similar legal services in connection with their unrestricted
properties, and any other factor appropriate for consideration.
25 CFR 16.4 Exchange of information within the Department.
To the extent that information may be useful in discharging the
duties covered by the regulations in this part, the Bureau shall furnish
to the Field Solicitor, either on a current basis or at periodic
intervals, processes and notices received concerning court cases and
information, as current and complete as may reasonably be obtainable,
concerning the estate and status of an Indian of the Five Civilized
Tribes for whom legal assistance should be rendered pursuant to the
regulations in this part. Similarly, to the extent that such
information may be useful for Bureau action or records, the Field
Solicitor shall advise the Bureau of court proceedings, information
received, and action taken in furnishing legal services pursuant to the
regulations in this part.
25 CFR 16.5 Acceptance and acknowledgement of service of process.
Service by the Field Solicitor or any other person of any process or
notice, pursuant to any Federal statute which by its express terms is
applicable to Indians of the Five Civilized Tribes, may be accepted and
acknowledged by the Field Solicitor, or by any attorney authorized to
perform the duties specified in 16.3, on behalf of the Secretary and
the Bureau, notwithstanding any specific designation in such statute of
the official to be served (such as the Secretary, superintendent for the
Five Civilized Tribes, Probate Attorney, etc.).
25 CFR 16.6 Authority of attorneys in State court litigation.
Attorneys authorized to perform the duties specified in 16.3
appearing in State court litigation in their official capacities are
authorized to take such action as the Secretary could take if he were
personally appearing in his official capacity as counsel therein,
including but not limited to the filing or decision against filing of
initial, responsive, or supplemental pleadings and appeals from adverse
judgments, the exercise or decision against exercise of a preferential
right to purchase property subject to sale, the removal or decision
against removal of actions to Federal courts, and the waiver or decision
against waiver of the failure to make timely service of process or
notice.
25 CFR 16.7 Performance of Federal functions by successor State courts.
All authority to perform functions relating to Indians of the Five
Civilized Tribes which by express provisions of Federal statute had been
conferred upon probate or county courts of Oklahoma before such county
courts were abolished on January 12, 1969, has since that date been
vested in the successor district courts of that State, and all rights of
litigants continue undiminished in the successor forum, including the
right to appeal from adverse decisions rendered therein to the successor
appellate court.
(Interprets or applies Okla. Op. Atty. Gen. No. 68-381 (Dec. 20,
1968))
25 CFR 16.8 Summary distribution of small liquid estates.
Where information, furnished by the Bureau pursuant to 16.4 or
otherwise obtained, reveals that the estate of a deceased Indian of the
Five Civilized Tribes contains no restricted land but consists of a
restricted interest in funds not exceeding $500 on deposit to the credit
of the decedent, the Field Solicitor shall, in the absence of any final
decree determining the heirs or legatees of the decedent, prepare and
furnish to the Bureau a finding and order of distribution, based on
affidavit or other proof of death and heirship or bequest, setting forth
the facts of death and heirship or bequest and the amount payable from
the estate to each person determined to be an heir or legatee of the
decedent. The Field Solicitor shall mail to each person considered a
possible claimant to any portion of the estate, as an heir or legatee or
otherwise, a copy of the order with a notice that the order shall become
final 30 days after the date of mailing thereof unless within that
period the officer by whom the order was signed shall have received a
written request for reconsideration of the order. After final action on
any order has been taken by the Field Solicitor, the Bureau shall
distribute the funds in the estate of the decedent in accordance with
such final action, unless a timely appeal therefrom has been filed in
accordance with part 2 of this title.
25 CFR 16.9 Escheat of estates of decedents.
Where information, furnished by the Bureau pursuant to 16.4 or
otherwise obtained, reveals that the estate of a deceased Indian of the
Five Civilized Tribes, who has been dead 5 or more years after having
died intestate without heirs, consists of restricted interests in lands
or rents or profits therefrom, the Field Solicitor shall, in the absence
of any final decree determining that the decedent died without heirs or
devisees, prepare and furnish to the Bureau a finding and order of
escheat, based on affidavit or other proof of intestate death without
heirs, setting forth the restricted interests in lands or rents or
profits therefrom which have by escheat vested in the tribe which
allotted the lands. The Field Solicitor shall mail to each person
considered a possible claimant to any portion of the estate, as an heir
or devisee or otherwise, a copy of the order with a notice that the
order shall become final 30 days after the date of mailing thereof
unless within that period the officer by whom the order was signed shall
have received a written request for reconsideration of the order. After
final action on any order has been taken by the Field Solicitor, the
Bureau shall cause a certified copy thereof to be filed in the land
records of each county within which are located any escheated lands
described therein and shall cause the tribe to be credited with any
funds in said estate which arose from rents or profits from such lands,
unless a timely appeal therefrom has been filed in accordance with part
2 of this title.
25 CFR 16.9 PART 17 -- ACTION ON WILLS OF OSAGE INDIANS
Sec.
17.1 Definitions.
17.2 Attorneys.
17.3 Pleadings, notice and hearings.
17.4 Service on interested parties.
17.5 Minors represented at hearings.
17.6 Examination of witness.
17.7 Limiting number of witnesses.
17.8 Supplemental hearing.
17.9 Briefs.
17.10 Record.
17.11 Inspection of wills and approval as to form during testator's
lifetime.
17.12 Approval.
17.13 Government employees as beneficiaries.
17.14 Appeals.
Authority: 5 U.S.C. 301.
Source: 22 FR 10530, Dec. 24, 1957, unless otherwise noted.
25 CFR 17.1 Definitions.
When used in the regulations in this part the following words or
terms shall have the meaning shown below:
(a) Secretary means the Secretary of the Interior.
(b) Commissioner means the Commissioner of Indian Affairs.
(c) Superintendent means the superintendent of the Osage Indian
Agency.
(d) Special attorney means the special attorney for Osage Indians, or
other legal officer designated by the Commissioner.
25 CFR 17.2 Attorneys.
Interested parties may appear in person or by attorneys at law.
Attorneys must file written authority to appear for their clients in the
proceedings.
25 CFR 17.3 Pleadings, notice and hearings.
(a) The petition for approval of the will of a deceased Osage Indian
may be set down for hearing at a date not less than 30 days from the
date the petition is filed. Hearings shall be conducted only after
notice of the time and place of such hearings shall have been given by
mail. The notice shall be mailed not less than 10 days preceding the
date of the hearing and shall state that the special attorney will, at
the time and place specified therein, take testimony to determine
whether the will of the deceased Osage Indian shall be approved or
disapproved. The notice shall list the presumptive heirs of the
decedent and the beneficiaries under such will, and shall notify the
attesting witnesses to be present and testify. It shall state that all
persons interested in the estate of the decedent may be present at the
hearing. The notice shall further state that the special attorney may,
in his discretion, continue the hearing to another time or place to be
announced at the original hearing.
(b) Any interested party desiring to contest approval of the will
may, not less than 5 days before the date set for hearing, file written
objections in triplicate, showing that a copy thereof was served upon
attorneys for the proponent and other attorneys of record in the case.
Such contestant shall clearly state the interest he takes under the will
and, if a presumptive heir, the interest he would take under the
Oklahoma law. The contestant shall further state specifically the
ground on which his contest is based.
25 CFR 17.4 Service on interested parties.
A copy of the notice of hearing shall be served by mail, at his last
known place of residence, on each presumptive heir; each beneficiary
under the will offered for consideration; and each attesting witness
thereto. Such notice must be mailed not less than 10 days preceding the
date set for the hearing.
25 CFR 17.5 Minors represented at hearings.
Minor heirs at law, who by the terms of the will are devised a lesser
interest in the estate than they would take by descent, of whose
interests are challenged, shall, with the approval of the special
attorney, be represented at the hearing by guardians ad litem. Such
minors 14 years of age or over may indicate in writing their choice of
guardians ad litem. If no such choice has been indicated on the date of
the hearing, the special attorney shall make the selection and
appointment.
25 CFR 17.6 Examination of witness.
All testimony taken at the hearing shall be reduced to writing. Any
interested party may cross-examine any witness. Attorneys and others
will be required to adhere to the rules of evidence of the State of
Oklahoma. If, in addition to oral testimony, affidavits or dispositions
are introduced, they must be read, and any opposing claimant may require
the presence of the affiant, if practicable, either at that or a
subsequent hearing, and opportunity shall be given for cross-examination
or for having counter interrogatories answered.
25 CFR 17.7 Limiting number of witnesses.
When the evidence seems clear and conclusive, the special attorney
may, in his discretion, limit the number of witnesses to be examined
formally upon any matter.
25 CFR 17.8 Supplemental hearing.
When it appears that a supplemental hearing is necessary to secure
material evidence, such a hearing may be conducted after notice has been
given to those persons on whom notice of the original hearing was served
and to such other persons as the testimony taken at the original hearing
indicates may have a possible interest in the estate.
25 CFR 17.9 Briefs.
When there are two or more parties with conflicting interests, the
party upon whom the burden of proof may fall may be allowed a reasonable
time, not to exceed 30 days following the conclusion of the hearing, in
which to file a brief or other statement of his contentions, showing
service on opposing counsel or litigant. The latter shall then be
allowed not to exceed 20 days in which to file an answer brief or
statement, and his opponent shall have 10 days thereafter to file a
reply brief or statement. Upon proper showing the special attorney may
grant extensions of time. Each brief or statement shall be filed in
duplicate.
25 CFR 17.10 Record.
After the hearing or hearings on the will have been terminated the
special attorney shall make up the record and transmit it with his
recommendation to the superintendent. The record shall contain:
(a) Copy of notices mailed to the attesting witnesses and the
interested parties.
(b) Proof of mailing of notices.
(c) The evidence received at the hearing or hearings.
(d) The original of the will or wills considered at the hearings.
(e) A copy of all the pleadings.
The record, except the original will, shall be a part of the
permanent files of the Osage Agency.
25 CFR 17.11 Inspection of wills and approval as to form during
testator's lifetime.
When a will has been executed and filed with the superintendent
during the lifetime of the testator, the will shall be considered by the
special attorney who may endorse on such will ''approved as to form.'' A
will shall be held in absolute confidence and its contents shall not be
divulged prior to the death of the testator.
25 CFR 17.12 Approval.
After hearings have been concluded in conformity with this part the
superintendent shall approve or disapprove the wills of deceased Osage
Indians.
25 CFR 17.13 Government employees as beneficiaries.
In considering the will of a deceased Osage Indian the superintendent
may disapprove any will which names as a beneficiary thereunder a
government employee who is not related to the testator by blood, or
otherwise the natural object of the testator's bounty.
25 CFR 17.14 Appeals.
(a) Notwithstanding the provisions in part 2 of this chapter
concerning appeals generally from administrative actions, any appeal
from the action of the superintendent of approving or disapproving a
will shall be taken to the Secretary. Upon the superintendent's final
action of approval or disapproval of a will, he shall immediately notify
by mail all attorneys appearing in the case, together with interested
parties who are not represented by attorneys, of his decision and of
their right to file an appeal.
(b) Any party desiring to appeal from the action of the
superintendent shall, within 15 days after the date of the mailing of
notice of the decision file with the superintendent a notice in writing
of his intention to appeal to the Secretary, and shall, within 30 days
after the mailing date of such notice by the superintendent, perfect his
appeal to the Secretary by service of the appeal upon the superintendent
who will transmit the entire record to the Secretary. If no notice of
intention to appeal is given within 15 days, the superintendent's
decision will be final.
(c) Upon the filing of notice with the superintendent of intention to
appeal or the perfecting of an appeal by service upon the
superintendent, at the same time similar notice and service shall be
effected by the party taking an appeal upon opposing counsel or
litigants, and a statement included in the appeal that this has been
done. A party taking an appeal may, within the same 30-day period
allowed for perfecting an appeal, file a brief or other written
statement of his contentions, showing also service of that brief upon
opposing counsel or litigants. Opposing counsel or litigants shall have
30 days from the date of the service of appellant's brief upon them in
which to file an answer brief, copies of which also shall be served upon
the appellant or opposing counsel and litigants. Except by special
permission, no other briefs will be allowed on appeal.
(26 FR 10930, Nov. 22, 1961)
25 CFR 17.14 SUBCHAPTER D -- HUMAN SERVICES
25 CFR 17.14 PART 20 -- FINANCIAL ASSISTANCE AND SOCIAL SERVICES PROGRAM
25 CFR 17.14 Subpart A -- Definitions, Purpose and Policy
Sec.
20.1 Definitions.
20.2 Purpose.
20.3 Policy.
20.4 Information collection.
25 CFR 17.14 Subpart B -- Administrative Procedures
20.10 Application for assistance or services.
20.11 Securing information.
20.12 Decision.
20.13 Written notice of proposed decision.
20.14 Adjusting incorrect payments.
25 CFR 17.14 Subpart C -- Eligibility Conditions
20.20 General.
20.21 General assistance.
20.22 Child welfare assistance.
20.23 Miscellaneous assistance.
20.24 Family and community services.
20.25 Consultation with tribes.
25 CFR 17.14 Subpart D -- Hearings and Appeals
20.30 Hearings and appeals.
Authority: 25 U.S.C. 13; 20.21 also issued under Pub. L. 98-473.
Source: 42 FR 6568, Feb. 2, 1977, unless otherwise noted.
25 CFR 17.14 Subpart A -- Definitions, Purpose and Policy
25 CFR 20.1 Definitions.
(a) Appeal means a written request for correction of an action or
decision claimed to violate a person's legal rights or privileges as
provided in part 2 of this chapter.
(b) Applicant means an individual or persons on whose behalf an
application for assistance and/or services has been made under the part.
(c) Application means the process through which a request is made for
assistance or services.
(d) Area Director means the Bureau official in charge of an Area
Office.
(e) Authorized representative means a parent or other caretaker
relative, conservator, legal guardian, foster parent, attorney,
paralegal acting under the supervision of an attorney, friend or other
spokesperson acting on behalf or representing the applicant or
recipient.
(f) Bureau means the Bureau of Indian Affairs, U.S. Department of the
Interior.
(g) Child means a person under the age of 18 or such other age of
majority as may be established for purposes of parental support by
tribal or state law (if any) applicable to the person at his or her
residence, except that no person who has been emancipated by marriage
shall be deemed a child.
(h) Child welfare assistance means financial assistance provided on
behalf of an Indian child, or an Indian under age 22 if assistance was
initiated before age 18, who requires placement in a foster home or
specialized non-medical care facility in accordance with standards of
payments established by the State pursuant to the foster care program
under title IV of the Social Security Act (49 Stat. 620) or who has need
of special services not available under general assistance.
(i) Commissioner means the Commissioner of Indian Affairs.
(j) Designated representative means an official of the Bureau
designated by a Superintendent to hold a hearing as prescribed in 20.30
and who has had no prior involvement in the proposed decision under
20.12 and whose hearing decision under 20.30 shall have the same force
and effect as if rendered by the Superintendent.
(k) Family and community services means social services, including
protective services, usually not including money payments, provided
through the social work skills of casework, group work or community
development to solve social problems involving children, adults or
communities.
(l) Foster care service means those social services provided when an
Indian person lives away from the family home.
(m) BIA general assistance is a secondary or residual source of
assistance for eligible Indian people and means financial aid payments
to eligible Indian individuals and households for assistance in meeting
the cost of essential needs.
(n) Indian means any person who is a member, or a one-fourth degree
or more blood quantum descendant of a member of any Indian tribe.
(o) Indian court means Indian tribal court or court of Indian
offenses.
(p) Indian tribe means any Indian Tribe, Band, Nation, Rancheria,
Pueblo, Colony, or Community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688) which is
federally recognized as eligible by the U.S. Government for the special
programs and services provided by the Secretary to Indians because of
their status as Indians.
(q) Miscellaneous assistance means a financial payment made for
burial services, to facilitate the provision of emergency food or
disaster programs, or for other financial needs not defined in this part
but related to assistance for needy Indians.
(r) Near reservation means those areas or communities adjacent or
contiguous to reservations which are designated by the Commissioner upon
recommendation of the local Bureau Superintendent, which recommendation
shall be based upon consultation with the tribal governing body of those
reservations, as locales appropriate for the extension of financial
assistance and/or social services, on the basis of such general criteria
as: (1) Number of Indian people native to the reservation residing in
the area, (2) a written designation by the tribal governing body that
members of their tribe and family members who are Indian residing in the
area, are socially, culturally and economically affiliated with their
tribe and reservation, (3) geographical proximity of the area to the
reservation, and (4) administrative feasibility of providing an adequate
level of services to the area. The Commissioner shall designate each
area and publish the designations in the Federal Register.
(s) Need means the deficit after consideration of income and other
liquid assets necessary to meet the cost of basic need items and special
need items as defined by the Bureau standard of assistance for the State
in which the applicant or recipient resides.
(t) Public assistance means those programs of assistance provided
under Title IV of the Social Security Act (49 Stat. 620), as amended,
and includes the Aid to Families with Dependent Children (AFDC) Program
provided under title IV-A.
(u) Recipient means an individual or persons who have been determined
as eligible and are receiving financial assistance or services under
this part.
(v) Reservation means any federally recognized Indian tribe's
reservation, Pueblo, or Colony, including former reservations in
Oklahoma, Alaska Native regions established pursuant to the Alaska
Native Claims Settlement Act (85 Stat. 688), and Indian allotments.
(w) Resources means income and other liquid assets available to an
Indian person or household to meet current living costs, unless
otherwise specifically excluded by Federal statute. Liquid assets are
those properties in the form of cash or other financial instruments
which can be converted to cash, such as savings or checking accounts,
promissory notes, mortgages and similar properties.
(x) Secretary means the Secretary of the Interior.
(y) Superintendent means the Bureau official in charge of an agency
office.
(z) Supplemental Security Income means those programs of assistance
provided under title XVI of the Social Security Act (49 Stat. 620), as
amended.
(aa) Traditional Indian country means the State of Oklahoma except
Oklahoma City and non-trust land in the city of Tulsa.
(bb) Tribal governing body means the recognized governing body of an
Indian tribe.
(cc) Essential needs include at a minimum shelter, food, clothing and
utilities, but do not include needs, except for burial expenses, beyond
those basic and special needs included in the Bureau standard of
assistance for the State where the Indian individual or household lives.
(dd) Household means persons living together with the head of
household who may be related or unrelated to the head of household and
who function as members of the family.
(ee) Tribal Work Experience Program (TWEP) means a program operated
by tribal contract which provides eligible participants with work
experience and training that promotes and preserves work habits and
develops work skills.
(ff) Recipient means an individual to whom or for whom a BIA general
assistance payment is made for the month.
(gg) Case includes all individuals in the household as defined in
20.1(dd) whose needs are included in the BIA general assistance payment
made for the month.
(25 U.S.C. 2 and 9)
(42 FR 6568, Feb. 2, 1977, as amended at 50 FR 39928, Sept. 30, 1985)
25 CFR 20.2 Purpose.
The regulations in this part govern the provision of general
assistance, child welfare assistance, miscellaneous assistance and
family and community services to eligible Indians.
25 CFR 20.3 Policy.
When assistance or services are not available or not being provided
by state, local, or other agencies, general assistance, child welfare
assistance, miscellaneous assistance and family and community services
shall be provided for eligible Indians by the Bureau in a manner
designed to promote personal and family unity and economic and social
stability, working toward attainment of self-sufficiency.
25 CFR 20.4 Information collection.
The information collection requirements contained in 20.10, 20.11,
20.22, 20.23, and 20.24 have been approved by the Office of Management
and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number
1076-0017. The information is collected to determine applicant
eligibility for services. The information will be used to determine
eligibility and to insure uniformity of services. Response is required
to obtain a benefit.
(53 FR 21994, June 13, 1988)
25 CFR 20.4 Subpart B -- Administrative Procedures
25 CFR 20.10 Application for assistance or services.
(a) Written or oral applications by or on behalf of any individual or
group will be accepted for assistance or services under this part. In
addition to applications from persons desiring assistance or services,
referrals will be accepted directly from relatives, interested
individuals, social welfare agencies, law enforcement agencies, courts
and others.
(b) Applications for assistance or services under this part shall be
made to the Superintendent or an official representative. All
applications for assistance shall ultimately be reduced to a written
form. However, a written statement by an appropriate representative of
the Bureau social services program as to why protective social services
under 20.24(b)(2) were provided may be accepted in lieu of a written
application.
25 CFR 20.11 Securing information.
(a) The applicant will be the primary source of information regarding
his circumstances for the purpose of determining eligibility and need.
If it is necessary to secure information from other sources, the
applicant will be asked to authorize the release of information. The
applicant will be informed, in advance, of the kinds of information
needed, the source to be used, and that the information obtained will be
used only in connection with the application for assistance or services
under this part or as otherwise required by law.
(b) Recipients shall be required to make timely and accurate reports
of any change in circumstances which may affect their eligibility or the
amount of financial assistance.
25 CFR 20.12 Decision.
(a) Action on an application for assistance shall consist of the
following:
(1) The application shall be approved if the applicant meets the
appropriate eligibility criteria set forth in subpart C of this part for
the type of assistance requested, and financial assistance may be
retroactive, as appropriate, to the date of application.
(2) The application shall be denied if the applicant does not meet
the appropriate eligibility criteria set forth in subpart C of this part
for the type of assistance requested.
(3) Action to approve or deny an application shall be made within 30
days of the date of the application, or if not the applicant shall be
notified in writing of the reasons why such a decision cannot be made,
but in no event shall any application be held pending beyond 45 days of
the date of the application.
(b) As appropriate, other decision actions include the following:
(1) To increase or decrease the amount of recipient's financial
assistance pursuant to the eligibility criteria set forth in subpart C
of this part.
(2) To suspend or terminate recipient's financial assistance pursuant
to the eligibility criteria set forth in subpart C of this part.
25 CFR 20.13 Written notice of proposed decision.
Written notice of all proposed decisions shall be mailed or hand
delivered to the applicant or recipient which clearly and completely
advise of their legal rights to contest any adverse proposed decision as
set forth in 20.30 or under part 2 of this chapter and shall further
consist of the following:
(a) A statement of the action being taken, the effective date, and
the reasons for the decision.
(b) If the action is to reduce, suspend, or terminate financial
assistance to the recipient, the written notice shall be provided to the
recipient 20 days in advance of the proposed effective date.
(c) Shall advise the applicant or recipient of his right to request a
hearing if dissatisfied with the proposed decision.
(d) Shall advise the applicant or recipient of his right to be
represented by an authorized representative at no expense to the Bureau.
(e) Shall advise the applicant or recipient that failure to request a
hearing within the 20 day period following the date of notice of
proposed decision will cause the proposed decision to become final
subject to appeal under part 2 of this chapter, and that the decision
will not be disturbed except for fraud or gross irregularity or where
found by higher authority that failure to appeal on the part of the
applicant or recipient would result in inequity or injustice to the
parties.
25 CFR 20.14 Adjusting incorrect payments.
(a) When the Bureau finds that an incorrect payment of financial
assistance has been made to an individual or family, proper adjustment
or recovery shall be required, based upon individual need as appropriate
to the circumstances that resulted in an incorrect payment. However,
prior to adjustment or recovery by the Bureau, the recipient shall be
notified of the proposal to correct the payment and given an informal
opportunity to resolve the matter. If an informal resolution cannot be
attained the recipient is entitled to a written notice of decision, and
a hearing if requested, in accordance with 20.12, 20.13 and 20.30.
Unless a hearing is requested or an appeal made, the proposed decision
shall become final within 20 days after written notice is mailed or
delivered to the recipient.
(b) Applicants and recipients who knowingly and willfully provide the
Bureau with false, fictitious or fraudulent information are subject to
prosecution under 18 U.S.C. 1001, which carries a fine of not more than
$10,000 or imprisonment for not more than five years, or both.
25 CFR 20.14 Subpart C -- Eligibility Conditions
25 CFR 20.20 General.
(a) Basic eligibility conditions shall be:
(1) The applicant must be an Indian, except that in the States of
Alaska and Oklahoma a one-fourth degree or more Indian or Native blood
quantum will be an additional eligibility requirement; and
(2) The applicant must reside on a reservation; or
(3) The applicant must reside near reservation as specifically
defined in 20.1(r) and be a member of the tribe that requested
designation of the near reservation service area.
(b) The applicant must further meet the additional eligibility
requirements for each of the specific programs of assistance or services
as set forth in 20.21 through 20.24 in order to be eligible for
assistance or services under that program.
(c) Upon written request of an appropriate tribal governing body or
the appropriate Bureau line official, the Deputy Assistant Secretary may
authorize emergency short-term assistance and services to Indians, not
otherwise eligible under this part, who reside on a reservation or in
designated near-reservation areas, when necessary to meet need as
defined at 20.21(s) and prevent hardship caused by fire, flood or acts
of nature.
(42 FR 6568, Feb. 2, 1977, as amended at 50 FR 12529, Mar. 29, 1985;
50 FR 39928, Sept. 30, 1985)
25 CFR 20.21 General assistance.
In States where BIA general assistance would otherwise be available,
the Bureau will not provide general assistance:
(a) To on or near-reservation members of tribes currently not served
by BIA general assistance unless the tribe formally requests, through
final governing body action, that the Bureau operate a general
assistance program. Such request for BIA general assistance should be
timed with the Bureau's next fiscal year for the general assistance
program;
(b) In any State having a general assistance program available to
meet the needs of eligible citizens, including the needs of Indians. A
State general assistance program is available if payments are:
(1) Available statewide to eligible individuals and families,
including Indians on reservations;
(2) Authorized by State law with funds regularly appropriated to make
such payments, or if State law requires all county governments or
localities to make such payments even though payments may fluctuate
subject to the limited availability of funds;
(3) For the purpose of meeting monthly minimum essential needs on a
continuing basis; and,
(4) Where the Bureau provides general assistance on a reservation in
one State and that reservation extends into a bordering State(s), the
Bureau will provide general assistance to members of the tribe in the
other bordering State(s) based on the standard of assistance in the
State where the recipient or applicant resides. However, the Bureau
will provide such assistance in the bordering State(s) only to those
members who are not eligible for State general assistance as defined in
20.21.
(c) In States where the Bureau provides general assistance, Indians,
in order to be considered eligible for general assistance under this
part, must meet the requirements prescribed in 20.20(a); and the
following conditions:
(1) Must not receive financial assistance from AFDC or Supplemental
Security Income (SSI);
(i) Indians eligible to receive AFDC or SSI will be allowed to
receive BIA general assistance once they have applied for and until they
begin to receive assistance payments from AFDC or SSI, except that
payment shall be authorized when good cause reasons, such as physical
isolation, lack of transportation or intermittent availability of State
eligibility specialists, temporarily prevent concurrent application;
and when it can be documented that the application process has been
initiated by scheduling an appointment, or that the BIA/tribal
caseworker has initiated the application process on behalf of the
general assistance applicant.
(ii) The Bureau will not make payments for any month for which AFDC
or SSI payments are made.
(2) Must have insufficient resources to meet the basic and special
need items defined by the Bureau standard of assistance;
(3) Must apply for assistance from other Federal, State, county, or
local programs for which they may be eligible concurrent with
application to the Bureau for general assistance, unless good cause
reasons, such as physical isolation with sporadic access to
transportation or intermittent availability of State eligibility
specialists, temporarily prevent concurrent application; and when it
can be documented that the application process has been initiated by
scheduling an appointment, or that the BIA/tribal caseworker has
initiated the application process on behalf of the general assistance
applicant.
(d) Redeterminations. (1) The Bureau shall determine eligibility and
the amount of the BIA general assistance payment based on its best
estimate of income and circumstances which will exist in the month for
which the Bureau is to provide assistance. Recipients are required to
immediately inform the Bureau of any changes in status which may affect
their eligibility or amount of assistance. The Bureau shall redetermine
eligibility:
(i) Whenever there is an indication of a change in circumstances;
(ii) Not less frequently than every three (3) months for individuals
who are not exempt under paragraph 20.21(i) from seeking or accepting
employment;
(iii) Not less frequently than one every six (6) months for all
households.
(2) The redetermination process shall include personal contact with
the recipient, preferably a home visit, not less than once a year to
evaluate changes in living circumstances and household composition, and
to assess the need for continued assistance.
(e) Standards of Assistance. (1) Where the Bureau operates a general
assistance program, its standard of assistance shall be the AFDC payment
standard used in the State where the applicant or recipient resides. In
a State that meets 100 percent of the need standard, the Bureau standard
is the need standard. In a State that does not meet need in full and
applies a rateable reduction to the need standard, the Bureau standard
is the rateable reduced amount. The AFDC payment standard incorporates
the same basic and special need items as the AFDC standard of
assistance, and is the amount from which the Bureau will subtract net
income and liquid assets to determine eligibility for and the amount of
the Bureau's general assistance payment.
(2) In the event the State has no standard for one adult, the Bureau
standard for one adult shall be the difference between the standard for
one child and the standard for a household of two which includes an
adult, or one-half the amount of the standard for a household of two,
whichever is greater.
(f) Resources. In determining eligibility for and the amount of the
general assistance payment, the Bureau shall consider all types of
income and other liquid assets available for support and maintenance
unless otherwise disregarded under 20.21(g), or specifically excluded
by Federal statute. All earned or unearned income will be counted as
income in the month received and as a liquid asset thereafter, except
certain income from the sale of real personal property as provided for
under 20.21(f)(2)(i). Resources are considered available both when
actually available and when the applicant or recipient has a legal
interest in a liquidated sum, as defined at 25 CFR 20.1(w), and has the
ability to make such sum available for support and maintenance.
(1) Earned income means in cash or in kind earned by an individual
through the receipt of wages, salary, commissions, or profit from
activities in which he is engaged as a self-employed individual or as an
employee.
(i) Earned income includes earnings over a period of time for which
settlement is made at one given time, as in the instance of the sale of
farm crops, livestock, etc.
(ii) With respect to self-employment, earned income means total
profit from business enterprise, i.e., gross receipts after subtracting
business expenses directly related to producing the goods or services
and without which the goods or services could not be produced. Business
expenses do not include items such as depreciation, personal business
and entertainment expenses, personal transportation, purchase of capital
equipment and payments on the principal on loans for capital assets or
durable goods.
(2) Unearned income includes but is not limited to:
(i) Income from: Interest; oil and gas and other mineral royalties;
rental property; cash contributions such as child support and alimony;
retirement, disability and unemployment benefits; per capita payments
not excluded by Federal statute; sale of trust land and real or
personal property which is not set aside for the purpose of reinvestment
in trust land or a primary residence, or if set aside, has not been
reinvested in trust land or a primary residence at the end of one year
from the date the income was received; Federal and State tax refunds.
All of the above shall be counted to the extent they are not disregarded
by Federal statute.
(ii) Income in kind contributions providing shelter at no cost to the
individual or household: In establishing the amount of the in kind
contribution, the Bureau shall use the amount for shelter included in
the standard, if identifiable, or 25 percent of the standard unless
there is evidence provided that the value of free shelter is less; and,
(iii) Assistance provided by a State, county or local agency.
(3) The Bureau shall prorate (i): Over a 12-month period recurring
annual income received by individuals, such as teachers whose regular
employment does not engage them on a year round basis; (ii) income
received by individuals employed on a contractual basis over the period
of the contract; and (iii) intermittent income received quarterly,
semiannually or yearly over the period covered by the income. The
Bureau shall prorate the income unless there is evidence that the income
will not continue to be received in the future. However, for a period
of three years from the publication date of these regulations, the
Bureau will not prorate lease income which has been obligated by a
household in a manner which makes it unavailable in consumable form to
the household.
(g) Disregards. (1) The Bureau shall disregard, from the gross
amount of earned income, amounts deducted for:
(i) Federal, State and local taxes;
(ii) Social Security (FICA);
(iii) Health insurance;
(iv) Work related expenses, including reasonable transportation
costs;
(v) Child care costs except where the other parent in the home is not
working or is not disabled; and
(vi) The cost of special clothing, tools and equipment directly
related to the individual's employment. All of the above, as
appropriate, will be disregarded from self-employment income after
deducting costs of doing business.
(2) The Bureau shall disregard as income, or other liquid assets:
(i) The first $1000 of liquid resources available to the household;
(ii) Any home produce from garden, livestock and poultry utilized by
the applicant or recipient and his/her household for their consumption;
(iii) Resources specifically excluded by Federal statute.
(h) Payments. (1) The Bureau shall make assistance payments in an
amount not to exceed the difference between the Bureau standard of
assistance and all resources not otherwise disregarded. In the event
the State in which the individual or household lives applies a rateable
reduction to that difference or maintains a system of dollar maximums on
the payment, the Bureau shall also apply the rateable reduction and/or
the maximum to the payment.
(2) If there is more than one household living in a dwelling and the
household(s) receiving general assistance contribute to shelter
expenses, the Bureau shall prorate the actual shelter cost, but the
amount in the payment for shelter will not exceed the amount in the
Bureau standard of assistance for shelter, or if not identifiable, the
prorated amount, in addition to other needs, cannot exceed the total
amount in the standard for individuals or households in similar
circumstances.
(3) The Bureau will round the payment down to the next lower whole
dollar.
(4) In no case shall the Bureau provide retroactive payments of
general assistance for any period prior to the date of application for
assistance.
(i) Employment. (1) An applicant or recipient must actively seek
employment, including use of available tribally or Bureau-funded
employment assistance services. The individual is also required to
accept available local employment. An individual who does not comply
will not be eligible for general assistance. These requirements do not
apply to:
(i) A person under the age of 16 years;
(ii) A full-time student under the age of 19 who is attending an
elementary or secondary school, or a vocational or technical school
equivalent to a secondary school;
(iii) A person suffering from an illness, when it is determined on
medical evidence or on other sound basis that the individual's illness
or injury is serious enough to temporarily prevent entry into
employment;
(iv) An incapacitated person, when verified that a physical or mental
impairment determined by a physician or licensed or certified
psychologist, by itself or in conjunction with age, prevents the
individual from engaging in employment;
(v) A person who, upon the documented assessment of the social
services caseworker, and pending examination by a physician or other
appropriate professional, is deemed essentially incapacitated because of
age, physical or mental impairment;
(vi) An individual responsible for a person in the home who has a
verified physical or mental impairment that requires the individual in
the home on a virtually continuous basis, and there is no other
appropriate household member available;
(vii) A parent or other individual who personally provides full-time
care of a child under that age of 6;
(viii) A parent or minor living in the household if the other parent
is not exempt from seeking or accepting employment;
(ix) A person who is working 30 hours or more per week in
unsubsidized employment expected to last a minimum of 30 days. This
exemption continues to apply if there is a temporary break in full-time
employment expected to last no longer than 10 work days; and
(x) A person for whom employment is not accessible in a commuting
time that is reasonable and comparable with others in similar
circumstances.
(2) Where the tribe administers a Tribal Work Experience Program
(TWEP), the nonexempt individual shall be available to participate.
However, participation does not relieve the individual from seeking or
accepting employment.
(3) Individuals not exempt under one of the preceding clauses of this
section must, in seeking employment, provide evidence of efforts to
obtain employment.
(4) Individuals not exempt under one of the preceding clauses of this
section, who refuse, or otherwise fail to seek and accept available
local employment, or who voluntarily and without good cause do not
maintain their employed status, will not be eligible to receive general
assistance for a period of 60 days following the date of application, or
eligibility redetermination.
(i) The 60-day period of ineligibility will be renewed upon each
application for general assistance until the applicant complies with the
requirement to seek and accept available local employment.
(ii) An unemployed individual against whom a 60-day eligibility
suspension has been levied will have the suspension period reduced by 30
days upon providing evidence that he/she has made effort to seek
employment.
(iii) Periods of eligibility suspension shall affect only the
individual who fails to comply with the provision of this section, but
shall not apply to other members of his/her household.
(50 FR 39928, Sept. 30, 1985)
25 CFR 20.22 Child welfare assistance.
An Indian child meeting the requirements prescribed in 20.20(a)
shall be considered eligible for child welfare assistance or services
under this part. Provided, That:
(a) The child's legally responsible parent, guardian, or Indian court
having jurisdiction:
(1) Requests such assistance in writing and is unable to provide
necessary care and guidance for the child in his own home for other than
financial reasons and is unable to meet the cost of foster care.
(2) Requests such assistance in writing and is unable to provide for
the child's special needs which cannot be through other assistance
programs including the Bureau's general assistance program.
(b) The child is not receiving and is not eligible to receive public
assistance or Supplemental Security Income payments and is not included
in such payments made to others. However, an otherwise eligible child
may receive child welfare assistance under this part upon application
for and pending initial receipt of public assistance or Supplemental
Security Income payments and may receive continued services irrespective
of assistance payments if such services are not otherwise available.
(c) The child resides in an area where comparable child welfare
assistance and services are not available or are not being provided to
all residents on the same basis from a State, county or local public
jurisdiction.
25 CFR 20.23 Miscellaneous assistance.
In the absence of other resources, miscellaneous assistance shall be
provided to eligible Indians meeting the requirements prescribed in
20.20(a): Provided, That they reside in areas where comparable
miscellaneous assistance is not available or is not being provided to
all residents on the same basis from a State, county or local public
jurisdiction.
25 CFR 20.24 Family and community services.
(a) Family and community services shall be provided for Indians
meeting the requirements prescribed in 20.20(a) who request such
services or on whose behalf such services are requested.
(b) Family and community services may include, but are not limited
to, the following:
(1) Family and individual counseling to assist in solving problems
related to family functioning, housekeeping practices, care and
supervision of children, interpersonal relationships, economic
opportunity, money management, and problems related to illness, physical
or mental handicaps, drug abuse, alcoholism and violation of law.
(2) Protective services which are provided when children or adults
are deprived temporarily or permanently of needed supervision by
responsible adults, or are neglected, exploited, or need services when
they are mentally or physically handicapped or otherwise disabled, and
for children who have run away from home. Protective services will be
developed in consultation and cooperation with tribal protective
services, if applicable. Such services may include but are not limited
to the following:
(i) Response to requests from members of the community on behalf of
children or adults alleged to need protective services.
(ii) Family and supplemental services, including referral for
homemaker and day care services, which appropriately divert children
from the juvenile justice system.
(iii) Services to responsible family members or guardians to seek
appropriate court protections for the child or adult and, in the absence
of such responsible adult, to seek the appointment of a guardian.
(3) Services to Indian courts, which may include but are not limited
to the following:
(i) Investigations and reports as to allegations of child and adult
abuse and neglect, abandonment, delinquency, running away from home, and
conditions such as mentally or physically handicapped or otherwise
disabled.
(ii) Provision of social information related to the disposition of a
case, including evaluation of alternative resources of treatment.
(iii) Provision of services requested by the court prior to
adjudication such as marriage and divorce counseling, child custody, and
after adjudication such as probation, foster care, supervision of
children and adults in their own home.
(4) Foster care services for children which shall be provided when an
Indian child is a recipient of child welfare assistance under 20.22 and
services are not available from another source, and may be provided as
needed for an Indian child living away from its parent(s) in the absence
of a child welfare assistance payment. Such services shall include but
are not limited to:
(i) Determination that foster care is the best available plan for the
child.
(ii) Development of an immediate and long range plan to establish a
more stable emotional and social life for the child and its family,
including referral of the child for adoption when indicated.
(iii) Services in the recruitment and development of suitable foster
homes and other foster care facilities.
(iv) Services to responsible family members, or at the request of an
Indian court having jurisdiction, in the selection of a suitable foster
care facility and a continued evaluation of the suitability of the
facility.
(v) Services in the placement of an Indian child for long or short
term foster care suited to his needs and to review the plan
periodically.
(vi) Services to parent(s), foster parent(s), or other caretaker(s)
to provide care and guidance for the child in foster care.
(5) Foster care services for adults which shall be provided when a
general assistance payment under 20.21 is made for their care in a
foster care facilty, or when needed in the absence of a general
assistance payment. The services may include but are not limited to:
(i) Arranging for care in a private family home, or a facility for
the care of the aged or disabled except where the primary service
provided by the facility is medical.
(ii) Services to responsible family members, guardians, or at the
request of an Indian court having jurisdiction, in selecting a facility
which will provide needed care.
(iii) Services providing for continuity with family and community
ties.
(iv) Services to continually evaluate the suitability of the selected
care facility, including referral for other care as indicated.
(6) Community services which are services involving other groups,
agencies, and facilities in the community may include but are not
limited to:
(i) Responses to community needs for evaluating social conditions
affecting the well-being of its citizens.
(ii) Treatment of the identified conditions that are within the
competence of social services.
(iii) Maintenance of a liaison relationship with other community
agencies for the purpose of:
(A) Identifying the availability of services that may be utilized to
assist in solving the social problems of individuals, families and
children.
(B) Facilitating the use of available community services by Indian
persons who need them.
25 CFR 20.25 Consultation with tribes.
Bureau personnel shall upon request provide consultation and advice
to tribal governing bodies and other tribal entities including Indian
courts seeking to organize their social services to meet more
effectively the social service needs of their people. See 11.21 of
this chapter. All programs provided for in this part shall, insofar as
possible, be consistent with tribal custom, codes and law.
25 CFR 20.25 Subpart D -- Hearings and Appeals
25 CFR 20.30 Hearings and appeals.
(a) Any applicant or recipient of financial assistance under this
part who is dissatisfied with any decision or action concerning
eligibility for or receipt of financial assistance may request a hearing
before the Superintendent or his designated representative within 20
days after the date of mailing or delivery of the written notice of the
proposed decision as provided in 20.13. The Superintendent may extend
the 20 day period for good cause shown and documented in the record.
(b) Upon request for a hearing by a recipient dissatisfied by a
proposed decision the recipient's financial assistance will be continued
or reinstated to provide no break in financial assistance until the date
of decision by the Superintendent or his designated representative in
accordance with 20.30(f).
(c) The Superintendent or his designated representative shall set a
date for the hearing within 10 days of the date of request for a
hearing, at a location convenient to both parties, and give written
notice to the applicant or recipient.
(d) The written notice of hearing date and location shall include:
(1) A statement of the issues.
(2) The applicant or recipient's right to be heard in person, or to
be represented by an authorized representative at no expense to the
Bureau.
(3) The applicant or recipient's right to present both oral and
written evidence, and written statements prior to or during the hearing.
(4) The applicant or recipient's right to confront and cross-examine
witnesses at the hearing.
(5) The applicant or recipient shall have the right of one
continuance of not more than 10 days with respect to the date of
hearing.
(6) The applicant or recipient's right to examine and copy, at a
reasonable time before and during the hearing, his case record as it
relates to the proposed action being contested.
(e) The Superintendent or his designated representative shall conduct
the hearing in an informal but orderly manner, record the hearing, and
provide the applicant or recipient with a transcript of the hearing upon
request.
(f) The Superintendent or his designated representative shall render
a written decision within 10 days of the completion of the hearing. The
written decision shall consist of the following:
(1) A written statement covering the evidence relied upon and reasons
for the decision.
(2) The applicant or recipient's right to further appeal from any
dissatisfied decision in accordance with procedures for appeals from
administrative actions set forth in part 2 of this chapter.
(g) An interested party wishing to make such an appeal may request
Bureau assistance in preparation of the appeal also as prescribed in
part 2 of this chapter.
25 CFR 20.30 PART 21 -- ARRANGEMENT WITH STATES, TERRITORIES, OR OTHER
AGENCIES FOR RELIEF OF DISTRESS AND SOCIAL WELFARE OF INDIANS
Sec.
21.1 Commissioner to negotiate contracts.
21.2 Contracts; by whom executed.
21.3 State or other contracting agency furnish plan of operation.
21.4 Standards of service.
21.5 Personnel.
21.6 Financial statement.
21.7 Cooperative services.
21.8 Use of Government property and facilities.
21.9 Information collection.
Authority: Sec. 3, 48 Stat. 596, as amended; 25 U.S.C. 454.
Source: 22 FR 10531, Dec. 24, 1957, unless otherwise noted.
25 CFR 21.1 Commissioner to negotiate contracts.
The Commissioner of Indian Affairs may negotiate with State,
territory, county or other Federal welfare agencies for such agencies to
provide welfare services as contemplated by the Act of June 4, 1936 (49
Stat. 1458; 25 U.S.C. 452), for Indians residing within a particular
State within the exterior boundaries of Indian reservations under the
jurisdiction of the Bureau of Indian Affairs or on trust or restricted
lands under the jurisdiction of the Bureau of Indian Affairs.
(29 FR 5828, May 2, 1964)
25 CFR 21.2 Contracts; by whom executed.
All contracts executed for the purposes of 21.1 shall be signed on
behalf of the United States by the Commissioner of Indian Affairs. The
proper officer of the State, territory, county or welfare agency shall
execute the contract on its behalf. Evidence of the authority of such
officer must accompany the contract. All contracts must be executed in
quintuplicate. (They shall become effective only after approval by the
Secretary of the Interior.)
25 CFR 21.3 State or other contracting agency furnish plan of
operation.
A plan executed by the proper State or other agency entering into the
contract shall accompany each instrument. This plan shall describe the
services and assistance to be rendered under the terms of the contract.
It shall include a budget showing the plan of expenditure of the funds
to be turned over to the State or other agency. Upon the approval of
the contract, no deviation from the plan shall be made unless approved
in advance by the Commissioner of Indian Affairs.
25 CFR 21.4 Standards of service.
Standards of aid, care, and service rendered to the Indians under the
contracts shall not be less than those standards maintained by the State
for other clients requiring similar aid, care and services.
25 CFR 21.5 Personnel.
The personnel employed for public welfare services to Indians under
the contract shall be subject to the State merit system and to the
approval of the Commissioner of Indian Affairs and the welfare
authorities of the State, unless otherwise provided in the contract.
25 CFR 21.6 Financial statement.
Thirty days after the close of each fiscal year, the State or other
agency to which funds have been furnished pursuant to the contract shall
submit to the Commissioner of Indian Affairs a detailed financial
statement showing all expenditures made pursuant to the contract. An
explanation shall be contained of any deviation from the plan originally
submitted by the agency. The records of the contractor shall be
available for inspection by representatives of the Bureau of Indian
Affairs.
25 CFR 21.7 Cooperative services.
The Bureau will maintain cooperative services through its
superintendents and other personnel to further the purposes of the
contract. When mutually agreed to in the contract, the Bureau may
maintain on its payroll one or more representatives whose duties shall
be described in the contract and the salary and expenses of any such
person or persons shall constitute part of the funds to be furnished to
the State or other contracting agency.
25 CFR 21.8 Use of Government property and facilities.
The contract shall specify the terms upon which property, other
facilities and equipment of the Government may be used by the State or
other agency. All contracts which provide for the use of Government
automobiles shall require that the particular State or other agency
shall be responsible for the return of the equipment in as good
condition as when received, excepting usual wear and tear and
depreciation and such agency shall be responsible for all damage or
injury done to property or persons and shall carry sufficient insurance
to cover same and expressly relieve the Government of any and all
liability for any such personal injury or property damages committed
while such automobile is in the possession of the contracting agency.
25 CFR 21.9 Information collection.
The information collection requirements contained in 21.3 and 21.6
have been approved by the Office of Management and Budget under 44
U.S.C. 3501 et seq. and assigned clearance numbers 1076-0113 and
1076-0110, respectively. The information in 21.3 is being collected to
determine how contract funds are utilized. The information will be used
to measure performance of the contractor and plan for future contracts.
The information in 21.6 is collected to specify the services or
assistance to be rendered and the plan for expenditure of funds to be
turned over to the state or agency. The information will be used to
determine the adequacy of services and utilization of the budget
provided by the contracting agency. Response is required to obtain a
benefit.
(53 FR 21994, June 13, 1988)
25 CFR 21.9 PART 23 -- INDIAN CHILD WELFARE ACT
25 CFR 21.9 Subpart A -- Purpose, Definitions, and Policy
Sec.
23.1 Purpose.
23.2 Definitions.
23.3 Policy.
23.4 Information collection.
25 CFR 21.9 Subpart B -- Notice of Involuntary Child Custody
Proceedings and Payment for Appointed Counsel
23.11 Notice.
23.12 Designated tribal agent for service of notice.
23.13 Payment for appointed counsel in state Indian child custody
proceedings.
25 CFR 21.9 Subpart C -- Grants to Indian Tribes and Indian
Organizations for Indian Child and Family Programs
23.21 Eligibility requirements.
23.22 Purpose of grants.
23.23 Obtaining application instructions and materials.
23.24 Content of application.
23.25 Application selection criteria.
23.26 Request from tribal governing body or Indian organization.
23.27 Grant approval limitation.
23.28 Submitting application.
23.29 Technical assistance.
23.30 Agency office review and recommendation.
23.31 Area office review and action.
23.32 Deadline for area office action.
23.33 Central office review and decision.
23.34 Deadline for Central office action.
23.35 Grant execution and administration.
23.36 Subgrants and subcontracts.
23.37 Multi-year developmental projects.
25 CFR 21.9 Subpart D -- General Grant Requirements
23.41 Applicability.
23.42 Reports and availability of information to Indians.
23.43 Matching share and agreements.
23.44 Performing personal services.
23.45 Penalties.
23.46 Fair and uniform services.
25 CFR 21.9 Subpart E -- Grant Revision, Cancellation or Assumption
23.51 Revisions or amendments of grants.
23.52 Assumption.
25 CFR 21.9 Subpart F -- Hearings and Appeals
23.61 Hearings.
23.62 Appeals from decision or action by Superintendent.
23.63 Appeals from decision or action by Area Director.
23.64 Appeals from decision or action by Commissioner.
23.65 Appellants fees.
23.66 Failure of agency or area office to act.
25 CFR 21.9 Subpart G -- Administrative Requirements
23.71 Uniform administrative requirements for grants.
25 CFR 21.9 Subpart H -- Administrative Provisions
23.81 Recordkeeping and information availability.
25 CFR 21.9 Subpart I -- Assistance to State Courts
23.91 Assistance in identifying witnesses.
23.92 Assistance in identifying interpreters.
23.93 Assistance in locating biological parents of Indian child after
termination of adoption.
Authority: 5 U.S.C. 301; secs. 463 and 465 of the Revised Statutes
(25 U.S.C. 2 and 9).
Source: 44 FR 45102, July 31, 1979, unless otherwise noted.
25 CFR 21.9 Subpart A -- Purpose, Definitions, and Policy
25 CFR 23.1 Purpose.
The purpose of the regulations in this part is to govern the
provision of administration and funding of the Indian Child Welfare Act
of 1978 (Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1901-1952).
25 CFR 23.2 Definitions.
(a) Act means the Indian Child Welfare Act, Pub. L. 95-608 (92 Stat.
3073), 25 U.S.C. 1901 et seq.
(b) Child custody proceeding, which shall mean and include:
(1) Foster care placement -- any action removing an Indian child from
its parent or Indian custodian for temporary placement in a foster home
or institution or the home of a guardian or conservator where the parent
or Indian custodian cannot have the child returned upon demand, but
where parental rights have not been terminated;
(2) Termination of parental rights -- an action resulting in the
termination of the parent-child relationship;
(3) Preadoptive placement -- the temporary placement of an Indian
child in a foster home or institution after the termination of parental
rights, but prior to or in lieu of adoptive placement; and
(4) Adoptive placement -- the permanent placement of an Indian child
for adoption, including any action resulting in a final decree of
adoption.
(5) Such term or terms shall not include a placement based upon an
act which, if committed by an adult, would be deemed a crime in the
jurisdiction where the act occurred or upon an award, in a divorce
proceeding, of custody to one of the parents. It does include status
offenses, such as truancy, incorrigibility etc.
(c) Extended family member shall be as defined by the law or custom
of the Indian child's tribe or, in the absence of such law or custom,
shall be a person who has reached the age of eighteen and who is the
Indian child's grandparent, aunt or uncle, brother or sister,
brother-in-law or sister-in-law, niece or nephew, first or second
cousin, or stepparent.
(d) Indian means: (1) Jurisdictional Purposes: For purposes of
matters related to child custody proceedings any person who is a member
of an Indian tribe, or who is an Alaska Native and a member of a
Regional Corporation as defined in section 7 or the Alaska Native Claims
Settlement Act (85 Stat. 688, 689).
(2) Service eligibility for on or ''near'' reservation Children and
Family Service Programs. For purposes of Indian child and family
service programs under section 201 of the Indian Child Welfare Act (92
Stat. 3075), any person who is a member, or a one-fourth degree or more
blood quantum descendant of a member of any Indian tribe.
(3) Service eligibility for off-reservation Children and Family
Service Programs: For the purpose of Indian child and family programs
under section 202 of the Indian Child Welfare Act (92 Stat. 3073) any
person who is a member of a tribe, band, or other organized group of
Indians, including those tribes, bands, or groups terminated since 1940
and those recognized now or in the future by the state in which they
reside, or who is a descendent, in the first or second degree, of any
such member, or is an Eskimo or Aleut or other Alaska Native, or is
considered by the Secretary of the Interior to be an Indian for any
purpose, or is determined to be an Indian under regulations promulgated
by the Secretary of Health, Education, and Welfare. Membership status
is to be determined by the tribal law, ordinance, or custom.
(e) Indian child means any unmarried person who is under age eighteen
and is either (1) a member of an Indian tribe, or (2) is eligible for
membership in an Indian tribe and is the biological child of a member of
an Indian tribe.
(f) Indian child's tribe means (1) the Indian tribe in which an
Indian child is a member or is eligible for membership or (2) in the
case of an Indian child who is a member of or is eligible for membership
in more than one tribe, the Indian tribe with which the Indian child has
the more significant contacts. (Refer to Guidelines for State
Courts-Indian Child Custody Proceedings.)
(g) Indian custodian means any Indian person(s) who has legal custody
of an Indian child under tribal law or custom or under state law or to
whom temporary physical care, custody, and control has been transferred
by the parent of such child.
(h) Indian organization means any group, association, partnership,
corporation, or other legal entity owned or controlled by Indians, or a
majority of whose members are Indians.
(i) Indian tribe means any Indian tribe, band, nation or other
organized group or community of Indians recognized as eligible for the
services provided to Indians by the Secretary because of their status as
Indians, including any Alaska Native village as defined in section 3(c)
of the Alaska Native Claims Settlement Act (85 Stat. 688, 689), as
amended.
(j) Parent means any biological parent or parents of an Indian child
or any Indian person who has lawfully adopted an Indian child, including
adoptions under tribal law or custom. It does not include the unwed
father where paternity has not been acknowledged or established.
(k) Reservation means Indian country as defined in section 1151 of
title 18 U.S. Code, and any lands not covered under such section, title
to which is either held by the United States in trust for the benefit of
any Indian tribe or individual subject to a restriction by the United
States against alienation.
(l) State Court means any agent or agency of a State including the
District of Columbia or any territory or possession of the United States
or any political subdivisions empowered by law to terminate parental
rights or to make foster care placements, preadoptive placements, or
adoptive placements.
(m) Tribal court means a court with jurisdiction over child custody
proceedings and which is either a court of Indian Offenses, a court
established and operated under the code or custom of an Indian tribe, or
any other administrative body of a tribe which is vested with authority
over child custody proceedings.
(n) Multi-service Indian center means an off-reservation social
service center having an established social service delivery program;
or, if located in an officially designated ''near'' reservation area, a
social service center serving a clientele of varied tribal affiliations,
but with no more than one-half of its clientele from the tribe which
requested designation of the ''near'' reservation area.
(o) For other applicable definitions refer to 25 CFR 20.1 and 271.2.
(44 FR 45102, July 31, 1979, as amended at 50 FR 12529, Mar. 29,
1985)
25 CFR 23.3 Policy.
The policy of the Act and of these regulations is to protect Indian
children from arbitrary removal from their families and tribal
affiliations by establishing procedures to insure that measures to
prevent the breakup of Indian families are followed in child custody
proceedings. This will insure protection of the best interests of
Indian children and Indian families by providing assistance and funding
to Indian tribes and Indian organizations in the operation of child and
family service programs which reflect the unique values of Indian
culture and promote the stability and security of Indian families. In
administering the grant authority for Indian Child and Family Programs
it shall be Bureau policy to emphasize the design and funding of
programs to promote the stability of Indian families.
25 CFR 23.4 Information collection.
(a) The information collection requirement contained in 23.13 has
been approved by the Office of Management and Budget under 44 U.S.C.
3501 et seq. and assigned clearance number 1076-0111. The information
is collected in a notice from the court in order to certify payment of
appointed counsel in the child custody proceedings. The information
will be used to determine if an individual Indian involved in the Indian
child custody proceeding is eligible for payment of appointed counsel's
attorneys fees and to determine if any state statutes provide for
coverage of attorney fees under these circumstances. Response is
required to obtain a benefit.
(b) The information collection requirements contained in 23.28 are
those necessary to comply with the application requirements of Office of
Management and Budget (OMB) Circular No. A-102. The Standard Form 424
and attachments prescribed by such circular are approved by OMB under 44
U.S.C. 3501 et seq. and assigned approval number 0348-0006. Section
23.24 describes the types of information that would satisfy the
application requirements of Circular A-102 for this grant program.
Information necessary for an application for Federal assistance will be
submitted on Standard Form 424 which may be obtained with application
materials in accordance with 25 CFR 23.23. This information is being
collected for the purpose of applying for Federal assistance. The
information will be used in selecting the recipients and determining the
amount of the Indian Child Welfare Act grant awards. The obligation to
respond is a requirement to obtain the benefits.
(47 FR 39980, Sept. 10, 1982, as amended at 50 FR 12529, Mar. 29,
1985; 53 FR 21994, June 13, 1988)
25 CFR 23.4 Subpart B -- Notice of Involuntary Child Custody Proceedings and Payment for Appointed Counsel
25 CFR 23.11 Notice.
(a) If the identity or location of the parents, Indian custodians or
the Indian child's tribe cannot be determined, notice of the pendency of
any involuntary child custody proceeding involving an Indian child in a
state court shall be sent by registered mail with return receipt
requested to the appropriate address listed in paragraph (b) of this
section.
(b)(1) For proceedings in Alabama, Connecticut, Delaware, District of
Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North
Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee,
Vermont, Virginia, West Virginia or any territory or possession of the
United States, notice should be sent to the following address: Eastern
Area Director, Bureau of Indian Affairs, 1951 Constitution Avenue NW.,
Washington, DC 20245.
(2) For proceedings in Illinois, Indiana, Iowa, Michigan, Minnesota,
Ohio or Wisconsin, notice should be sent to the following address:
Minneapolis Area Director, Bureau of Indian Affairs, Chamber of Commerce
Building -- 6th Floor, 15 South Fifth Street, Minneapolis, Minnesota
55402.
(3) For proceedings in Nebraska, North Dakota, or South Dakota,
notice should be sent to the following address: Aberdeen Area Director,
Bureau of Indian Affairs, 115-4th Avenue, SE., Aberdeen, South Dakota
57401.
(4) For proceedings in Kansas, Texas, and the western Oklahoma
counties of Alfalfa, Beaver, Beckman, Blain, Bryan, Caddo, Canadian,
Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield,
Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln,
Logan, Major, Noble, Oklahoma, Pawnee, Payne, Pottawatomie, Roger Mills,
Texas, Tillman, Washita, Woods, and Woodward, notice should be sent to
the following address: Anadarko Area Director, Bureau of Indian
Affairs, P.O. Box 368, Anadarko, Oklahoma 73005.
(5) For proceedings in Montana or Wyoming notice should be sent to
the following address: Billings Area Director, Bureau of Indian
Affairs, 316 N. 26th Street, Billings, Montana 59101.
(6) For proceedings in Colorado or New Mexico, (exclusive of those
New Mexico counties listed in paragraph (b)(9) below), notice should be
sent to the following address: Albuquerque Area Director, Bureau of
Indian Affairs, 5301 Central Avenue, NE., P.O. Box 8327, Albuquerque,
New Mexico 87108.
(7) For proceedings in Alaska notice should be sent to the following
address: Juneau Area Director, Bureau of Indian Affairs, P.O. Box
3-8000, Juneau, Alaska 99801.
(8) For proceedings in Arkansas, Missouri, and all Oklahoma counties
not listed under paragraph (b)(4) of this section, notice should be sent
to the following address: Muskogee Area Director, Bureau of Indian
Affairs, Federal Building, Muskogee, Oklahoma 74401.
(9) For proceedings in the Arizona counties of Apache, Coconino, and
Navajo; the New Mexico counties of McKinley, San Juan, and Socorro;
and the Utah county of San Juan, notice should be sent to the following
address: Navajo Area Director, Bureau of Indian Affairs, Window Rock,
Arizona 86515.
(10) For proceedings in Arizona (exclusive of those counties listed
in paragraph (b)(9) of this section), Nevada, or Utah (exclusive of that
county listed in paragraph (b)(9) of this section), notice should be
sent to the following address: Phoenix Area Director, Bureau of Indian
Affairs, P.O. Box 7007, Phoenix, Arizona 85011.
(11) For proceedings in Idaho, Oregon or Washington, notice should be
sent to the following address: Portland Area Director, Bureau of Indian
Affairs, 1425 N.E. Irving Street, Portland, Oregon 97208.
(12) For proceedings in California or Hawaii, notice should be sent
to the following address: Sacramento Area Director, Bureau of Indian
Affairs, Federal Office Building, 2800 Cottage Way, Sacramento,
California 95825.
(c) Notice shall include the following information if known:
(1) Name of the Indian child, birthdate, birthplace,
(2) Indian child's tribal affiliation,
(3) Names of Indian child's parents or Indian custodians, including
birthdate, birthplace, and mother's maiden name, and
(4) A copy of the petition, complaint or other document by which the
proceeding was initiated.
(d) Upon receipt of the notice, the Bureau shall make a diligent
effort to locate and notify the Indian child's tribe and the Indian
child's parents or Indian custodians. Such notice may be by registered
mail with return receipt requested or by personal service and shall
include the information provided under paragraph (c) of this section in
addition to the following:
(1) A statement of the right of the biological parents, Indian
custodians and the Indian tribe to intervene in the proceedings.
(2) A statement that if the parent(s) or Indian custodian(s) is
unable to afford counsel, counsel will be appointed to represent them.
(3) A statement of the right of the parents, the Indian custodians
and the child's tribe to have, upon request, up to twenty additional
days to prepare for the proceedings.
(4) The location, mailing address and telephone number of the court.
(5) A statement of the right of the parents, Indian custodians and
the Indian child's tribe to petition the court for transfer of the
proceeding to the child's tribal court, and their right to refuse to
permit the case to be transferred.
(6) A statement of the potential legal consequences of the
proceedings on the future custodial and parental rights of the parents
or Indian custodians.
(7) A statement that, since child custody proceedings are usually
conducted on a confidential basis, tribal officials should keep
confidential the information contained in the notice concerning the
particular proceeding and not reveal it to anyone who does not need the
information in order to exercise the tribe's rights under the Act.
(e) The Bureau shall have ten days, after receipt of the notice from
the persons initiating the proceedings, to notify the child's tribe and
parents or Indian custodians and send a copy of the notice to the court.
If within the ten-day time period the Bureau is unable to verify that
the child is in fact an Indian, or meets the criteria of an Indian child
as defined in section (4) of the Act, or is unable to locate the parents
or Indian custodians, the Bureau shall so inform the court prior to
initiation of the proceedings and state how much more time, if any, it
will need to complete the search. The Bureau shall complete its search
efforts even if those efforts cannot be completed before the child
custody proceeding begins.
(f) Upon request from a potential participant in an anticipated
Indian child custody proceeding, the Bureau shall attempt to identify
and locate the Indian child's tribe, parents or Indian custodians for
the person making the request.
(44 FR 45102, July 31, 1979, as amended at 50 FR 12530, Mar. 29,
1985)
25 CFR 23.12 Designated tribal agent for service of notice.
Any Indian tribe entitled to notice may designate by resolution, or
by such other form as the tribal constitution or current practice
requires, an agent for service of such notice other than the tribal
chairman and send a copy of the designation to the Secretary. The
Secretary shall publish the name and address of the designated agent in
the Federal Register on an annual basis. A current listing of such
agents will be maintained by the Secretary and will be available through
the Area Offices.
25 CFR 23.13 Payment for appointed counsel in state Indian child
custody proceedings.
(a) When a state court appoints counsel for an indigent party in an
Indian child custody proceeding, for which the appointment of counsel is
not authorized under state law, the court shall send written notice of
the appointment to the Bureau of Indian Affairs Area office designated
for that state in 23.11 of this part. The notice shall include the
following:
(1) Name, address and telephone number of attorney who has been
appointed.
(2) Name and address of client for whom counsel is appointed.
(3) Relationship of client to child.
(4) Name of Indian child's tribe.
(5) Copy of the petition or complaint.
(6) Certification by the court that state law makes no provision for
appointment of counsel in such proceedings.
(7) Certification by the court that the client is indigent.
(b) The Area Director shall certify that the client is eligible to
have his or her appointed counsel compensated by the Bureau of Indian
Affairs unless:
(1) The litigation does not involve a child custody proceeding as
defined in 25 U.S.C. 1903(1);
(2) The child who is the subject of the litigation is not an Indian
child as defined in 25 U.S.C. 1903(4);
(3) The client is neither the Indian child who is the subject of the
litigation, the Indian child's parent as defined in 25 U.S.C. 1903(9),
or the child's Indian custodian as defined in 25 U.S.C.1903(6);
(4) State law provides for appointment of counsel in such
proceedings;
(5) The notice of the Area Director of appointment of counsel is
incomplete; or
(6) No funds are available for such payments.
(c) No later than 10 days after receipt of the notice of appointment
of counsel, the Area Director shall notify the court, the client and the
attorney in writing whether the client has been certified as eligible to
have his or her attorney fees and expenses paid by the Bureau of Indian
Affairs. In the event that certification is denied, the notice shall
include written reasons for that decision together with a statement that
the Area Director's decision may be appealed to the Commissioner of
Indian Affairs under the provisions of the 25 CFR part 2.
(d) When determining attorney fees and expenses the court shall:
(1) Determine the amount of payments due appointed counsel by the
same procedures and criteria it uses in determining the fees and
expenses to be paid appointed counsel in juvenile delinquency
proceedings.
(2) Submit approved vouchers to the Area Director who certified
eligibility for Bureau payment together with the court's certification
that the amount requested is reasonable under the state standards and
considering the work actually performed in light of the criteria that
apply in determining fees and expenses for appointed counsel in juvenile
delinquency proceedings.
(e) The Area Director shall authorize the payment of attorney fees
and expenses in the amount requested in the voucher approved by the
court unless:
(1) The court has abused its discretion under state law in
determining the amount of the fees and expenses; or
(2) The client has not been previously certified as eligible under
paragraph (c) of this section; or
(3) The voucher is submitted later than ninety (90) days after
completion of the legal action involving a client certified as eligible
for payment of legal fees under paragraph (b) of this section.
(f) No later than 15 days after receipt of a payment voucher the Area
Director shall send written notice to the court, the client and the
attorney stating the amount of payment, if any, that has been
authorized. If the payment has been denied or the amount authorized is
less than the amount requested in the voucher approved by the court, the
notice shall include a written statement of the reasons for the decision
together with a statement that the decision of the Area Director may be
appealed to the Commissioner under the procedures of 25 CFR part 2.
(g) Failure of the Area Director to meet the deadlines specified in
paragraphs (c) and (f) of this section may be treated as a denial for
purposes of appeal under paragraph (f) of this section.
(44 FR 45102, July 31, 1979, as amended at 50 FR 12530, Mar. 29,
1985)
25 CFR 23.13 Subpart C -- Grants to Indian Tribes and Indian
Organizations for Indian Child and Family Programs
Authority: 5 U.S.C. 301; secs. 463 and 465 of the Revised Statutes
(25 U.S.C. 2 and 9).
Source: 47 FR 39980, Sept. 10, 1982, unless otherwise noted.
25 CFR 23.21 Eligibility requirements.
(a) The governing body of any tribe or tribes, or any off-reservation
Indian organization, or any multi-service Indian center located
off-reservation or in an area designated by the Commissioner as ''near''
reservation may apply for a grant individually or as a consortium under
this part.
(b) Each tribe, off-reservation Indian organization, multi-service
Indian center or consortium may submit only one grant application during
an application period. The application period during which grant
applications will be accepted shall be published as a notice in the
Federal Register.
(50 FR 12530, Mar. 29, 1985)
25 CFR 23.22 Purpose of grants.
Grants are for the purpose of:
(a) Establishment and operation of Indian child and family service
programs. In accordance with the policy in 23.3 to emphasize the
design and funding of programs to promote the stability of Indian
families, program priorities have been established to be utilized by
Area offices in the prioritization process when more than one
application obtains the same competitive score pursuant to 23.24 and
23.25. The program prorities are listed below in descending order.
(1) Operation and maintenance of facilities for the counseling and
treatment of Indian families and for the temporary custody of Indian
children.
(2) Family assistance (including homemaker and home counselors), day
care, afterschool care, recreational activities, respite care, and
employment.
(3) A system for tribes or Indian organizations to license or
otherwise regulate Indian foster and adoptive homes or the preparation
and implementation of child welfare codes within their legal
jurisdictional authority, or pursuant to a state-tribal and/or Indian
organization agreement.
(4) Guidance, legal representation, and advice to Indian families
involved in tribal, state, or Federal child custody proceedings.
(5) Employment of professional and other trained personnel to assist
the tribal court in the disposition of domestic relations and child
welfare matters.
(6) Education and training of Indians (including tribal court judges
and staff) in skills relating to child and family assistance and service
programs.
(7) Subsidy programs under which Indian adoptive children may be
provided support comparable to that for which they would be eligible as
foster children, taking into account the appropriate state standards of
support for maintenance and medical needs.
(8) Home improvements programs.
(9) Other programs designed to meet the purposes of the Act.
Planning or feasibility grants may be undertaken for any one of the
above listed program purposes. These applications will be ranked
according to the priority of the program under consideration.
(b) Providing non-Federal matching shares for other Federal financial
assistance programs as prescribed in 23.43. The order of priority of
matching share grants will correlate with the purpose of the program
receiving the match.
25 CFR 23.23 Obtaining application instructions and materials.
Application instructions and related application materials may be
obtained from Superintendents, Area Directors or the Commissioner.
25 CFR 23.24 Content of application.
Application for a grant under this part shall include:
(a) Name and address of Indian tribal governing body(s) or Indian
organization applying for a grant,
(b) Descriptive name of project,
(c) Grant funds requested,
(d) The unduplicated client service population directly benefiting
from the project,
(e) Length of project,
(f) Beginning date,
(g) Project budget categories or items,
(h) Program narrative statement,
(i) Certification or evidence of request by Indian tribe or board of
Indian organization,
(j) Evidence of substantial community support for the proposed
program,
(k) Name and address of the Bureau office to which an application is
submitted,
(l) Date application is submitted to the Bureau, and
(m) Additional information pertaining to grant applications for funds
to be used as matching shares.
25 CFR 23.25 Application selection criteria.
(a) The Commissioner or his/her designated representative shall
select for grants under this part those proposals which will in his/her
judgment best promote the purposes of title II of the Act. Such
selection will be made through a review process in which each
application will be scored competitively, taking into consideration the
content of the application as required in 23.24, and the following
factors:
(1) The degree to which an applicant demonstrates in the program
narrative an understanding of the social service problems or issues
impacting the client population which the applicant proposes to serve.
(2) The degree to which and the methods by which the applicant
intends to fulfill the purpose of the grant, specifically relating the
goals and the objectives of the program to the issues and problems
impacting the client population.
(3) Whether the applicant presents narrative, quantitative data, and
demographics of the client population to be served. Examples of such
data include:
(i) The number of actual or estimated Indian child placements outside
the home;
(ii) The number of actual or estimated Indian family breakups; and
(iii) The need for a directly related preventive program.
(4) The relative accessibility which the Indian population to be
served under a specific proposal already has to existing child and
family service programs emphasizing prevention of Indian family breakup.
Factors to be considered in determining accessibility include:
(i) Cultural barriers;
(ii) Discrimination against Indians;
(iii) Inability of potential Indian clientele to pay for services;
(iv) Lack of programs which provide free service to indigent
families;
(v) Technical barriers created by existing public or private
programs;
(vi) Availability of transportation to existing programs;
(vii) Distance between the Indian community to be served under the
proposal and the nearest existing programs;
(viii) Quality of service provided to Indian clientele; and
(ix) Relevance of service provided to specific needs of Indian
clientele.
(5) The proper justification of the extent to which the proposed
program would duplicate any existing child and family service program
emphasizing prevention of Indian family breakup, taking into
consideration all of the factors listed in paragraphs (a) (1), (2), (3)
and (4) of this section. Proper justification must be given for any
duplication of services.
(6) Evidence of substantial community support for the proposed
program from the Indian community or communities to be served. Such
support may be evidenced by:
(i) Letters of support from individuals and families to be served;
(ii) Local Indian community representation in and control over the
Indian entity requesting the grant;
(iii) Letters from local social service or social service related
agencies familiar with the applicant's past work experience.
(7) The explanation of proposed facilities and of the structure of
the tribal or Indian organization including the structure of the
particular unit within the organization requesting grant funds, and the
position description of any position to be funded with grant funds,
identifying qualifications, responsibilities, and lines of supervision.
(8) The reasonableness and relevance of the estimated costs of the
proposed program or service.
(b) Two or more grants receiving the same competitive score will be
prioritized pursuant to 23.22.
(c) Selection for grants under this part for ''on or near''
reservation programs shall be limited to the governing body of the tribe
to be served by the grant, or the governing body of a multi-service
Indian center. The governing body of the tribe may make a subgrant or
subcontract with another organizational entity, including but not
limited to an Indian organization, subject to the provisions of 23.26.
(d) An Indian organization may make a subgrant or subcontract subject
to the provisions of 23.36.
(47 FR 39980, Sept. 10, 1982, as amended at 50 FR 12530, Mar. 29,
1985)
25 CFR 23.26 Request from tribal governing body or Indian organization.
(a) The Bureau shall only make a grant under this part for an ''on or
near'' reservation program when officially requested to do so by a
tribal governing body. This request may be in the form of a tribal
resolution, an endorsement included in the grant application or such
other forms as the tribal constitution or current practice requires.
(b) The Bureau shall only make a grant under this part for an
off-reservation program when officially requested to do so by the
governing body of an off-reservation Indian organization. This request
may be in one of the forms prescribed in paragraph (a) of this section.
(c) The Bureau shall make a grant under this part for a multi-service
Indian center program located off-reservation or in a designated
''near'' reservation area when officially requested to do so by the
governing body of the multi-service Indian center. The request may be
in one of the forms prescribed in paragraph (a) of this section.
(47 FR 39980, Sept. 10, 1982, as amended at 50 FR 12530, Mar. 29,
1985)
25 CFR 23.27 Grant approval limitation.
(a) Area Office preliminary approval. Authority for preliminary
approval of a grant application under this part shall be with the Area
Director when the intent, purpose and scope of the grant proposal
pertains solely to an Indian tribe or tribes, or to an Indian
organization representing an off-reservation community or multi-service
Indian Center located within that Area Director's administrative
jurisdiction.
(b) Central Office preliminary approval. Authority for preliminary
approval of a grant application under this part shall be with the
Commissioner when the intent, purpose and scope of the grant proposal
pertains to Indian tribes, off-reservation communities or Indian
organizations, or multi-service Indian centers representing more than
one Area Office's administrative jurisdiction, but located within the
Commissioner's overall jurisdiction.
(c) An application shall not receive a preliminary approval under
this section unless a review of the application determines that it:
(1) Contains all the information required in 23.24 and,
(2) Receives at least the minimum score in a competitive review under
the scoring process using the selection criteria explained in 23.25.
The minimum score will be established by the Central office prior to
each application period.
(3) If an applicant has been a grantee during the year immediately
preceeding the year for which an application is being made, and has made
an application to continue essentially the same service program,
satisfactory evaluation(s) from the Area office review of the program
must be provided in addition to the other materials required in this
sub-section.
(d) Approval for funding. Approval for funding of all grant
applications under this part shall be with the Commissioner or his/her
designated representative.
(e) Actual funding of approved grant applications shall be subject to
the availability of funds. These funds will include those which are:
(1) Directly appropriated for implementation of this Act.
Distribution of these appropriated and available funds will be based
upon a formula designed to ensure insofar as possible that all
applicants approved for funding will receive a proportionate share of
the available funds. This formula will be published annually as a
Federal Register Notice.
(2) Appropriated under other Acts for Bureau programs which are
related to the purposes prescribed in 23.22.
(47 FR 39980, Sept. 10, 1982, as amended at 50 FR 12530, Mar. 29,
1985)
25 CFR 23.28 Submitting application.
(a) Agency office. An application for a grant under this part for an
''on or near'' reservation program shall be initially submitted to the
appropriate Superintendent for review and recommendation as prescribed
in 23.30. Programs encompassing more than one Agency office
jurisdiction shall be submitted simultaneously to each affected Agency
office, and to the Area office. Each Agency office will review and make
a recommendation to the Area office for approval or disapproval.
(b) Area office. An application for a grant under this part for an
off-reservation program shall be initially submitted to the appropriate
Area Director for review and action as prescribed in 23.31.
(c) Programs encompassing more than one Area office jurisdiction
shall submit applications simultaneously to each affected Area office
and the Central office. Each Area office will review and make a
preliminary recommendation to the Central office for approval or
disapproval.
25 CFR 23.29 Technical assistance.
(a) Technical assistance in the development of the grant proposal may
be requested by an applicant from the office to which an applicant will
be submitting an application, as prescribed in 23.28, up to ten (10)
days prior to the close of the application period.
(b) Modifications of the grant application received after the close
of the application period will not be considered in the review and
action on the application as prescribed in 23.30, 23.31 and 23.33.
25 CFR 23.30 Agency office review and recommendation.
(a) Recommendation for approval or disapproval of a grant under this
part shall be made by the Superintendent when the intent, purpose and
scope of the grant proposal pertains to or involves an Indian tribe or
tribes located within that Superintendent's administrative jurisdiction.
(b) Upon receipt of an application for a grant under this part, the
Superintendent shall complete and sign the Agency/Area office
certification, return it to the applicant and forward the application
and a copy of the Agency/Area office certification to the Area office
within ten (10) working days of arrival of the application at the Agency
office. In completing the certification form the Superintendent shall:
(1) Acknowledge receipt of the application.
(2) Assess the completed application for appropriateness of purpose
as prescribed in 23.22, and for overall feasibility.
(3) Review the application for completeness of information and, if
time permits prior to the close of the grant application period, request
any additional information which may be required to make a
recommendation. The Superintendent must only consider information
received prior to the close of the grant application period in making
his/her recommendation.
(4) Certify on the Agency/Area office certification form as to the
completeness of the application.
(5) Recommend approval or disapproval following a review of the
completed application with explanation of the recommendation.
(6) In instances where a joint application is made by tribes
representing more than one Agency office administrative jurisdiction,
each respective Superintendent shall make his/her recommendation for
approval or disapproval, and shall forward the application and
Agency/Area office certification form to the Area Director for further
action.
25 CFR 23.31 Area office review and action.
(a) Upon receipt of an application for a grant requiring Area office
preliminary approval, the Area Director shall:
(1) Acknowledge receipt of the application to the applicant in
writing within ten (10) days of its arrival at the Area office.
(2) Review the Agency/Area office certification form which is
required in 23.30 Area Directors will be responsible for the completion
of the Agency/Area office certification for any application initially
submitted to the Area office, including off-reservation Indian
organizations and multi-Area applications.
(3) Assess the completed application for appropriateness and priority
of purpose as prescribed in 23.22, and for overall feasibility, through
a selection committee process.
(4) Give preliminary approval or disapproval of the application
following full assessment of the completed application as prescribed in
23.24 and 23.25 and forward grant decisions to the Central office for
further action, along with a copy of the Standard Form 424, Request for
Federal Assistance, for each grant application and the Agency/Area
office certification form.
(b) In instances where a joint application is made by tribes
representing more than one Area office administrative jurisdiction, each
respective Area Director shall be responsible for completion of the
Agency/Area office certification and shall make his/her recommendation
for approval or disapproval and shall forward the application and
recommendation to the Commissioner for further action.
(c) Upon taking action prescribed in paragraphs (a) and (b) of this
section, the Area Director shall promptly notify the applicant, in
writing, as to the action taken. If the application is disapproved, the
Area Director will include in the written notice the specific reasons
therefor.
25 CFR 23.32 Deadline for area office action.
Within thirty (30) days of receipt of an application for a grant
under this part, the Area Director shall take action as prescribed in
23.31. Extension of this deadline will require consultation with, and
written consent of, the applicant.
25 CFR 23.33 Central office review and decision.
(a) Central office preliminary approval. Upon receipt of an
application for a grant requiring Central office preliminary approval,
the Commissioner shall:
(1) Review the application following the applicable review procedures
prescribed in 23.31.
(2) Review Area office recommendations as they pertain to the
application.
(3) Approve or disapprove the application.
(4) Promptly notify the applicant in writing as to the approval or
disapproval of the application. If the application is disapproved, the
Commissioner will include in the written notice the specific reasons
therefor.
(b) Approval for funding. When the Commissioner has received the
applications from each Area Director which have been preliminarily
approved and scored, pursuant to 23.24 and 23.25, and prioritized in
accordance with 23.22, the Commissioner shall determine which
applications shall receive funding, as required in paragraph (d) of
23.27. The Commissioner may utilize the priority established in 23.22
when grant applications from different Areas have obtained the same
score in the competitive review process and are being considered for
funding. Some preliminarily approved applications may not be funded
depending on the level of congressional appropriations.
25 CFR 23.34 Deadline for Central office action.
Within thirty (30) days of receipt of an application for a grant
under this part requiring Central office preliminary approval the
Commissioner shall take action as prescribed in paragraph (a) of 23.33.
Extension of this deadline will require consultation with, and written
consent of, the applicant.
25 CFR 23.35 Grant execution and administration.
(a) Grant approved pursuant to 23.27(a) shall be executed and
administered at the Area Office level.
(b) Grants approved pursuant to 23.27(b) shall be executed and
administered at the Central office level provided that the Commissioner
may designate an Area Office to execute or administer such a grant.
25 CFR 23.36 Subgrants and subcontracts.
The grantee may make subgrants or subcontracts under this part
provided that such subgrants or subcontracts are for the purpose for
which the grant was made and that the grantee retains administrative and
financial responsibility over the activity and the funds.
25 CFR 23.37 Multi-year developmental projects.
(a) The Assistant Secretary -- Indian Affairs may approve multi-year
developmental projects for project periods of three years, subject to:
(1) The availability of funds in accordance with 23.27(e);
(2) Grantee compliance with the past performance requirements of
23.27(c)(3); and
(3) The determination by the Bureau that continued funding
constitutes the best use of available funds.
(b) Prior to the beginning of the program year in which grants for
multi-year projects will be awarded, the Bureau will publish in the
Federal Register, an announcement of the grant application process for
the year, including priorities, applicant eligibility criteria, the
schedule for and required contents of applications, the funding formula
and evaluation criteria for multi-year projects.
(c) The formula published in the Federal Register in accordance with
23.27(e)(1) of this part shall indicate the manner in which the funding
shall be established for each year of a multi-year project.
(d) Based on the announcement described in subsection (b) of this
section, the applicant shall prepare an application in accordance with
23.24, 23.25 and 23.26 of this part in order to enable the Bureau to
make a judgment of the relevance and potential effectiveness of the
proposed activities for the duration of the project. The application at
a minimum shall:
(1) Specify the proposed length of the project period;
(2) Demonstrate a developmental approach in the delivery of social
services;
(3) Provide information on activities for each year of the proposed
project;
(4) Comply with 23.27(c) if the applicant has been a grantee during
the preceding year and has made an application to continue essentially
the same service program.
(e) The renewal application for the second and third years of a
multi-year project shall update the information required in 23.24,
23.25, 23.26 and 23.27(c)(3) of this part. Requests from tribal
governing bodies or Indian organizations as required under 23.26 need
not be resubmitted on a yearly basis if such requests were initially
written to cover the duration of the multi-year project.
(f) Funding after the first year of a multi-year project will be
dependent upon the grantee's progress in achieving project objectives
according to the approved work plan submitted in the first year of
application.
(g) If, in the judgment of the Assistant Secretary, the grantee's
proposed program activity for each year of the multi-year project is
acceptable, funding shall be approved in accordance with 23.27(e)(1) of
this part, depending on the appropriation for that grant program year,
the grantee's approved funding request, and the grantee's progress in
achieving the objectives of the project according to the work plan
submitted in the initial year of multi-year project.
(h) In accordance with 23.29, an applicant may request technical
assistance on the application and renewal process from Bureau Area
and/or Agency offices.
(i) If multi-year projects are not renewed for a second or third year
of funding, the grantee will not be eligible to apply for a multi-year
project until the next multi-year project announcement, but may apply in
any subsequent annual grant cycle for projects other than those proposed
in the original developmental grant.
(j) The grant administration provisions of 23.21 through 23.71
shall apply to grants for multi-year projects.
(50 FR 51246, Dec. 16, 1985)
25 CFR 23.37 Subpart D -- General Grant Requirements
25 CFR 23.41 Applicability.
The general requirements for grant administration in part 276 are
applicable to all Bureau grants provided to tribal governing body(s) and
to Indian organizations under this part, except to the extent
inconsistent with an applicable Federal statute, regulation, or Office
of Management and Budget grant circular.
(47 FR 39983, Sept. 10, 1982)
25 CFR 23.42 Reports and availability of information to Indians.
Any tribal governing body or Indian organization receiving a grant
under this part shall make information and reports concerning that grant
available to the Indian people which it serves or represents. Access to
these data shall be requested in writing and shall be made available
within 10 days of receipt of that request, subject to any exceptions
provided for in the Freedom of Information Act (5 U.S.C. 552), as
amended by the Act of November 21, 1974 (Pub. L. 93-502; 88 Stat.
1561).
25 CFR 23.43 Matching share and agreements.
(a) Grant funds provided under this part for ''on or near''
reservation programs may be used as non-Federal matching share in
connection with funds provided under titles IVB and XX of the Social
Security Act or under any other Federal financial assistance programs
which contribute to the purposes specified in 23.22.
(b) Superintendents, Area Directors and their designated
representatives will, upon tribal or Indian organization request, assist
in obtaining information concerning other Federal agencies with matching
fund programs and will, upon request, provide technical assistance in
developing applications for submission to those Federal agencies.
(c) In the establishing, operating and funding of Indian child and
family service programs ''on or near'' or off-reservation, the Secretary
of the Interior may enter into agreements with the Secretary of Health
and Human Services for the use of funds appropriated for similar
programs of the Department of Health and Human Services.
(47 FR 39983, Sept. 10, 1982)
25 CFR 23.44 Performing personal services.
Any grant provided under this part may include provisions for the
performance of personal services which would otherwise be performed by
Federal employees.
25 CFR 23.45 Penalties.
If any officer, director, agent, employee of, or anyone connected
with any recipient of a grant, subgrant, contract or subcontract under
this part, does embezzle, willfully misapply, steal, or obtain by fraud
any of the money, funds, assets, or property which are the subject of
such a grant, subgrant, contract or subcontract, he or she may be
subject to penalties as provided in 18 U.S.C. 1001.
25 CFR 23.46 Fair and uniform services.
Any grant provided under this part shall include provisions to assure
the fair and uniform provision by the grantee of services and assistance
to all Indians included within or affected by the intent, purpose and
scope of that grant.
25 CFR 23.46 Subpart E -- Grant Revision, Cancellation or Assumption
25 CFR 23.51 Revisions or amendments of grants.
(a) Requests for budget revisions or amendments to grants awarded
under this part shall be made as provided in 276.14 of this chapter.
(b) Requests for revisions or amendments to grants provided under
this part, other than budget revisions referred to in paragraph (a) of
this section, shall be made to the Bureau officer responsible for
approving the grant in its original form. Upon receipt of a request for
revisions or amendments to grants, the responsible Bureau officer shall
follow precisely the same review procedures and time specified in
23.30.
(47 FR 39984, Sept. 10, 1982)
25 CFR 23.52 Assumption.
(a) When the Bureau cancels a grant for cause as specified in 276.15
of this chapter, the Bureau may assume control or operation of the grant
program, activity or service. However, the Bureau shall not assume a
grant program, activity or service that it did not administer before
tribal grantee control unless the tribal grantee and the Bureau agree to
the assumption.
(b) When the Bureau assumes control or operation of a grant program
cancelled for cause, the Bureau may decline to enter into a new grant
agreement until satisfied that the cause for cancellation has been
corrected.
25 CFR 23.52 Subpart F -- Hearings and Appeals
Authority: 5 U.S.C. 301; secs. 463 and 465 of the Revised Statutes
(25 U.S.C. 2 and 9).
Source: 47 FR 39984, Sept. 10, 1982, unless otherwise noted.
25 CFR 23.61 Hearings.
Hearings referred to in 276.15 of this chapter shall be conducted as
follows:
(a) The grantee and the Indian tribe(s) affected shall be notified in
writing at least 10 days before the hearing. The notice should give the
date, time, places, and purpose of the hearing.
(b) A written record of the hearing shall be made. The record shall
include written statements submitted at the hearing or within 5 days
following the hearing.
(c) The hearing will be conducted on as informal a basis as possible.
25 CFR 23.62 Appeals from decision or action by Superintendent.
An applicant or grantee may appeal any decision made or action taken
by a Superintendent under this part. Such appeal shall be made to the
Area Director as provided in part 2 of this chapter.
25 CFR 23.63 Appeals from decision or action by Area Director.
An applicant or grantee may appeal any decision made or action taken
by an Area Director under this part. Such an appeal shall be made to
the Commissioner as provided in part 2 of this chapter.
25 CFR 23.64 Appeals from decision or action by Commissioner.
An applicant or grantee may appeal any decision made or action taken
by the Commissioner under this part only as provided in part 2 of this
chapter.
25 CFR 23.65 Appellants fees.
The Department will not pay attorneys or advocates fees for
applicants or grantees exercising their appeal rights under this
subpart.
25 CFR 23.66 Failure of agency or area office to act.
Whenever a Superintendent or Area Director fails to take action on a
grant application within the time limits established in this part, the
applicant may at its option request action by the next higher Bureau
official who has approval authority as prescribed in this part. In such
instances, the Superintendent or Area Director who failed to act shall
immediately forward the application and all related materials to the
next higher Bureau official.
25 CFR 23.66 Subpart G -- Administrative Requirements
25 CFR 23.71 Uniform administrative requirements for grants.
Administrative requirements for all grants provided under this part
shall be those prescribed in part 276 of this chapter except to the
extent inconsistent with an applicable Federal statute, regulation or
Office of Management and Budget grant circular.
(47 FR 39984, Sept. 10, 1982)
25 CFR 23.71 Subpart H -- Administrative Provisions
25 CFR 23.81 Recordkeeping and information availability.
(a) Any state court entering a final decree or adoptive order for any
Indian child shall provide the Secretary of the Interior within 30 days
a copy of said decree or order, together with any information necessary
to show:
(1) The name of the child, the birth date of the child, the tribal
affiliation of the child and the Indian blood quantum of the child as
required by sec. 3011(a) of Pub. L. 95-608 (25 U.S.C. 1951).
(2) Names and addresses of the biological parents and the adoptive
parents;
(3) Identity of any agency having relevant information relating to
said adoption placement.
To assure and maintain confidentiality where the biological parent(s)
have by affidavit requested their identity remain confidential, a copy
of such affidavit shall be provided the Secretary. Such information,
pursuant to section 301(a) of the Act, shall not be subject to the
Freedom of Information Act (5 U.S.C. 552) as amended. The Secretary
shall insure that the confidentiality of such information is maintained.
The proper address for transmittal of information required by section
301(a) of the Act is: Chief, Division of Social Services, Bureau of
Indian Affairs, 1951 Constitution Avenue, N.W., Washington, DC 20245.
The envelope containing all such information should be marked
''Confidential.'' This address shall be sent to the highest court of
Appeal, the Attorney General and Governor of each state. In some
states, a state agency has been designated to be repository for all
state court adoption information. Where such a system is operative,
there is no objection to that agency assuming reporting responsibilities
for the purpose of this Act.
(b) The Division of Social Services, Bureau of Indian Affairs is
authorized to receive all information and to maintain a central file on
all state Indian adoptions. This file shall be confidential and only
designated persons shall have access to it. Upon the request of the
adopted Indian individual over the age of eighteen, the adoptive or
foster parents of an Indian child, or an Indian tribe, the Division of
Social Services shall disclose such information as may be necessary for
enrollment or determining any rights or benefits associated with
membership, except the name of the biological parents where an affidavit
of confidentiality has been filed, to those persons eligible to request
such information under the Act. The Chief Tribal Enrollment officer of
the Bureau of Indian Affairs is authorized to disclose enrollment
information relating to an adopted Indian child where the biological
parents have by affidavit requested anonymity. In such cases, the Chief
Tribal Enrollment Officer shall certify to the child's tribe, where the
information warrants, that the child's parentage and other circumstances
entitle the child to enrollment consideration under the criteria
established by said tribe.
(44 FR 45102, July 31, 1979, as amended at 50 FR 12530, Mar. 29,
1985)
25 CFR 23.81 Subpart I -- Assistance to State Courts
25 CFR 23.91 Assistance in identifying witnesses.
Upon the request of a party in an involuntary child custody
proceeding or of a court the Secretary shall assist in identifying
qualified expert witnesses. Such requests for assistance should be sent
to the Area Director in the Area where the court proceedings are
initiated. Refer to 23.11(b).
25 CFR 23.92 Assistance in identifying interpreters.
Upon the request of a party in any Indian child custody proceeding or
of a court the Secretary shall assist in identifying interpreters. Such
requests for assistance should be sent to the Area Director in the Area
where the court proceedings are initiated. Refer to 23.11(b).
25 CFR 23.93 Assistance in locating biological parents of Indian child
after termination of adoption.
Upon the request of a child placement agency, the court or an Indian
tribe, the Secretary shall assist in locating the biological parents or
prior Indian custodian of an Indian adopted child whose adoption has
been terminated. Such requests for assistance should be sent to the
Area Director in the Area where the court proceedings occur. Refer to
23.11(b).
25 CFR 23.93 PART 26 -- EMPLOYMENT ASSISTANCE FOR ADULT INDIANS
25 CFR 23.93 Subpart A -- Definitions, Scope of the Employment
Assistance Program and Information Collection
Sec.
26.1 Definitions.
26.2 Scope of the Employment Assistance Program.
26.3 Information collection.
25 CFR 23.93 Subpart B -- Administrative Procedures
26.4 Filing applications.
26.5 Selection of applicants.
26.6 Program services and client participation.
26.7 Financial assistance for program participants.
25 CFR 23.93 Subpart C -- Appeals
26.8 Appeals.
Authority: 25 U.S.C. 13.
Source: 49 FR 2098, Jan. 18, 1984, unless otherwise noted.
25 CFR 23.93 Subpart A -- Definitions, Scope of the Employment Assistance Program and Information Collection
25 CFR 26.1 Definitions.
(a) Agency Office means the current organization unit of the Bureau
which provides direct services to the governing body or bodies and
members of one or more specified Indian tribes.
(b) Appeal means a written request for correction of an action or
decision claimed to violate a person's legal rights or privileges as
provided in part 2 of this chapter.
(c) Applicant means an individual applying under this part.
(d) Application means the process through which a request is made for
assistance or services.
(e) Area Director means the Bureau official in charge of an Area
Office.
(f) Contract Office means the office established by a tribe or tribes
who have a contract to administer the Employment Assistance Program.
(g) Indian means any person of Indian or Alaska native descent who is
an enrolled member of any of those tribes listed or eligible to be
listed in the Federal Register pursuant to 25 CFR 83.6 as recognized by
and receiving services from the Bureau of Indian Affairs or a descendant
of one-fourth degree or more Indian blood of an enrolled member; and
any person not a member of one of the listed or eligible to be listed
tribes who possesses at least one-half degree of Indian blood which is
not derived from a tribe whose relationship is terminated by an Act of
Congress.
(h) Indian tribe means any Indian tribe, band, nation or other
organized group or community including any Alaska Native Village which
is recognized by the Secretary of the Interior as having special rights
and responsibilities and is recognized as eligible for the services
provided by the United States to Indians because of their status as
Indians.
(i) Near reservation means those areas or communities adjacent or
contiguous to reservations which are designated by the Assistant
Secretary upon recommendation of the local Bureau superintendent, which
recommendation shall be based upon agreement with the tribal governing
body of those reservations, as locales appropriate for the extension of
financial and/or social services, on the basis of such general criteria
as:
(1) Number of Indian people native to the reservation residing in the
area,
(2) Geographical proximity of the area to the reservation, and
(3) Administrative feasibility of providing an adequate level of
services to the area. The Assistant Secretary shall designate each area
and publish the designations in the Federal Register.
(j) Reservation means any bounded geographical area established or
created by treaty, statute, executive order or interpreted by court
decision and over which a federally recognized Indian Tribal entity may
exercise certain jurisdiction.
(k) Superintendent means the Superintendent or Officer in Charge of
any one of the Agency offices of the Bureau of Indian Affairs or his/her
authorized representative.
(l) Tribal governing body means the recognized entity empowered to
exercise the governmental authority of a federally recognized tribe.
25 CFR 26.2 Scope of the Employment Assistance Program.
The purpose of the Employment Assistance Program is to assist Indian
people who have a job skill to obtain and retain permanent employment.
Within that framework, the program provides services to eligible
Indians, as provided in 26.5, including vocational counseling and
employment services on reservations and at other home areas, in
communities near reservations and in off-reservation areas. Support
services are also included, as provided in 26.6.
25 CFR 26.3 Information collection.
The information collection requirements contained in 26.4 and 26.6
have been approved by the Office of Management and Budget (OMB) under 44
U.S.C. 3504(h) and are assigned clearance numbers 1076-0062 and
1076-0061. Information necessary for an application for employment
assistance will be submitted on an application form which may be
obtained at a local Bureau of Indian Affairs Agency or tribal program
contractor office. This information is being collected for the purpose
of applying for Federal assistance. The information will be used to
determine if an Indian person is eligible to participate in this program
and to determine the amount of assistance needed. The obligation to
respond is a requirement to obtain the benefits.
25 CFR 26.3 Subpart B -- Administrative Procedures
25 CFR 26.4 Filing applications.
(a) Application for Employment Assistance services must be filed at
Bureau of Indian Affairs Agency offices, or at facilities under contract
with the Bureau or contract offices which are located on or near
reservations or other geographic areas of eligibility. Applications are
approved by the Agency Superintendent or designated contractor. An
eligible applicant should apply, be funded and receive services at the
servicing office nearest to his/her residence at the time of
application.
(b) For clarity and uniformity, application forms used will be in
accordance with the requirements of the Paperwork Reduction Act, section
3504(h) of Pub. L. 96-511.
25 CFR 26.5 Selection of applicants.
(a) Applicants must be adult Indians residing on or near Indian
reservations and demonstrate a need for employment services.
(b) An applicant must be unemployed or underemployed in order to
receive employment services.
(c) Selection of applicants shall be made without regard to sex or
marital status.
(d) Only those applicants who declare a desire and intent to accept
and retain full time permanent employment at the employment location
chosen shall be selected, with the exception of those individuals
participating in the temporary summer placement program as provided in
26.6(b)(1).
(e) Repeat employment services involving expenditure of grant funds
are to be determined on an individual basis, considering ability, prior
performance, need and motivation. No client shall automatically be
entitled to funded repeat services. No more than two (2) funded repeat
services for a client shall be allowed. Exceptions may be made if
additional funded services not provided would create extreme hardship on
the client. Applications are to be submitted with proper justification
for repeat service to the Area Director for approval or disapproval.
25 CFR 26.6 Program services and client participation.
(a) When a request is made for employment services, the applicant
shall be offered assistance to assess his/her job skills and work
experience and to relate these to available employment opportunities.
In many cases, applicants for placement services will already possess
training skills, and/or experience sufficient for entry into job
placement. In other cases, applicants may be encouraged to consider
further education or training options as a preliminary to permanent
employment. In any case, vocational counseling appropriate to the
individual situation shall be made available.
(b) Services may be provided either with or without the expenditure
of financial grants depending upon the type of service requested and the
need for financial assistance. Funds shall not be provided to finance
temporary employment except for the following:
(1) High school students who are at least 17 years of age or college
students participating in summer placement programs to gain work
experience and temporary income may receive limited funding as needed to
enable such persons to secure and hold summer jobs. This special
service will not count against the number of services allowed under
26.5(e).
(2) Persons who have moved to an off-reservation area for permanent
employment, through services of the Employment Assistance program, may
at times be required to accept temporary employment until permanent
employment is available. Such persons may receive funds as needed
within established limitations and justifiable circumstances, as allowed
by the Area Director, until permanent employment is found and/or the
need is met.
(c) Permanent employment shall normally be defined as employment
which is generally anticipated to be of one year or more in duration.
Employment in the construction or other trades where moving from one job
to another is generally required of persons engaged in such occupations
shall be considered as permanent employment.
(d) In those cases where applicants apply and are selected for
employment services in off-reservation urban locations, a variety of
services may be provided, based upon individual client needs and
requests for assistance. These may include advice in rental of housing,
shopping, money management, community adjustment, counseling, applying
for and seeking employment, and emergency financial assistance for up to
six months from the date of entry into this program. Continuing
non-financial assistance, as needed, shall remain indefinitely
available.
(e) Assistance as needed may be provided to enable clients who move
for employment to an off-reservation urban or non-urban area to accept a
specific job offer. In such cases, however, transportation or financial
assistance may be provided only after confirmation has been obtained
from the employer, giving details of employment, including the
following:
(1) Job title,
(2) Beginning wage,
(3) Date to start work,
(4) First payday,
(5) First full payday, and
(6) A statement that the job is anticipated to be of a permanent
nature.
25 CFR 26.7 Financial assistance for program participants.
(a) Individuals or families with a family member participating in the
Employment Assistance program may be granted financial assistance, as
needed, based upon rates established by the Area Director for the
respective areas or jurisdictions within those areas.
(b) Not more than thirty (30) percent of the funds appropriated for
any program year may be used to pay for the costs of administration.
Administrative costs include salaries and fringe benefits of direct
program administrative positions such as program director or program
officer, program/financial analyst, labor market analyst, clerical
personnel, travel costs, materials, supplies, equipment, space and
utilities. The remaining seventy (70) percent of funds available may be
used for transportation and subsistence enroute to employment location;
subsistence for one month or until the first paycheck from employment is
received; emergency assistance is allowed where verified emergencies
justify such grants and must have Area Director approval; and
supportive services. Supportive services includes tools for employment,
initial union dues, transportation of household effects, security and
safety deposits, personal appearance and housewares, child care, and
costs of employment counselors engaged in providing services to
applicants (salaries, fringe benefits and travel costs).
(c) Marital status of applicants is not a consideration for
determining eligibility for services, but this factor is a consideration
for determining appropriate subsistence grants. Proof of a legal
relationship requiring support shall be required as a basis for
application of family subsistence rates. In the case of married
persons, proof of marriage shall be required to satisfy this
requirement.
(d) Financial assistance shall not be used to supplement the income
of a person already employed.
25 CFR 26.7 Subpart C -- Appeals
25 CFR 26.8 Appeals.
The decision of any Bureau official under this part can be appealed
pursuant to the procedures in 25 CFR part 2.
25 CFR 26.8 PART 27 -- VOCATIONAL TRAINING FOR ADULT INDIANS
25 CFR 26.8 Subpart A -- Definitions, Scope of the Vocational Training
Program and Information Collection
Sec.
27.1 Definitions.
27.2 Scope of the vocational training program.
27.3 Information collection.
25 CFR 26.8 Subpart B -- Administrative Procedures
27.4 Filing applications.
27.5 Selection of applicants.
27.6 Satisfactory progress during training.
27.7 Approval of courses for vocational training at institutions.
27.8 Approval of apprenticeship training.
27.9 Approval of on-the-job training.
27.10 Financial assistance for trainees.
27.11 Contracts and agreements.
25 CFR 26.8 Subpart C -- Appeals
27.12 Appeals.
Authority: Sec. 1, Pub. L. 84-959, 70 Stat. 986 as amended by Pub.
L. 88-230, 77 Stat. 471 (25 U.S.C. 309).
Source: 49 FR 2101, Jan. 18, 1984, unless otherwise noted.
25 CFR 26.8 Subpart A -- Definitions, Scope of the Vocational Training Program and Information Collection
25 CFR 27.1 Definitions.
(a) Agency Office means the current organization unit of the Bureau
which provides direct services to the governing body or bodies and
members of one or more specified Indian tribes.
(b) Appeal means a written request for correction of an action or
decision claimed to violate a person's legal rights or privileges as
provided in part 2 of this chapter.
(c) Applicant means an individual applying under this part.
(d) Application means the process through which a request is made for
assistance or services.
(e) Area Director means the Bureau official in charge of an Area
Office or his/her authorized representative.
(f) Assistant Secretary means the Assistant Secretary of the Interior
for Indian Affairs or his/her authorized representative.
(g) Contract Office means the office established by a tribe or tribes
who have a contract to administer the adult vocational training program.
(h) Full time institutional training is:
(1) An institutional trade or technical course offered on a
clock-hour basis below the college level, involving shop practices as an
integral part thereof when a minimum of thirty (30) hours per week of
attendance is required with not more than 2 1/2 hours of rest periods
per week allowed.
(2) An institutional vocational course offered on a clock-hour basis
below the college level in which theoretical or classroom instruction
predominates when a minimum of twenty-five (25) hours per week net of
instruction is required, or
(3) An institutional undergraduate vocational course offered by a
college or university on a quarter or semester-hour basis when a minimum
of twelve (12) semester credit hours or its equivalent is required.
(i) Indian means any person of Indian or Alaska native descent who is
an enrolled member of any of those tribes listed or eligible to be
listed in the Federal Register pursuant to 25 CFR 83.6 as recognized by
and receiving services from the Bureau of Indian Affairs or a descendant
of one-fourth degree or more Indian blood of an enrolled member and any
person not a member of one of the listed or eligible to be listed tribes
who possesses at least one-half degree of Indian blood which is not
derived from a tribe whose relationship is terminated by an Act of
Congress.
(j) Indian tribe means any Indian tribe, band, nation or other
organized group or community, including any Alaska native village, which
is recognized by the Secretary of the Interior as having special rights
and responsibilities and is recognized as eligible for the services
provided by the United States to Indians because of their status as
Indians.
(k) Near reservation means those areas or communities adjacent or
contiguous to reservations which are designated by the Assistant
Secretary upon recommendation of the local Bureau superintendent, which
recommendation shall be based upon agreement with the tribal governing
body of those reservations, as locales appropriate for the extension of
financial assistance and/or social services, on the basis of such
general criteria as:
(1) Number of Indian people native to the reservation residing in the
area,
(2) Geographical proximity of the area to the reservation, and
(3) Administrative feasibility of providing an adequate level of
services to the area. The Assistant Secretary shall designate each area
and publish the designations in the Federal Register.
(l) Reservation means any bounded geographical area established or
created by treaty, statute, executive order or as interpreted by court
decision and over which a Federally recognized Indian tribal entity may
exercise certain jurisdiction.
(m) Superintendent means the Superintendent or Officer in Charge of
any of the Agency offices of the Bureau of Indian Affairs or his/her
authorized representative.
(n) Tribal governing body means the recognized entity empowered to
exercise the governmental authority of a Federally recognized tribe.
25 CFR 27.2 Scope of the vocational training program.
The purpose of the vocational training program is to assist Indian
people to acquire the job skills necessary for full time satisfactory
employment. Within that framework, the program provides testing,
vocational counseling or guidance to assist program participants to make
career choices relating personal assets to training option and
availability of jobs in the labor market. The program provides for full
time institutional training in any vocational or trade school as
provided in 27.7. Apprenticeship and on-the-job training are also
provided. Institutional, apprenticeship, or on-the-job training courses
shall not exceed twenty-four (24) months in length, with the exception
that Registered Nurses training may be for periods not to exceed
thirty-six (36) months. Individual program recipients may not receive
more than twenty-four (24) months of full-time training, except that
Registered Nursing students may receive not more than thirty-six (36)
months of training.
25 CFR 27.3 Information collection.
The information collection requirements contained in 27.4, 27.6 and
27.9 have been approved by the Office of Management and Budget (OMB)
under 44 U.S.C. 3504(h) and are assigned clearance numbers 1076-0062,
1076-0063 and 1076-0069. Information necessary for an application for
vocational training assistance will be submitted on an application form
which may be obtained at a local Bureau of Indian Affairs Agency or
tribal program contractor office. This information is being collected
for the purpose of applying for Federal assistance. The information
will be used to determine if an Indian individual is eligible to
participate in this program and to determine the amount of assistance
needed. The obligation to respond is a requirement to obtain the
benefits.
25 CFR 27.3 Subpart B -- Administrative Procedures
25 CFR 27.4 Filing applications.
(a) Applications for adult vocational training services must be filed
at Bureau of Indian Affairs agency offices, or at facilities under
contract with the Bureau or contract offices located on or near
reservations or other geographic areas of eligibility. Applications are
approved by the Agency Superintendent or designated contractor. An
eligible applicant should apply, be funded and receive services at the
servicing office nearest to his/her residence at the time of
application.
(b) For clarity and uniformity, application forms used will be in
accordance with the requirements of the Paperwork Reduction Act, section
3504(h) of Pub. L. 96-511.
25 CFR 27.5 Selection of applicants.
(a) Applicants must be adult Indians residing on or near Indian
reservations.
(b) Eligible individuals shall be at least eighteen (18) years of
age, except that high school graduates shall be eligible at the age of
seventeen (17) years. Also, while the program is designed primarily for
persons between the ages of eighteen (18) and thirty-five (35), persons
over the age of thirty-five (35) shall be eligible, assuming training
and permanent employment to be otherwise feasible in terms of health and
physical capability.
(c) An applicant must be in need of training in order to obtain
reasonable and satisfactory employment or is underemployed and without
additional training would result in extreme hardship for the applicant,
and is in need of financial assistance in order to obtain such training.
It must also be feasible for the applicant to pursue training.
(d) Selection of applicants shall be made without regard to sex or
marital status, providing they meet the requirements of paragraphs (a),
(b), and (c) of this section. Non-Indian spouses shall not be eligible
for training.
(e) No more than two (2) repeat training services will be allowed.
Repeat training services will be on a lower priority than the initial
service and will be determined on an individual basis, considering need,
ability, prior performance and present motivation of the applicant. In
order to be in need of repeat institutional training, an applicant must
be unemployed, underemployed, or unable to work in his/her primary
occupation due to physical or other disabilities. Time spent in
on-the-job training programs will be deducted from the maximum of
institutional training eligibility.
(f) Only those applicants who willingly declare intent to accept full
time employment as soon as possible after completion of training shall
be selected. Plans may subsequently change, but the intent of the
training program is preparation for employment, and this must be the
initial intent of program participants. The program is not meant to
serve as a preliminary to immediate further education.
25 CFR 27.6 Satisfactory progress during training.
An individual who enters training pursuant to the provisions of this
part is required to make satisfactory progress in training. Individuals
in institutional vocational training courses are required to give
evidence of progress by authorizing the institution attended to provide
grade and/or progress reports to the appropriate Bureau of Indian
Affairs or contract office. Program participants shall maintain a
reasonable standard of conduct. Failure to meet these requirements due
to reasons within the trainee's control may result in termination of
training benefits.
25 CFR 27.7 Approval of courses for vocational training at
institutions.
(a) A course of vocational training at any institution, public or
private, offering vocational training may be approved by the Assistance
Secretary; provided:
(1) The institution is accredited by a recognized national regional
accrediting association; or
(2) The institution is approved for training by a state agency
authorized to make such approvals; and
(3) It is determined that there is reasonable certainty of employment
for graduates of the institution in their respective fields of training.
(b) Cooperative education (a combination of classroom theory with
related practical job experience) is considered as valuable learning
experience and is specifically allowed and encouraged.
(c) Vocational training courses offered through Indian tribal
governments need not be accredited but must show reasonable expectation
of leading to employment and be approved by the Area Director.
25 CFR 27.8 Approval of apprenticeship training.
A program of apprenticeship training may be approved when such
training:
(a) Is offered by a corporation or association which has furnished
such training to bona fide apprentices for at least one year preceding
participation in this program;
(b) Is under the supervision of a State apprenticeship agency, a
State Apprenticeship Council, or the Federal Apprenticeship Training
Services;
(c) Leads to an occupation which requires the use of skills that
normally are learned through training on the job and employment which is
based upon training on the job rather than upon such elements as length
of service, normal turnover, personality, and other personal
characteristics; and
(d) Is identified expressly as apprenticeship training by the
establishment offering it.
25 CFR 27.9 Approval of on-the-job training.
(a) On-the-job training contracts shall be approved only by the
official to whom such authority has been delegated in the 10 BIAM.
(b) On-the-job training may be approved when such training is offered
by a corporation, small business, association, tribe or tribal
enterprise which provides an on-the-job training program offering
definite potential for skilled permanent employment.
(c) Yearly on-the-job training contractual agreements with a specific
contractor shall not be renewed beyond the second year without review
and written approval from the Assistant Secretary-Indian Affairs.
Extension of contracts exceeding two years will be based upon a
contractors demonstrated expansion of the enterprise, need for
additional trainees, and placement of trainees completing the program.
(d) Reimbursement to the on-the-job training contractor may include
one-half of the hourly wage paid during the training period with the
contractor paying the other half. The hourly rate must be at least the
established minimum wage under the Fair Labor Standards Act of 1938, as
amended.
25 CFR 27.10 Financial assistance for trainees.
(a) Applicants entering full-time training under this part may be
granted financial assistance as needed, based upon rates established by
the Area Director for the respective areas, or jurisdictions within
those areas. Trainees may be assisted to secure educational grants from
other sources for which they qualify. Such income shall be considered
in computing amounts of financial assistance to be provided by the
Bureau of Indian Affairs. Marital status of trainees is not a
consideration for determining eligibility for training, but this factor
is a consideration in determining appropriate subsistence grants. Proof
of a legal relationship requiring support shall be required as a basis
for application of family subsistence rates. In the case of married
persons, proof of marriage shall be required to satisfy this
requirement. Financial assistance may be provided for transportation
and subsistence enroute to training; tuition and related training
costs; subsistence while in training; emergency assistance is allowed
where verified emergencies justify such grants and must have Area
Director approval; and supportive services while in training.
Supportive services includes tools for employment, initial union dues,
transportation of household effects, security and safety deposits,
personal appearance and housewares, child care, and cost of vocational
training counselors engaged in providing services to trainees (salaries,
fringe benefits and travel costs).
(b) Not more than thirty (30) percent of the funds appropriated for
any program year may be used to pay for the costs of administration.
Administrative costs include salaries and fringe benefits of direct
program administrative positions such as program director or program
officer, program/financial analyst, labor market analyst, clerical
personnel, travel costs, materials, supplies, equipment, space and
utilities.
25 CFR 27.11 Contracts and agreements.
Training facilities and services required for programs of vocational
training may be arranged through contracts or agreements with agencies,
establishments or organizations. These may include:
(a) Indian tribal governing bodies,
(b) Appropriate Federal, State or local government agencies,
(c) Public or private schools which have a recognized reputation in
vocational education as successfully obtaining employment for graduates
in the fields of training approved by the Assistant Secretary or his/her
authorized representative for purposes of the program,
(d) Educational firms to operate residential training centers, or
(e) Corporations and associations or small business establishments
with apprenticeship or on-the-job training programs leading to skilled
employment.
25 CFR 27.11 Subpart C -- Appeals
25 CFR 27.12 Appeals.
The decisions of any Bureau official under this part can be appealed
pursuant to the procedures in 25 CFR part 2.
25 CFR 27.12 SUBCHAPTER E -- EDUCATION
25 CFR 27.12 PART 31 -- FEDERAL SCHOOLS FOR INDIANS
Sec.
31.0 Definitions.
31.1 Enrollment in Federal schools.
31.2 Use of Federal school facilities.
31.3 Non-Indian pupils in Indian schools.
31.4 Compulsory attendance.
31.5 Consent for transfer.
31.6 Coercion prohibited.
31.7 Handling of student funds in Federal school facilities.
Authority: Sec. 1, 41 Stat. 410; 25 U.S.C. 282, unless otherwise
noted.
Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted.
25 CFR 31.0 Definitions.
As used in this part:
(a) School district means the local unit of school administration as
defined by the laws of the State in which it is located.
(b) Cooperative school means a school operated under a cooperative
agreement between a school district and the Bureau of Indian Affairs in
conformance with State and Federal school laws and regulations.
(35 Stat. 72, 25 U.S.C. 295)
(33 FR 6472, Apr. 27, 1968)
25 CFR 31.1 Enrollment in Federal schools.
(a) Enrollment in Bureau-operated schools is available to children of
one-fourth or more degree of Indian blood reside within the exterior
boundaries of Indian reservations under the jurisdiction of the Bureau
of Indian Affairs or on trust or restricted lands under the jurisdiction
of the Bureau of Indian Affairs except when there are other appropriate
school facilities available to them as hereinafter provided in paragraph
(c) of this section.
(b) Enrollment in Bureau-operated boarding schools may also be
available to children of one-fourth or more degree of Indian blood who
reside near the reservation when a denial of such enrollment would have
a direct effect upon Bureau programs within the reservation.
(c) Children of Federal employees, whether Indian or non-Indian, are
deemed eligible on the same basis as other eligible students for
enrollment at facilities provided by the school district (including
cooperative schools) wherein they reside.
(35 Stat. 72, 25 U.S.C. 295)
(33 FR 6473, Apr. 27, 1968; 33 FR 6968, May 9, 1968)
25 CFR 31.2 Use of Federal school facilities.
Federal Indian school facilities may be used for community activities
and for adult education activities upon approval by the superintendent
or officer in charge.
25 CFR 31.3 Non-Indian pupils in Indian schools.
Indian and non-Indian children who are not eligible for enrollment in
Bureau-operated schools under 31.1 may be enrolled in such schools
under the following conditions:
(a) In boarding schools upon payment of tuition fees, which shall not
exceed the per capita cost of maintenance in the school attended, when
their presence will not exclude Indian pupils eligible under 31.1.
(b) In day schools in areas where there are no other adequate free
school facilities available, tuition fees may be charged for such
enrollment at the discretion of the superintendent or other officer in
charge provided such fees shall not exceed the tuition fees allowed or
charged by the State or county in which such school is located for the
children admitted in the public schools of such State or county.
(34 Stat. 1018, 35 Stat. 783, 40 Stat. 564; 25 U.S.C. 288, 289, 297)
(29 FR 5828, May 2, 1964)
25 CFR 31.4 Compulsory attendance.
Compulsory school attendance of Indian children is provided for by
law.
(60 Stat. 962; 25 U.S.C. 231)
Cross Reference: For penalties for the failure of Indians to send
children to school and for contributing to the delinquency of minors,
see 11.65 and 11.66 of this chapter.
25 CFR 31.5 Consent for transfer.
Consent of the parents or next of kin, given before the
superintendent or other duly authorized person, must be obtained before
an Indian child is sent to a school beyond the limits of the State or
Territory in which the reservation is located.
(Sec. 1, 28 Stat. 906; 25 U.S.C. 286)
25 CFR 31.6 Coercion prohibited.
There shall be no coercion of children in the matter of transfers
from one school to another, but voluntary enrollment should be effected
through maintenance of Federal Indian schools or programs which suit the
needs and interests of the areas in which they are located.
(Sec. 1, 29 Stat. 348; 25 U.S.C. 287)
25 CFR 31.7 Handling of student funds in Federal school facilities.
The Secretary or his authorized representative may authorize
officials and employees of the Bureau of Indian Affairs to accept and to
disburse deposits of funds of students and student activity associations
in schools operated by the Bureau in accordance with the purposes of
such deposits. The following steps shall be taken to safeguard these
funds:
(a) A written plan of operation shall be developed by the membership
of each student activity group. The plan of operation subject to the
approval of authorized officials shall outline procedures and provide
for a system of accounting for the student funds commensurate with the
age and grade level of the students yet adequate for financial control
purposes and shall stipulate the maximum operating capital of activity.
(b) Appropriate safekeeping facilities shall be provided for all
student personal and group funds and for the accounting or bookkeeping
records.
(c) Employees handling student funds in cumulative amounts in excess
of $100 shall be covered by a comprehensive fidelity bond the penal sum
of which shall be appropriately related to fund amounts handled.
(d) Student funds accumulated in excess of the amount authorized for
operating purposes by the plan of operation shall be deposited in
federally insured depositories.
(e) Periodic administrative inspections and financial audit of
student fund operations shall be conducted by authorized Bureau
personnel.
(26 FR 10637, Nov. 14, 1961)
25 CFR 31.7 PART 32 -- INDIAN EDUCATION POLICIES
Sec.
32.1 Purpose and scope.
32.2 Definitions.
32.3 Mission statement.
32.4 Policies.
32.5 Evaluation of implementation of Pub. L. 95-561.
Authority: Secs. 1130 and 1133 of Title XI of the Education
Amendments of 1978 (92 Stat. 2143, 2321 and 2325, Pub. L. 95-561; 25
U.S.C. 2010 and 2013).
Source: 44 FR 58098, Oct. 9, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 32.1 Purpose and scope.
The purpose of this part is to state the policies to be followed by
all schools and education programs under the jurisdiction of the Bureau
of Indian Affairs. Contract schools operated by Indian Tribes or Alaska
Native entities may develop their independent policies, consistent with
contractual obligations, or adhere to these. The adherence to the
appropriate policies shall reflect the best interests of the student,
the Federal government, the Tribes and Alaska Native entities, and shall
be based on educationally sound judgment.
25 CFR 32.2 Definitions.
As used in this part, the term:
(a) Agency School Board means a body, the members of which are
appointed by the school boards of the schools located within such
agency, and the number of such members shall be determined by the
Director in consultation with the affected Tribes or Alaska Native
entities except that, in agencies serving a single school, the school
board of such school shall fulfill these duties.
(b) Alaska Native means an Indian, Eskimo, or Aleut who is a member
of an Alaska Native entity.
(c) Alaska Native Entity means any Alaska Native village or regional
or village corporation as defined in or established pursuant to the
Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et
seq.).
(d) Alaska Native Village means any Native village as defined in
section 3(c) of the Alaska Native Claims Settlement Act (85 Stat. 689;
43 U.S.C. 1602 (c)).
(e) Boarding school, hereinafter referred to as residential school,
means a Bureau school offering residential care and support services as
well as an academic program.
(f) Bureau means the Bureau of Indian Affairs of the Department of
the Interior.
(g) Consultation means a conferring process with Tribes, Alaska
Native entities, and Tribal organizations on a periodic and systematic
basis in which the Bureau and Department officials listen to and give
effect, to the extent they can, to the views of these entities.
(h) Contract school means a school (other than a public school) which
is Tribally operated and aided by a financial assistance contract with
the Bureau.
(i) Day school means a Bureau school offering an academic program and
certain support services such as counseling, food, transportation, etc.,
but excluding residential care.
(j) Director means the Director, Office of Indian Education Programs,
Bureau of Indian Affairs.
(k) Early childhood education means comprehensive education
activities with continuity of educational approach for children ages 0-8
years and their familes, appropriate for their age, development,
language and culture which supplement and support usual family
responsibilities for child growth and development. They are coordinated
with, but do not supplant, existing educational, health, nutritional,
social and other necessary services.
(l) Exceptional Education Programs mean the provision of services to
those children who are identified as handicapped and have been found to
meet the criteria of handicapped as defined in Pub. L. 94-142, and
programs for gifted and talented students.
(m) Indian means a member of an Indian Tribe.
(n) Indian Organization means any group, association, partnership,
corporation, or other legal entity owned or controlled by a federally
recognized Indian Tribe or Tribes, or a majority of whose members are
members of federally recognized Indian Tribes.
(o) Indian Tribe or Tribe means any Indian Tribe, band, nation,
rancheria, pueblo, colony, or community which is recognized as eligible
for the special programs and services provided by the United States to
Indians because of their status as Indians.
(p) Local school board, when used with respect to a Bureau school,
means a body chosen in accordance with the laws of the Tribe or Alaska
Native entity to be served or, in the absence of such laws, elected by
the parents of the Indian children attending the school, except that in
schools serving a substantial number of students from different Tribes
or Alaska Native entities the members shall be appointed by the
governing bodies of the Tribes and entities affected; and, the number
of such members shall be determined by the Director in consultation with
the affected Tribes and entities.
(q) Post-secondary education means any education program beyond the
age of compulsory education, including higher education, career,
vocational, and technical.
(r) Tribal Organization means an organization composed of or duly
representing Tribal governments which may be national or regional in
scope and function.
25 CFR 32.3 Mission statement.
Recognizing the special rights of Indian Tribes and Alaska Native
entities and the unique government-to-government relationship of Indian
Tribes and Alaska Native villages with the Federal Government as
affirmed by the United States Constitution, U.S. Supreme Court
decisions, treaties, Federal statutes, and Executive Orders, and as set
out in the Congressional declaration in sections 2 and 3 of the Indian
Self-Determination and Education Assistance Act (Pub. L. 93-638; 88
Stat. 2203; 25 U.S.C. 450 and 450a), it is the responsibility and goal
of the Federal government to provide comprehensive education programs
and services for Indians and Alaska Natives. As acknowledged in section
5 of the Indian Child Welfare Act of 1978 (Pub. L. 95-608; 92 Stat.
3069; 25 U.S.C. 1901), in the Federal Government's protection and
preservation of Indian Tribes and Alaska Native villages and their
resources, there is no resource more vital to such Tribes and villages
than their young people and the Federal Government has a direct
interest, as trustee, in protecting Indian and Alaska Native children,
including their education. The mission of the Bureau of Indian Affairs,
Office of Indian Education Programs, is to provide quality education
opportunities from early childhood through life in accordance with the
Tribes' needs for cultural and economic well-being in keeping with the
wide diversity of Indian Tribes and Alaska Native villages as distinct
cultural and governmental entities. The Bureau shall manifest
consideration of the whole person, taking into account the spiritual,
mental, physical and cultural aspects of the person within family and
Tribal or Alaska Native village contexts.
25 CFR 32.4 Policies.
In carrying out its Education mission, the Assistant Secretary for
Indian Affairs through the Director shall:
(a) Policy making. (1) Assure that no new policy shall be
established nor any existing policy changed or modified without
consultation with affected Tribes and Alaska Native Government entities.
(2) Be guided in policy formulation and funding priorities, including
the proposing and awarding of contracts and grants, by periodic and
systematic consultation with governing bodies of Tribes and Alaska
Native entities.
(3) Ensure that Indian Tribes and Alaska Native entities fully
exercise self-determination and control in planning, priority-setting,
development, management, operation, staffing and evaluation in all
aspects of the education process.
(4) Ensure that each agency or local school board shall be authorized
and empowered to function as the policy making body for the school,
consistent with the authority granted by the tribes or Alaska Native
entity(ies) served by the school(s).
(b) Student rights. Ensure the constitutional, statutory, civil and
human rights of all Indian and Alaska Native students, and respect the
role of Tribal judicial systems where appropriate including, for
example, ensuring that students have the right to be free from cruel and
unusual punishment and that all disciplinary procedures shall be
consistent with appropriate customs and practices of the appropriate
Indian Tribe or Alaska Native village.
(c) Equity funding. Assure that resources for all education programs
are equitably distributed for the benefit of all Indian and Alaska
Native students, taking into account special educational needs where
they exist, as further described in part 39 of this subchapter.
(d) Direction of programs. Ensure that the education function be
structured in such a manner that all matters relating to the operation
of education programs be administered by or be under the direction of
education personnel.
(e) Respect for family. Promote, respect and defend the cohesiveness
and integrity of the family, and Tribal and Alaska Native community, as
they relate to the educational and social prerogatives of the Tribes and
Alaska Native entities.
(f) Religious freedom. Promote and respect the right to cultural
practices and religious freedom for all students, consistent with Tribal
and Alaska Native entities' wishes and with the provisions of the
American Indian Religious Freedom Act (92 Stat. 469; Pub. L. 95-341;
42 U.S.C. 1996).
(g) Tribal rights regarding governing bodies and planning. (1)
Develop in consultation with Tribes and Alaska Native entities a plan to
include their direct involvement in short and long-range planning of
Bureau operated post-secondary schools through the formation of policy
making governing boards.
(2) Encourage and defend the right of the Tribes and Alaska Native
entities to govern their own internal affairs in all matters relating to
education, and their right to determine the equitable and appropriate
composition of governing boards at Bureau off-reservation and
post-secondary schools.
(h) Multilingual education. Provide for a comprehensive
multicultural and multilingual educational program including the
production and use of instructional materials, culturally appropriate
methodologies and teaching and learning strategies that will reinforce,
preserve and maintain Indian and Alaska Native languages, cultures, and
histories which school boards, Tribes and Alaska Native entities may
utilize at their discretion.
(i) Choice of school. Afford Indian and Alaska Native students the
opportunity to attend local day schools and other schools of choice and
the option to attend boarding schools when the student and parent or
guardian determine it is in the student's best interest and consistent
with the provisions of the Indian Child Welfare Act of 1978 (Pub. L.
95-608) except that, residential schools shall not be used as
substitutes for providing adequate local family social services. Each
school shall establish its attendance area in cooperation with
neighboring schools.
(j) Tribal education plans. Assist Tribes and Alaska Native entities
at their request in the development of Departments of Education,
education codes, and comprehensive education plans.
(k) Advocacy and coordination. (1) Serve as an advocate for Indian
Tribes and Alaska Native entities in education matters before the
Federal, State and local governments.
(2) Assume an assertive role in coordinating comprehensive support
for Indian and Alaska Native students internally and from other agencies
in education, mental and physical health, juvenile justice, job
training, including apprenticeship programs and other related Federal,
State and local programs and services.
(3) Serve as an advocate and carry out responsibilities for Indian
and Alaska Native students in public and other non-Bureau operated
schools consistent with the wishes of the appropriate Indian Tribes and
Alaska Native entities, particularly in regard to Impact Aid (Pub. L.
81-874), Johnson-O'Malley, and all Elementary and Secondary Education
Act programs.
(l) Student assessment. Establish and maintain a program of research
and development to provide accurate and culturally specific assessment
instruments to measure student performance in cooperation with Tribes
and Alaska Native entities.
(m) Recruitment of Indians. Adopt procedures to insure that
qualified Indian and Alaska Native educators are recruited for positions
appropriate to their cultural background and qualifications.
(n) Priorities in contracts and grants. Provide financial support
through contracts, grants or other funding mechanisms with first
priority given to the Tribes and Alaska Native entities, Tribal
organizations, Tribally controlled community colleges, and Indian or
Alaska Native professional or technical assistance organizations which
have the sanction of the benefitting Tribes and Alaska Native entities.
(o) Community school concept. Promote the community school concept
by encouraging year around multi-use of educational facilities,
equipment and services for Tribal, Alaska Native village, and community
development.
(p) Education close to home. Provide day and residential educational
services as close to an Indian or Alaska Native student's home as
possible, except when a student elects to attend a school elsewhere for
specialized curricular offerings or services.
(q) Tribal notification and involvement and program flexibility. (1)
Notify Indian Tribes and Alaska Native entities of proposed, pending or
final Federal legislation, appropriations, Solicitor's and Attorney
General's opinions and court decisions affecting Indian and Alaska
Native education for the purposes of information and consultation,
providing them ready access at the local level to all evaluations, data
records, reports and other relevant information, consistent with the
provisions of the Privacy and Freedom of Information Acts.
(2) Implement rules, regulations, procedures, practices, and
standards to insure flexibility in the exercise of local Tribal or
Alaska Native village options, and provide for input in periodic
reviews, evaluations, and revisions to meet changing needs and
circumstances.
(r) Career and higher education. (1) Ensure to the extent possible
that all students who choose to pursue career and post-secondary
education, including but not limited to, undergraduate and graduate
programs, or preparation for skilled trades, receive adequate academic
or other preparation, at the schools of their choice, assuring that
students are provided adequate support services to enable them to meet
their educational goals.
(2) Extend to Tribes and Alaska Native entities the prerogative of
determining those critical professions and fields of study in
post-secondary education which are of the highest priority to meet their
economic and cultural goals.
(s) Planning, maintenance and use of facilities. (1) Ensure that the
needs of the students and Tribal or Alaska Native community will receive
first priority in the planning, design, construction, operation and
maintenance of Bureau schools and residential facilities, rather than
other considerations, such as ease of maintenance, and that these
facilities assure a supportive environment for learning, living and
recreation.
(2) Maintain all school and residential facilities to meet
appropriate Tribal, State or Federal safety, health and child care
standards. If a conflict exists in these standards, the Federal
standard shall be followed; in the absence of a Federal standard, the
Tribal standard shall be followed. In case of conflict, any such Tribal
health or safety standards shall be no greater than any otherwise
applicable State standard.
(t) Alternative, innovative and exemplary programs. Vigorously
encourage and support alternative, innovative and exemplary programs
reflecting Tribal or Alaska Native village specific learning styles,
including but not limited to, parent-based early childhood education
programs, adult and vocational technical education, library and media
services, special education including programs for handicapped, gifted
and talented students, summer programs, and career development.
(u) Training. Provide support and technical assistance at all levels
for the training of duly sanctioned Tribal and Alaska Native education
representatives involved in educational decisionmaking, including
pre-service and in-service training for educators.
(v) Tribally controlled community colleges. Assist Tribes and Alaska
Natives in their planning, designing, construction, operation and
maintenance of Tribally controlled community colleges, consistent with
all appropriate legislation. (See part 41 of this subchapter.)
(w) Equal opportunity. Establish and enforce policies and practices
to guarantee equal opportunity and open access to all Indian and Alaska
Native students in all matters relating to their education programs
consistent with the provisions of the Privacy and Freedom of Information
Acts.
(x) Accountability, evaluation of MIS. (1) Enforce a strict standard
of fiscal, programmatic and contract accountability to the Tribes and
Alaska Native entities and assist them in the development of their own
standards of accountability and carry out annual evaluations of all
Bureau-operated or funded education programs.
(2) Provide and make available a computerized management information
system which will provide statistical information such as, but not
limited to, student enrollment, curriculum, staff, facilities, student
assessments and related educational information.
(y) Accreditation. (1) Encourage and assist all Bureau and contract
schools to attain appropriate State, regional, Tribal or national
accreditation.
(2) Assist and promote the establishment of Indian regional and/or
national accrediting associations for all levels of Indian Education.
(z) Eligibility for services. Serve Indian and Alaska Native
students who are recognized by the Secretary of the Interior as eligible
for Federal services, because of their status as Indians or Alaska
Natives, whose Indian blood quantum is 1/4 degree or more. In the
absence of other available facilities, children of non-Indian Bureau
personnel or other non-eligibles may be served subject to the provisions
of 25 U.S.C. 288 and 289.
(aa) Appropriations. Aggressively seek sufficient appropriations to
carry out all policies herein established subject to the president's
budget and the Department's budgetary process.
25 CFR 32.5 Evaluation of implementation of Pub. L. 95-561.
The Director, Office Indian Education Programs will develop
guidelines for evaluating all functional and programmatic
responsibilities associated with Title XI of the Education Amendments of
1978 (Pub. L. 95-561), and in the January 1, 1981 annual report, as
provided in section 1136, of Pub. L. 95-561 include a statement of the
specific program toward implementing these policies.
25 CFR 32.5 PART 33 -- TRANSFER OF INDIAN EDUCATION FUNCTIONS
Sec.
33.1 Definitions.
33.2 Policy.
33.3 Delegation of authority.
33.4 Redelegation of authority.
33.5 Area education functions.
33.6 Agency education functions.
33.7 Implementing procedures.
33.8 Realignment of area and agency offices.
33.9 Development of procedures.
33.10 Issuance of procedures.
Authority: Sec. 1126, Pub. L. 95-561, Education Amendments of 1978
(92 Stat. 2143, 2391; 25 U.S.C. 2006).
Source: 44 FR 58103, Oct. 9, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 33.1 Definitions.
(a) Agency means that organizational unit of the Bureau which
provides direct services to the governing body or bodies and members of
one or more specified Indian Tribes.
(b) Early childhood means education activities serving the 0 to 8
year old child, including pre-natal, child care, kindergarten, homebase,
homebound, and special education programs.
(c) Elementary and secondary education means those programs serving
the child from grade one through grade twelve.
(d) Operating level means the organizational level at which direct
educational services are performed.
(e) Personnel directly and substantially involved means those persons
who provide services which affect the operation of Indian education
programs, including (but not limited to) school or institution custodial
or maintenance personnel, and whose services for Indian education
programs require the expenditure of at least 51 percent of the
employee's working time.
(f) Post-secondary means education programs that are provided for
persons past the age for compulsory education to include continuing
education, higher education, undergraduate and graduate, career and
adult education. As used in this Act, the term Post-Secondary shall
include those Bureau of Indian Affairs programs operated at Southwestern
Indian Polytechnic Institute, the Institute of American Indian Arts, and
Haskell Indian Junior College, and those operated at Tribally controlled
community colleges under Pub. L. 95-471.
25 CFR 33.2 Policy.
It is the policy of the Department of the Interior that:
(a) Indian control of Indian affairs in all matters relating to
education shall be facilitated.
(b) Authority to perform education functions shall be delegated
directly from the Assistant Secretary-Indian Affairs to the Director,
Office of Indian Education Programs.
(c) Administrative authority shall be compatible with program
authorities; and, both shall be delegated to the operating level to
assure efficient and effective delivery of education services to Indian
children, youth, and adults.
(d) The Director, Office of Indian Education Programs shall supervise
the operation of Indian education program personnel at the Arena,
Agency, and the three Bureau of Indian Affairs post-secondary
institutions.
(e) Indian Education program functions to be performed at the Area
office level shall include those dealing with higher education,
Johnson-O'Malley aid to non-Bureau schools, off-reservation boarding
schools, those education program operations serving tribes from more
than one Agency except those at the three post-secondary institutions,
on-reservation education functions located at an Agency where no
educational personnel are assigned, education contract operations, and
adult education.
25 CFR 33.3 Delegation of authority.
The administrative and programmatic authorities of the Assistant
Secretary -- Indian Affairs pertaining to Indian education functions
shall not be delegated to other than the Director, Office of Indian
Education Programs. The Assistant Secretary shall publish delegations
of authorites to the Director in the Bureau of Indian Affairs Manual
after the effective date of these regulations.
25 CFR 33.4 Redelegation of authority.
The authorities of the Assistant Secretary -- Indian Affairs as
delegated to the Director, Office of Indian Education Programs may be
redelegated by the Director to a Bureau of Indian Affairs Agency
Superintendent for Education, to a Bureau Area Education Programs
Director, or to a President of a Bureau of Indian Affairs post-secondary
education institution.
25 CFR 33.5 Area education functions.
A Bureau Area Education Programs Director shall perform those Bureau
of Indian Affairs education functions related to Johnson-O'Malley aid to
non-Bureau schools, higher education, Bureau peripheral dormitories,
adult education, off-reservation residential schools, on-reservation
functions located at an Agency where no education personnel are
assigned, education contract operations, and those education program
operations serving Tribes from more than one Agency, except those of the
Bureau's post-secondary institutions.
25 CFR 33.6 Agency education functions.
A Bureau Agency Superintendent for Education shall perform those
education functions related to elementary and secondary education, early
childhood education, peripheral dormitories which have been supervised
prior to Pub. L. 95-561, and exceptional education programs as defined
in 25 CFR part 32. This section shall not be construed to remove higher
education, adult education and/or Johnson-O'Malley programs currently
administered at the Agency level. Further, the Director under the
authority of 33.4 will periodically review Area programs such as higher
education, adult education, and Johnson-O'Malley for consideration to
assign to Agency level administration.
25 CFR 33.7 Implementing procedures.
(a) The Assistant Secretary -- Indian Affairs shall:
(1) Implement the transfer for Indian education functions from the
jurisdiction of Agency Superintendents and Area Office Directors to the
Director, Office of Indian Education Programs.
(2) Modify existing descriptions of positions for Area Office
Directors, Agency Superintendents, and all other personnel directly and
substantially involved with the provisions of education services by the
Bureau of Indian Affairs.
(b) The Director, Office of Indian Education Programs shall:
(1) For Area, Agency, and Bureau of Indian Affairs postsecondary
institutional personnel:
(i) Properly list the duties of each employee required to perform
functions redelegated by the Director;
(ii) Define the responsibilities for monitoring and evaluating
education programs; and
(iii) Exercise supervision of these employees.
(2) Define responsibilities for employees providing technical and
coordinating assistance for support services to the Director, Office of
Indian Education Programs and his/her subordinates, including
procurement, contracting, personnel, and other administrative support
areas.
(44 FR 58103, Oct. 9, 1979. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 49 FR 12702, Mar. 30, 1984)
25 CFR 33.8 Realignment of area and agency offices.
The Assistant Secretary -- Indian Affairs shall implement Bureau of
Indian Affairs Area Office and Agency Office reorganizations required to
structure these offices consistent with education program activities to
be undertaken at those levels.
25 CFR 33.9 Development of procedures.
The Director, Office of Indian Education Programs shall prepare and
promulgate procedures to govern the provision of support services by the
Bureau of Indian Affairs for the education function. These procedures
shall be consistent with existing laws, regulations, Executive Orders,
and Departmental policies governing administrative support services.
These provisions shall be prepared in consultation with those personnel
within the Bureau of Indian Affairs who are responsible to the
Commissioner of Indian Affairs for providing support services.
25 CFR 33.10 Issuance of procedures.
The Assistant Secretary -- Indian Affairs, directly or through the
Commissioner of Indian Affairs, shall issue procedures in the Bureau of
Indian Affairs Manual governing the provision of support services to the
Bureau's Education Office function.
25 CFR 33.10 PART 36 -- MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF INDIAN CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS
25 CFR 33.10 Subpart A -- General Provisions
Sec.
36.1 Purpose, scope, and information collection requirements.
36.2 Applicability.
36.3 Definitions.
25 CFR 33.10 Subpart B -- Educational Management
36.10 Standard I -- Philosophy and goals.
36.11 Standard II -- Administrative requirements.
36.12 Standard III -- Program needs assessment.
36.13 Standard IV -- Curriculum development.
25 CFR 33.10 Subpart C -- Minimum Program of Instruction
36.20 Standard V -- Minimum academic programs/school calendar.
36.21 Standard VI -- Kindergarten instructional program.
36.22 Standard VII -- Elementary instructional program.
36.23 Standard VIII -- Junior high/middle school instructional
program.
36.24 Standard IX -- Secondary instructional program.
25 CFR 33.10 Subpart D -- Student Instructional Evaluation
36.30 Standard X -- Grading requirements.
36.31 Standard XI -- Student promotion requirements.
36.32 Standard XII -- Graduation requirements for a high school
diploma.
25 CFR 33.10 Subpart E -- Instructional Support
36.40 Standard XIII -- Library/media program.
36.41 Standard XIV -- Textbooks.
36.42 Standard XV -- Counseling services.
36.43 Standard XVI -- Student activities.
25 CFR 33.10 Subpart F -- Evaluation of Educational Standards
36.50 Standard XVII -- School program evaluation and needs
assessment.
36.51 Standard XVIII -- Office of Indian Education Programs and
Agency monitoring and evaluation responsibilities.
25 CFR 33.10 Subpart G -- Compliance and Waivers
36.60 Compliance for minimum academic standards.
36.61 Waivers and revisions.
25 CFR 33.10 Subpart H -- National Dormitory Criteria
36.70 Scope of subpart.
36.71 General provisions.
36.72 Elementary level dormitories.
36.73 Secondary level dormitories.
36.74 Homeliving (dormitory operations).
36.75 Space and privacy.
36.76 Compliance for the National Criteria for Dormitory Situations.
Authority: 25 U.S.C. 2001, 2002, 2003, Pub. L. 95-561; 5 U.S.C.
301; 25 U.S.C. 2 and 9.
Source: 50 FR 36816, Sept. 9, 1985, unless otherwise noted.
25 CFR 33.10 Subpart A -- General Provisions
25 CFR 36.1 Purpose, scope, and information collection requirements.
(a) The purpose of this rule is to establish minimum academic
standards for the basic education of Indian children for Bureau-operated
schools and for those Indian-controlled contract schools which adopt
these standards and to establish national criteria for dormitory
situations for schools operated by the Bureau of Indian Affairs and for
Indian-controlled contract schools operating dormitories.
(b) These academic standards and dormitory criteria will take effect
thirty (30) days after the date of their publication in the Federal
Register. The Bureau of Indian Affairs intends to review and evaluate
the applicability of the academic standards and dormitory criteria under
this part after two years and make appropriate revisions.
(c) The information collection requirement contained in 36.61(a) has
been approved by the Office of Management and Budget under 44 U.S.C.
3507 and assigned clearance number 1076-0092. The information is being
collected to evaluate waiver request(s) from tribal government(s) and
school board(s). The information will be used to ascertain the approval
of academic waiver request. The obligation to respond is mandatory
under 25 U.S.C. 2001. The information collection requirements contained
in 36.71(g), 36.74(f), and 36.76(b) of this rule are not required to
be approved by the Office of Management and Budget since less than ten
persons or tribes are affected by the information collection requirement
of this rule. However, when ten or more persons or tribes become
affected by this requirement, the Bureau will submit an approval
request.
25 CFR 36.2 Applicability.
(a) The minimum academic standards for the basic education of Indian
children established under this part, subparts B through G, are
mandatory for all Bureau of Indian Affairs operated schools unless a
tribal governing body or the local school board, if so designated by the
tribal governing body, waives, in part or in whole, the standards
established under this part. When a tribe(s) formally takes action to
waive, in total or in part, standards contained in this part, proof of
such action shall be forwarded to the Agency Superintendent for
Education (ASE) or area Education Programs Administrator (EPA). Within
15 days of receipt of such documentation the ASE or EPA shall notify, in
writing, the parents or legal guardians whose children are attending the
school(s) affected.
(b) The minimum academic standards for the education of Indian
children established under subparts B through G are not applicable to
Indian-controlled contract schools unless the Indian-controlled contract
school board formally adopts them in whole or in part. The Bureau will
not refuse to enter into a contract on the basis of failure to meet
these standards but will, through contracting procedures, assist the
school in reaching compliance, if so requested by the Indian-controlled
contract school board.
(c) The national criteria for dormitory situations established under
subpart H will serve as a minimum requirement and shall be mandatory for
all Bureau-operated and Indian-controlled contract schools.
(d) Standards and criteria contained under this part will serve as
minimum requirements for the regular school educational program.
(e) In states where additional minimum academic standards exist or
are established, those state standards shall also apply.
25 CFR 36.3 Definitions.
For purposes of this part, the following definitions apply:
(a) Accreditation means a school has received an official decision by
the State(s) department(s) of education, or another recognized agency
having official authority, that, in its judgment, the school has met the
established standards of quality.
(b) Average daily membership (ADM) means the aggregate days
membership of a given school during a given reporting period divided by
the number of days school is in session during this period. Only days
on which the students are under the guidance and direction of teachers
shall be considered as days in session. The reporting period is
generally a given regular school term.
(c) Agency means the current organizational unit of the Bureau which
provides direct services to the governing body or bodies and members of
one or more specified Indian tribes.
(d) Agency school board as defined in sec. 1139(1), Pub. L.
95-561, means a body, the members of which are appointed by the school
boards of the schools located within such Agency. The number of such
members shall be determined by the Director in consultation with the
affected tribes. In Agencies serving a single school, the school board
of that school shall function as the Agency school board.
(e) Agency Superintendent for Education means the Bureau official in
charge of education functions at an Agency and to whom the school
supervisor(s) and other educators under the Agency's jurisdiction
report.
(f) Area Education Programs Administrator means the Bureau official
in charge of Bureau education programs and functions in a Bureau Area
Office and is responsible for off-reservation residential schools, and,
in some cases, peripheral dormitories and on-reservation day schools not
receiving services from the Agency Superintendent for Education.
(g) Assistant Secretary means the Assistant Secretary for Indian
Affairs of the Department of the Interior.
(h) Basic academic skills means the abilities acquired by
observation, study, or experience in mental and/or physical performance
(e.g., proficiency in planning and investigating, operational
techniques, comprehension, organization, execution, remembrance and
application of knowledge to acquire a desired result) basic to the
mastery of school work or other activity.
(i) Basic education means those components of education emphasizing
literacy in language arts, mathematics, natural and physical sciences,
history, and related social sciences.
(j) Bureau means the Bureau of Indian Affairs of the Department of
the Interior.
(k) Certification means the general process by which the State or
Agency authorized by the State adjudges and stipulates that an
individual meets the established standards which are prerequisite to
employment for a teacher or administrator in education.
(l) Competency means having the requisite abilities, skills, or a
specified level of mastery.
(m) Computer literacy used here means the general range of skills and
understanding needed to function effectively in a society increasingly
dependent on computer and information technology.
(n) Content area means the usual school subjects of instruction, such
as: Language arts, mathematics, science, social studies, fine arts,
practical arts, health, and physical education.
(o) Counselor means a staff member, including those in both academic
and dormitory situations, who helps the students to understand
educational, personal, and occupational strengths and limitations; to
relate abilities, emotions, and aptitudes to educational and career
opportunities; to utilize abilities in formulating realistic plans;
and to achieve satisfying personal and social development.
(p) Course of study means a written guide prepared by administrators,
supervisors, consultants, and teachers of a school system or school, as
an aid to teaching a given course or an aspect of subject-matter content
to a given category of pupil.
(q) Criterion-referenced test means an achievement test designed to
measure specific skills within a subject area. Test results indicate
which skills a student has or has not learned.
(r) Days means calendar days.
(s) Director means the Director of the Office of Indian Education
Programs in the Bureau.
(t) Dormitory means a facility which provides students boarding and
lodging on a temporary residential basis for the purpose of attending a
Bureau-operated or Indian-controlled contract or public school.
(u) Dormitory manager means a staff member who manages the
day-to-day, 24-hour operation of one or more dormitories.
(v) Elementary school is defined as any combination of grades K-8
except when any of these grades are included in the junior high or
middle school level.
(w) Exceptional child program means a program for students who are
eligible to receive education and related services as defined by 25 CFR
39.11(i).
(x) Feeder school means a school whose exiting students are absorbed
by a school offering instruction on the next higher grade level.
(y) Formative evaluation is an evaluation of progress during the
implementation of a program. Its purpose is to provide immediate
feedback on results to enable modifying the processes used in order to
enhance success and prevent failure.
(z) Goals means a statement of what the school system is attempting
to do to meet the comprehensive educational needs and interests of its
pupils, in accordance with its statement of philosophy.
(aa) Grade means the portion of a school program which represents the
work of one regular school year; identified by a designation such as
kindergarten, grade 1 or grade 10.
(bb) Grade level is a designation applied to that portion of the
curriculum which represents the work of one regular school year.
(cc) High school is defined as grades nine through twelve, except
when grade nine is included in the junior high or middle school
organizational unit.
(dd) Indian-controlled contract school means a school that is
operated by a tribal organization and funded under a contract with the
Bureau.
(ee) Indian student means a student who is a member of an Indian
tribe and is one-quarter ( 1/4) or more degree of Indian blood quantum.
(ff) Indian tribe or tribe means any Indian tribe, band, nation,
rancheria, pueblo, colony or community, including any Alaska Native
village or regional or village corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688),
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
(gg) Intense residential guidance means the program for residential
students who need special residential services due to one or more of the
problems as stated in 25 CFR 39.11(h).
(hh) Junior high or middle school is defined as grades seven and
eight, but may include grade six when it is not included in the
elementary school level and/or grade nine when it is not included in the
high school level.
(ii) Kindergarten means a group of students or a class that is
organized to provide educational experiences for children for the year
immediately preceding the first grade.
(jj) Librarian means a certificated school employee whose principal
responsibilities include selection, acquisition, preparation,
cataloging, and circulation of books and other printed materials;
planning the use of the library by teachers and students; and
instructing students in the use of library books and materials, whether
the library is maintained separately or as a part of an instructional
materials center.
(kk) Local school board when used with respect to a Bureau-operated
school means a body chosen in accordance with the laws of the tribe to
be served or, in the absence of such laws, the body elected by the
parents of the Indian children attending a Bureau-operated school. In
schools serving a substantial number of students from different tribes,
the members shall be appointed by the governing bodies of the tribes
affected and the number of such members shall be determined by the
Director in consultation with the affected tribes.
(ll) Objectives means a statement of the general, long-range aims and
the specific, short-range aims which indicate what the school is
attempting to do to meet the needs of the students in accordance with
the philosophy, goals, and policies of the school system.
(mm) Paraprofessional means a staff member who works with and is
under the supervision of a professional staff member but who does not
have full professional status, e.g., teacher aide. The term denotes a
level of knowledge and skills possessed by an individual or required of
an individual to perform an assignment. The level of skills is usually
at a predetermined minimum level.
(nn) Parent means a natural parent or guardian or a person legally
acting as parent.
(oo) Peripheral dormitory is a facility which provides students
boarding and lodging during the school year for the purpose of attending
a public school.
(pp) Regular program student means all students including those
determined to be eligible for services as defined under the Exceptional
Child Program, 25 CFR 39.11(i).
(qq) Residential school means an educational institution in which
students are boarded and lodged as well as taught.
(rr) Residential Services under Exceptional Child Program means a
program providing specialized residential care as determined by 25 CFR
39.11(i).
(ss) School means an educational institution, including elementary,
junior high or middle, high school, peripheral, cooperative, and
contract schools serving students in grades Kindergarten through 12 and
as further defined under 25 CFR 39.2(q).
(tt) School board means an Agency or local school board.
(uu) School day, instructional day, or teaching day is a day on which
the school is open and students are under the guidance and direction of
teachers in instructional activities where the minimum number of
instructional hours are met.
(vv) School Supervisor means the official in charge of a school
and/or peripheral dormitory who reports to an Agency School
Superintendent or an Area Education Programs Administrator, as
appropriate.
(ww) Secretary means the Secretary of the Interior.
(xx) Self-contained class means a class having the same teacher or
team of teachers for all or most of the daily session.
(yy) Standard means the established criterion and/or specified
requirement which must be met and maintained.
(zz) Summative evaluation means a systematic analysis of the results
or products of a program after it is completed. Its purpose is to
determine the extent to which the objectives of the program have or have
not been achieved. One form of summative evaluation compares results
with those of another ''control'' program using different procedures.
Other forms compare results with past results or predetermined target
outcomes.
(aaa) Teacher means a certified staff member performing assigned
professional activities in guiding and directing the learning
experiences of pupils in an instructional situation.
(bbb) Unit/Unit of instruction means a major subdivision of
instruction generally composed of several topics including content and
learning experiences developed around a central focus such as a limited
scope of subject matter, a central program, one or more related
concepts, one or more related skills, or a combination of these. One
unit equals one full year of instruction in a subdividion thereof. Unit
and credit shall be used interchangeably.
25 CFR 36.3 Subpart B -- Educational Management
25 CFR 36.10 Standard I -- Philosophy and goals.
(a) Each school shall develop a written philosophy of education that
addresses the accumulation of knowledge and development of skills,
interests, appreciations, ideals, and attitudes within the school's
total educational program. The educational philosophy shall include but
not be limited to: Conservation of tribal culture and natural
resources, values of democracy, devotion to equality, individual
freedom, political liberty, democratic process, and the mastery of
knowledge. The statement of goals shall include a statement of what the
school is attempting to do to meet the needs and interests of its
students and community, in accordance with the statement of philosophy.
(b) The statement of philosophy and goals shall be developed with the
involvement of students, parents, lay citizens, school staff, and
tribe(s) and shall be formally adopted by the local school board.
(c) The philosophy and goals shall be reviewed annually and revised
as necessary by each school.
(d) A copy of the philosophy and goals shall be submitted to the
Agency Superintendent for Education or Area Education Programs
Administrator, as appropriate.
(e) Informational provisions shall be developed in the form of a
manual, handbook, brochure, or other written document(s) of the minimum
academic standards of the school's programs and the basic rules and
procedures of the school. The staff, students, and parents shall
receive the written document or documents and have same explained to all
who request explanation. The topics covered in the document(s) shall
include but not be limited to the following:
(1) Statement of philosophy and goals;
(2) Description of how policies are developed and administered;
(3) A brief explanation of curricular offerings;
(4) A copy of student rights handbook;
(5) Basic practices related to:
(i) Grading system;
(ii) Graduation requirements, if applicable;
(iii) Attendance policies;
(iv) Special programs at the school; and
(v) Student activities available for students.
25 CFR 36.11 Standard II -- Administrative requirements.
(a) Staffing. Each school shall, at a minimum, meet the following
requirements:
(1) The overall school ratio of regular program students to regular
program teachers in self-contained classrooms shall not exceed the
following except under the conditions set forth in paragraphs (a)(4) (i)
and (ii) of this section. Average daily membership (ADM) shall be used
in meeting the following ratios.
(2) Multi-grade classrooms that cross grade-level boundaries (e.g.,
K-1, 3-4, etc.) shall use the maximum of the lower grade. In grades
K-8, grades shall be consolidated to meet the teacher ratios listed
above.
(3) The daily teaching load per teacher in departmentalized classes
shall not exceed 150 students (ADM) except in activity type classes such
as music and physical education.
(4) Schools exceeding these specific staffing ratios for over 30
consecutive days during one school year shall submit a justification for
a request for a waiver to the Director, through the Agency
Superintendent for Education or Area Education Programs Administrator,
as appropriate, which may be approved for a period not to exceed one
school year and for the following reasons:
(i) Additional classroom space is not available for establishing
another class; or
(ii) The school, Agency, Area and Office of Indian Education Programs
Applicant Supply File has been exhausted and the required teacher
position cannot be filled. However, efforts to fill the vacancy shall
be continued.
(5) Each school shall provide, in the absence of a regular teacher, a
certified substitute teacher who meets the State substitute teacher
qualifications. In the event that such a substitute is not available,
coverage will be provided by a school employee designated by the school
supervisor. A class cannot have as a teacher an employee without
teaching credentials for more than 20 school days during any one school
year.
(b) Written school enrollment and attendance policies. Each school
shall have written school enrollment and attendance policies in
compliance with and/or consistent with 25 CFR 31, Federal Schools for
Indians, the statutes of the State, and tribal education ordinances.
(c) Geographic attendance boundaries. Each Agency Superintendent for
Education shall establish and implement non-overlapping geographic
attendance boundaries within that Agency for each school within the
administrative jurisdiction of that Agency. The establishment of such
geographic boundaries shall require coordination with contiguous
Agencies within the Area and consultation with the Agency or other
relevant school boards and/or tribes and shall be reviewed each year to
appropriately adjust for geographic changes in enrollment, changes in
school capacities, and improvement of day school opportunities for
students. The Director shall establish and implement geographic
attendance boundaries for each off-reservation boarding school under
his/her administrative jurisdiction. The establishment of geographics
boundaries shall require coordination with other Area Education Programs
Administrators similarly affected by the requirement of this part, the
affected tribes, and the Director.
25 CFR 36.12 Standard III -- Program needs assessment.
The policy and procedures of each school and its curricula shall be
developed and revised based on an assessment of educational needs. This
needs assessment shall be conducted at least every seven (7) years at
the same frequency as required in 36.50, School Program Evaluation.
This assessment shall include at least the following:
(a) A clear statement of student educational goals and objectives. A
student educational goal is defined as a statement of the knowledge,
skills, attitudes, or concepts students are expected to exhibit upon
completion of a grade level. Student educational objectives are defined
as statements of more specific knowledge, skills, attitudes, or concepts
students must exhibit in order to achieve the goal.
(b) The collection of appropriate data from which valid
determinations, judgments, and decisions can be made with respect to the
status of the educational program, e.g.,
(1) Perceptions of the parents, tribes, educators, and the students
with regard to the relevance and importance of the goals.
(2) The extent to which educational goals and objectives have been
achieved.
(3) The data developed as a result of the evaluation outlined in
36.50 School Program Evaluation.
(c) A statement of educational needs which identifies the difference
between the current status of students and the desired goals for the
students.
(d) A plan of action to remediate assessed needs.
25 CFR 36.13 Standard IV -- Curriculum development.
(a) Each school shall implement an organized program of curriculum
development involving certified and non-certified staff and shall
provide the opportunity for involvement by members of the local
community.
(b) Curriculum development program activities shall be based on an
analysis of school programs and shall be related to needs assessment and
evaluation.
(c) Each school shall involve staff and provide the opportunity for
involvement by the tribal community in planning programs, objectives,
and activities which meet student/teacher needs.
25 CFR 36.13 Subpart C -- Minimum Program of Instruction
25 CFR 36.20 Standard V -- Minimum academic programs/school calendar.
(a) Each school shall meet the applicable minimum program of
instruction provided in this subpart and, where applicable, the
graduation requirements under 36.32. A school that has difficulty in
meeting these minimum academic program requirements may seek alternative
ways of meeting some portions of the minimum program. For example,
courses may be taught in alternate years. Should a school wish to adopt
alternative measures, the school shall submit a request for approval to
the Agency Superintendent for Education or Area Education Programs
Administrator, as appropriate, for the adoption of alternative measures
with a written justification as to how this action will meet the
applicable minimum program of instruction.
(b) Length of school term and day. All schools shall provide an
educational program of studies which is conducted for not less that 180
instructional days per school term. Regular program students shall be
in instructional activities, exclusive of lunch (which must be at least
30 minutes a day), in accordance with the following minimums:
Kindergarten -- 2.5 instructional hours/day; grades 1-3 -- 4.5
instructional hours/day; grades 4-6 -- 5.0 instructional hours/day;
grades 7-12 -- 5.5 instructional hours/day.
(c) If an emergency arises from an uncontrollable circumstance during
the school day which results in the dismissal of students by the school
administration, the day may be counted as a school day provided that
three-fourths of the instructional hours are met.
(d) The educational program shall include multi-culture and
multi-ethnic dimensions designed to enable students to function
effectively in a pluralistic society.
(e) All intraschool programs (e.g., library, instructional labs,
physical education, music, etc.) which are directly related to or affect
student instruction shall provide services from the beginning of the
school term through the final class period at the close of the school
term.
25 CFR 36.21 Standard VI -- Kindergarten instructional program.
(a) The curriculum for kindergarten shall provide children with
experiences which emphasize language development, native language where
necessary as determined by 25 CFR 39.11(g), and performance of the
requirements in paragraph (b) of this section. Such programs shall
assist children in developing positive feelings toward themselves and
others.
(b) A kindergarten instructional program shall include but not be
limited to:
(1) Language (observing, listening, speaking).
(2) Exploration of the environment (number, space and time
relationships, natural science).
(3) Psychomotor and socialization development.
(4) Development of imaginative and creative tendencies.
(5) Health education inclusive of the requirements contained in the
Act of May 20, 1886, 24 Stat. 69.
25 CFR 36.22 Standard VII -- Elementary instructional program.
(a) The elementary instruction programs, grades one through six,
shall include but need not be limited to:
(1) Language arts.
(2) Mathematics.
(3) Social studies.
(4) Sciences.
(5) Fine arts.
(6) Physical education.
(b) Each school shall integrate the following content areas into its
curriculum:
(1) Career awareness,
(2) Environmental and safety education,
(3) Health education (includes requirements contained in 24 Stat.
69),
(4) Metric education, and
(5) Computer literacy.
25 CFR 36.23 Standard VIII -- Junior high/middle school instructional
program.
(a) The instructional program shall reflect the school's philosophy
and the needs of the students and the community. It shall be part of a
progressive development that begins in the elementary program which
precedes it and continues to the secondary program which follows.
(b) The curriculum shall include the following required instructional
content areas at each grade level but need not be limited to:
(1) Language arts. One unit shall be required of each student every
year.
(2) Social studies. One unit shall be required of each student every
year.
(3) Mathematics. One unit shall be required of each student every
year.
(4) Science. One unit shall be required of each student every year.
(5) Fine arts and practical arts. One unit each shall be required of
each student in the junior high/middle school instructional program.
(6) Computer literacy. One unit shall be required of each student in
the junior high/middle school instructional program.
(7) Physical education. One unit shall be required of each student
in the junior high/middle school instructional program.
(c) The following content areas shall be integrated into the
curriculum.
(1) Career exploration and orientation.
(2) Environmental and safety education.
(3) Metric education.
(4) Consumer economics (including personal finances).
(5) Health education (includes meeting the requirements contained in
24 Stat. 69).
(d) Languages other than English are encouraged to be offered as a
content area beginning at junior high/middle school level.
(e) Student enrollment in any laboratory or vocational exploration
class shall be consistent with applicable health and safety standards.
25 CFR 36.24 Standard IX -- Secondary instructional program.
(a) The secondary instructional program shall reflect the philosophy
of the student, tribe, community, and school, and an awareness of the
changing world.
(b) The secondary instructional curriculum shall include the
following content areas:
(1) Language arts (communication skills).
(2) Sciences.
(3) Mathematics.
(4) Social studies.
(5) Fine arts and practical arts.
(6) Physical education.
(7) Languages other than English.
(8) Driver education. (See guidelines available from the applicable
State Department of Education.)
(9) Vocational education. Curriculum shall be designed and directly
related to actual occupational trends (national, regional, and local)
and to introduce and familiarize students with various occupations in
technology, industry and business, as well as required special skills
and the training requisites. Programs shall be directed toward
assisting students in making career choices and developing consumer
skills and may include the following:
(i) Vocational exploration,
(ii) Vocational skill development, and
(iii) School/on-the-job cooperative education programs.
(c) The following shall be integrated into the curriculum:
(1) Consumer economics (including personal finances),
(2) Metric education,
(3) Safety education, and
(4) Health education. (In addition, the program shall meet the
requirements contained in 24 Stat. 69.)
(d) The high school program shall provide program coordination with
feeder schools, career direction, and preparation for the student
entering independent living through employment, post-secondary
education, and/or marriage.
(e) Yearly class schedules shall take into account the graduation
requirements of each student.
(f) Student enrollment in any laboratory or vocational class shall be
consistent with applicable health and safety standards.
25 CFR 36.24 Subpart D -- Student Instructional Evaluation
25 CFR 36.30 Standard X -- Grading requirements.
(a) Each school shall implement a uniform grading system which
assesses a student's mastery of the prescribed objectives of the courses
of study undertaken. The mastery of prescribed course objectives shall
be the primary measure of academic attainment for reporting student
grades on report cards.
(b) The information derived from student instructional evaluations
shall be shared with the student and with the parents and shall be used
to give teachers and students direction for subsequent learning
activities.
(c) Parent/teacher and parent/teacher/student conferences focused on
the student's instructional progress and development shall be held,
where feasible and practical, to provide an additional means of
communication between home and school. Residential schools may meet
this standard by documenting the communication of student grades on
report cards to parents.
(d) Each school shall issue a report card to parents of students who
are under the age of eighteen (18) and to students eighteen (18) years
of age and older on a regular basis, but not less than four (4) times
yearly. The report card shall include, but not be limited to, the
following sections:
(1) Recommendations and probable promotion status;
(2) Appropriate signatures and request for return of report cards;
and
(3) Student attendance record.
(e) A summary of each year's final card shall become part of the
student's permanent school record.
25 CFR 36.31 Standard XI -- Student promotion requirements.
Each school shall establish and implement a promotion policy which
shall be submitted to and approved by the local school board and Agency
Superintendent for Education or Area Education Programs Administrator,
as appropriate. The requirements shall include, but not be limited to,
the following:
(a) Each grade level or equivalent shall have a minimum criteria for
student promotion based primarily on measurable mastery of the
instructional objectives.
(b) Criterion-referenced tests that evaluate student skills shall be
utilized for measuring the mastery of instructional objectives. The
evaluation results shall form the basis for the promotion of each
student.
(c) A student who has not participated, either directly or through
approved alternative instructional methods or programs, in a minimum of
160 instructional days per academic term or 80 instructional days per
semester without a written excused absence shall not be promoted. A
school board or a school committee may review a promotion decision and,
if warranted due to compelling and/or extenuating circumstances, rescind
in writing such action on a case-by-case basis. Alternative
instructional methods shall be submitted in writing for approval by the
Agency Superintendent for Education or Area Education Programs
Administrator, as appropriate.
25 CFR 36.32 Standard XII -- Graduation requirements for a high school
diploma.
Graduation requirements contained under this section shall be applied
beginning with the graduating class of the 1987-88 school year.
(a) Satisfactory completion of a minimum number of units shall be the
measure for the issuance of a high school diploma.
(b) To graduate, a student shall earn 20 units in a four year high
school program unless the state in which the school is located exceeds
these requirements, in which case the state's requirements shall apply;
fifteen (15) units shall be required as follows:
(1) Language arts -- four (4) units.
(2) Mathematics -- three (3) units.
(3) Social studies -- three (3) units.
(i) One (1) unit in United States history;
(ii) One-half ( 1/2) unit in civics/government;
(iii) One-half ( 1/2) unit in tribal history/government;
(iv) One-half ( 1/2) unit in Indian studies; and
(v) One-half ( 1/2) unit in any other social studies;
(4) Science -- two (2) units.
(i) One (1) unit in the general science area.
(ii) One (1) unit in laboratory science areas, i.e., chemistry,
physics, biology, zoology, laboratory anatomy.
(5) Physical education -- one (1) unit.
(6) Practical arts -- one (1) unit. Credit in any vocational course
may also be used to satisfy this required unit.
(7) Fine arts -- one (1) unit. Music, art, dance, drama, theatre,
and other fine arts courses may be used to satisfy this required unit.
These are minimum requirements; local schools may establish academic or
vocational requirements beyond those prescribed by these standards.
(c) A school with an average enrollment of fewer than 75 students may
offer subjects in alternate years. If schools use this pattern,
alternating pairs of subjects shall be listed and approved by the Agency
Superintendent for Education or Area Education Programs Administrator,
as appropriate.
(d) Credits earned through approved correspondence or extension study
may be accepted if such credits are from schools approved or accredited
by the state in which they are located or by a college or university
which is regionally accredited for such purposes.
(e) Students who successfully complete the requirements of the High
School Proficiency Examination in the State in which the school is
located shall receive an endorsement so stating on their diplomas.
25 CFR 36.32 Subpart E -- Instructional Support
25 CFR 36.40 Standard XIII -- Library/media program.
(a) Each school shall provide a library/media program which shall, as
a minimum, meet the applicable state and/or regional standards, but
shall not be limited to these, and shall include the following:
(1) A written set of instructional and service objectives shall be
established that is intergrated and consistent with the school's
educational goals and philosophy. The librarian or educational media
specialist, with students and staff, shall set objectives based on
assessed academic and residential needs. The program and services will
be evaluated yearly by the principal and the librarian or educational
media specialist to determine the degree to which all objectives have
been met.
(2) A written policy for the selection of materials and equipment
shall be developed by a library committee in collaboration with the
librarian and be approved by the school board. The colleciton of
materials shall include as a minimum the following:
(i) A collection of books suitable for the range of student abilities
and interests being served in the following ADM ratios.
(A) Elementary K-6, 15 books per student
(B) Middle 7-8, 12 books per student
(C) Secondary 9-12, 10 books per student
It is required that materials pertaining to Indian Tribes and/or
Alaskan Natives be integrated within this basic collection.
(ii) Eight (8) to 12 percent of the basic collection must be composed
of reference books, currently relevant and in a state of good physical
condition, for practical use. Single copies of the principal textbooks
used to complement instruction shall be in the collection, but textbooks
cannot be counted toward this standard.
(iii) A periodical collection, suitable for the range of student
abilities and interests being served, consisting of one (1) periodical
for every ten (10) students, shall be maintained. Schools of over 200
will have a base collection of 20 periodicals.
(iv) A professional collection for the school staff shall be
developed and maintained by the librarian in cooperation with a faculty
committee.
(v) A variety of audio-visual materials, suitable for the range of
instruction being provided, of at least 750 items or five (5) items for
each student, whichever is larger, and inclusive of materials located in
the classrooms shall be maintained. This category includes some of each
of the following: Tactile objects, globes, models, maps, films,
film-strips, microforms, slides, audio and video tapes, recordings,
transparencies and graphics, and the equipment to use all of these.
Multiple items within a specific set of materials will be counted as
separate items.
(3) There shall be a library media center serviced by a librarian.
Schools with fewer than 200 students are encouraged, wherever feasible,
to cooperate in sharing librarian resources. Schools within an Agency
and/or Area may cooperatively share the costs and services of a
librarian who shall facilitate sharing of the combined available
resources among the cooperating schools in accordance with the following
ratios:
Up to 100 -- 1/5 time librarian
101-200 -- 1/5 time librarian and 1/2 time library aide or 20 hours
of library activity
201-400 -- 1 full-time librarian or 2/5 time librarian provided the
school has a full-time library aide
401+ -- 1 full-time librarian and a full-time library aide
(4) All libraries must conduct an annual inventory of available
books, materials, and equipment in accordance with the acquisitions and
selection policies.
25 CFR 36.41 Standard XIV -- Textbooks.
(a) Each school shall establish a textbook review committee composed
of teachers, parents, and students, and school board members.
Appointment to the textbook review committee shall be subject to school
board approval.
(b) The textbook review committee shall establish a procedure and
criteria for the annual review of textbooks and other materials used to
complement instruction. The criteria shall include, but not be limited
to, the following:
(1) The textbook content shall meet the course objectives which are
within the adopted school curriculum.
(2) The textbooks shall, as much as possible, reflect cultures
accurately.
(3) The textbooks shall be current, in good physical condition, and
varied in reading levels.
(c) Each school shall equitably distribute instructional materials to
all classrooms. Each school shall inventory all property and equipment
annually prior to requisitioning additional materials. Copies of the
inventory shall be kept on file by the school staff.
25 CFR 36.42 Standard XV -- Counseling services.
Each school shall offer student counseling services concerned with
physical, social, emotional, intellectual, and vocational growth, as
determined, under this part, for each individual and the school as a
whole through a school-wide testing program.
(a) School-wide testing requirements. Each Agency shall institute
and supervise a uniform testing program for its schools in order to
provide for the objective assessment of student academic performance.
Required formal tests will be administered annually to all regular
program students in grades two through 12; first grade may be included
where appropriate. These formal tests and their subject content will
include, but not be limited to, the following:
(1) A pre-test and post-test from nationally-normed and standardized
achievement tests which can be nationally correlated in the content
areas of reading, language arts, and mathematics to be administered in
September and May of each school year or the norming dates of the test.
(2) Each school shall report, as directed, the summative ressults of
all formal tests under paragraphs (a)(1) of this section to the Agency
or Area, as appropriate, and respective school boards. Parents shall be
informed of the results of such tests for their children.
(3) Each Agency or Area, as appropriate, shall report results of all
formal tests under paragraph (a)(1) of this section to the Office of
Indian Education Programs.
(b) Each counseling program shall provide the following:
(1) Each school having a minimum school ADM of 200 students shall
make provisions for the full-time professional services of a counselor,
and each school enrolling fewer than 200 students shall make provisions
for a part-time professional counselor.
(2) The counselors shall be familiar with the unique tribal, social,
and economic characteristics of students.
(3) The counseling program shall contain the following:
(i) A written referral procedure;
(ii) Counseling techniques and documentation procedures to provide
for the career, academic, social, and personal needs of the students
which are based on the cultural beliefs and values of the students being
served;
(iii) Preventative and crisis counseling on both individual and group
bases;
(iv) Confidentiality and security of counseling records for each
student; and
(v) Design and implementation of orientation programs to facilitate
the pupil's transition from elementary to junior high/middle school and
from junior high/middle school to high school.
(vi) Each junior or middle school and high school student shall
receive academic counseling a minimum of twice yearly during which time
the counselor shall assist the student in developing a written academic
and career plan based on ability, aptitude, and interests.
Additionally, counselors will assist high school students in selecting
courses which satisfy the school's and the state's graduation
requirements and the student's academic and career plan. Further,
seniors will be given aid in completing registration and/or financial
assistance applications for either vocational or academic post-secondary
institutions.
(vii) Each high school counseling program shall be required to have
on file for each student a planned academic program of studies which is
available from the regular course offerings of the school to meet the
student's career objectives and which will show that the student has
received counseling.
25 CFR 36.43 Standard XVI -- Student activities.
All schools shall provide and maintain a well-balanced student
activities program based on assessment of both student and program
needs. Each activity program shall help develop leadership abilities
and provide opportunities for student participation but not be limited
to activities that include special interest clubs, physical activities,
student government, and cultural affairs. The activity program shall be
an integral part of the overall educational program.
(a) All student activities shall be required to have qualified
sponsors and be approved by the school supervisor, and the school board
shall approve the overall activity plan. A qualified sponsor is a
professional staff member of the school that is given responsibility to
provide guidance or supervision for student activities.
(b) A plan of student activity operations shall be submitted, by each
activity at the beginning of each school year, to the school supervisor.
The plan will include the purpose, structure, coordination, and planned
types of fund-raising activities.
(c) School may participate in interscholastic sports and activities
on an informal or formal basis. On an informal basis, the
Bureau-operated schools will coordinate with other schools in setting up
a schedule of sports and games. Schools that participate in
state-recognized leagues will abide by those state rules regulating
inter-school competition.
(d) Until comparable competitive opportunities are provided to all
students, regardless of sex, no student shall be barred from
participation in interscholastic competition in noncontact sports except
on the basis of individual merit.
(e) Residential schools shall plan and provide an intramural program
for all students. The program shall include a variety of scholastic and
sport activities.
(f) Students shall be involved only in activities which are
sanctioned by the school.
(g) All student activities involved only in fund raising are required
to establish a school/student activity bank account following
school/student banking procedures outlined under 25 CFR 31.7. All
student activity accounts shall be audited annually.
(h) The school shall provide for the safety and welfare of students
participating in school-sponsored activities.
(i) Each sponsor of a student activity will be given orientation and
training covering the responsibilities of a sponsor by the school
supervisor.
25 CFR 36.43 Subpart F -- Evaluation of Educational Standards
25 CFR 36.50 Standard XVII -- School program evaluation and needs
assessment.
Each school shall complete a formal, formative evaluation at least
once every seven (7) years beginning no later than the second complete
school year following the effective date of this part. Schools shall
follow state and/or regional accreditation, or accreditation
requirements equal to the state in which a school is located. Each
school shall follow the prescribed evaluation cycle. The primary
purpose of this evaluation will be to determine the effects and quality
of school programs and to improve the operations and services of the
school programs.
(a) Each school's evaluation design or model will provide objective
and quantitative analysis of each area to be evaluated. The analysis
shall include product and process evaluation methods. The areas to be
reviewed will include, but not be limited to, the following:
(1) School philosophy and objectives.
(2) Administrative and organizational requirements.
(3) Program planning and implementation.
(4) Curriculum development and instruction.
(5) Primary education.
(6) Program of studies for elementary, junior high/middle, and high
schools.
(7) Grading requirements.
(8) Promotion requirements.
(9) High school graduation requirements.
(10) Library/media.
(11) Textbooks and other instructional materials.
(12) Counseling services.
(13) Medical and health services.
(14) Student activities.
(15) Transportation services.
(16) Staff certification and performance.
(17) Facilities (school plant).
(18) Parent and community concerns.
(19) School procedures and policies.
(20) School board operations.
(b) The Director, within six (6) months from the effective date of
this part, shall distribute to each school, Agency or Area, as
appropriate, a standardized needs assessment and evaluation instrument
with guidelines for developing and applying a locally appropriate
evaluation model for carrying out the requirements of this standard.
25 CFR 36.51 Standard XVIII -- Office of Indian Education Programs and
Agency monitoring and evaluation responsibilities.
(a) The Office of Indian Education Programs shall monitor and
evaluate the conformance of each Agency or Area, as appropriate, and its
schools with the requirements of this part. In addition, it shall
annually conduct onsite monitoring at one-third of the Agencies and
Areas, thereby monitoring onsite each Agency and/or Area at least once
every three (3) years. Within 45 days of the onsite visit, the Director
shall issue to each Agency Superintendent for Educaton or Area Education
Programs Administrator, as appropriate, a written report summarizing the
monitoring findings and ordering, as necessary, required actions to
correct noted deficiencies.
(b) Each Agency or Area, as appropriate, in conjunction with its
school board shall monitor and evaluate the conformance of its school
with the requirements of this part through an annual onsite evaluation
involving one-third of the schools annually, thereby monitoring onsite
each school at least once every three (3) years. Within 30 days of the
onsite visit, the Agency Superintendent for Education or Area Education
Programs Administrator, as appropriate, shall issue to the local school
supervisor and local school board a written report summarizing the
findings and ordering, as necessary, required actions to correct noted
deficiencies.
(c) Schools, Agencies, and Areas shall keep such records and submit
to the responsible official or designee accurate reports at such times,
in such form, and containing such information as determined by that
official to be necessary to ascertain conformance with the requirements
of this part.
(d) Schools, Agencies, and Areas shall permit access for examination
purposes by the responsible official, or any duly authorized designee,
to any school records and other sources of information which are related
or pertinent to the requirements of this part.
(e) The Office of Indian Education Programs, Agency Superintendent
for Education, or Area Education Programs Administrator, as appropriate,
shall annually conduct a summative evaluation to assess the degree to
which each Bureau educational policy and administrative procedure
assists or hinders schools in complying with the requirements of this
part. This will include, but not be limited to, the following actions:
(1) Evaluate current policies and practices not related to this part
and the effects thereof on the amount of time and resources required
which otherwise would be available for these standards;
(2) Modify any policies and practices which interfere with or
compromise a school's capability to achieve and maintain these
standards;
(3) Invite non-Federal agencies to evaluate the effects current
policies and procedures have had on complying with the requirements of
this part; and
(4) Submit annually to the Director a copy of the summative
evaluation.
25 CFR 36.51 Subpart G -- Compliance and Waivers
25 CFR 36.60 Compliance for minimum academic standards.
Implementation of these standards shall begin immediately on the
effective date of this part.
(a) A school is in compliance when it has met and satisfied all the
requirements of these standards.
(b) Each school supervisor shall, within 45 days after the start of
each school term, submit a compliance report to the local school board;
within 15 days thereafter, the compliance report shall be submitted to
the Agency Superintendent for Education or the Area Education Programs
Administrator, as appropriate, which attests to whether a school is in
compliance or noncompliance.
(c) In those instances where a school does not meet the requirements
of these standards, the school supervisor shall inform the parents or
legal guardians by letter no later than 60 days after the start of each
school term.
(d) The compliance report shall contain the following:
(1) A written statement attesting to the fact that the school has or
has not met all of the requirements.
(2) A specific listing of the requirements which have not been met.
(3) A summary of an action plan designed to correct deficiencies.
(4) A statement signed by the local school board attesting to the
fact that it has been apprised of the school's compliance status and
concurs or does not concur with the action plan to reach compliance.
(e) The Agency Superintendent for Education or the Area Education
Programs Administrator, as appropriate, shall review each school's
compliance report and shall provide the Director with a summative report
by November 15 of each year which includes:
(1) A listing of those schools not in compliance.
(2) A detailed statement as to why each school is not in compliance
and how it proposes to reach compliance.
(3) A plan of action outlining what actions the Agency Superintendent
for Education or Area Education Programs Administrator will take to
assist the school(s) to reach compliance.
(f) In the event a school is not in compliance for two consecutive
years due to conditions which can be corrected locally, appropriate
personnel actions shall be initiated at all applicable levels of school
administration. Noncompliance may be acceptable grounds for dismissal.
(g) The Secretary shall submit to the appropriate committees of
Congress at the time of the annual budget request a detailed plan to
bring all Bureau and contract schools up to the level required by the
applicable standards established under sec. 1121 of Pub. L. 95-561, 25
U.S.C. 2001.
25 CFR 36.61 Waivers and revisions.
(a) The tribal governing body, or the local school board if so
designated by the tribal governing body, shall have the local authority
to waive, in part or in whole, the standard(s) established in this part,
where the standard(s) is deemed by such body to be inappropriate and
shall also have the authority to revise such standard(s) to take into
account the specific needs of the tribe's children. This includes
Bureau-operated schools. When the tribal governing body, or local
school board if so designated by the tribal governing body, waives the
standard(s) or part thereof, it shall within 60 days submit revised
standard(s) to the Assistant Secretary for approval. In the interim
between the waiver of the standard(s) and the approval of the revised
standard(s), the standards of this part or minimum state standards shall
apply to the affected school(s). In the notice of the waiver, the
tribal governing body or its designee shall state whether the standards
in this part or the minimum state standards apply to the affected
school(s) for such interim period. The Assistant Secretary shall
respond to the revised standard(s) within 45 days of receipt. Revised
standard(s) shall be established by the Assistant Secretary unless
specifically rejected by the Assistant Secretary for good cause and in
writing. The written notice of rejection shall be sent to the affected
tribe(s) and local school board. Such rejection shall be final. All
revised standards shall be submitted to the Assistant Secretary in
writing and will adhere to the following procedure:
(1) Waivers and revisions must be submitted at least 75 days prior to
the beginning of the school term.
(2) The section or part of the standard to be waived must be
specified, and the extent to which it is to be deviated from shall be
described.
(3) A justification shall be included with a revised standard, which
explains why the alternative standard is considered necessary.
(4) Measurable objectives of the alternative standard(s), the method
of achieving the alternative standard(s), and the estimated cost of
implementation must be stated.
(b) The Assistant Secretary shall assist the school board of an
Indian-controlled contract school in the implementation of the standards
established under this part if the school board requests that these
standards, in part or in whole, be implemented. At the request of an
Indian-controlled contract school board, the Assistant Secretary shall
provide alternative or modified standards to those established in this
part to take into account the needs of the Indian children and the
Indian-controlled contract school.
25 CFR 36.61 Subpart H -- National Dormitory Criteria
25 CFR 36.70 Scope of subpart.
This subpart contains the criteria and mandatory requirements for all
dormitories. The individual employee responsibilities, based on the
terminology used to designate specific employee positions and their
assigned responsibilities, may vary depending upon whether the dormitory
is a direct Bureau operation or contract operation.
25 CFR 36.71 General provisions.
(a) The Homeliving Specialist is the administrative head of the
dormitory who shall have sufficient autonomy and authority to ensure the
successful functioning of all phases of the dormitory program, and, in
dormitories attached to a school, shall report to the school supervisor.
(b) In situations where a Bureau-funded dormitory is maintained,
operated, and administered separately from the academic program, this
dormitory will ensure access to or provide a guidance program equal to
the standards as those under 36.42 of this part.
(c) Students who qualify for residential services under the
Exceptional Child Program must have, in their individualized education
plan, objectives that are to be met in the homeliving program.
Documentation to support completion of these objectives is required.
(d) Dormitories with intense residential guidance programs shall have
updated written descriptions of the programs with stated purposes,
objectives, activities, staffing, and evaluation system. Each student
diagnosed as being in need of intense guidance services shall have a
file which contains the following:
(1) Documentation of eligibility according to the definition
contained under 25 CFR 39.11(h);
(2) Documentation of a diagnosis of the student's needs;
(3) A placement decision signed by a minimum of three (3) staff
members;
(4) An individualized treatment plan which includes:
(i) Referral date and referral sources;
(ii) Diagnosis identifying specific needs;
(iii) Specific goals and objectives to be met;
(iv) Record of specific services including beginning and ending
dates;
(v) Designation of responsible staff person(s); and
(vi) A means by which the student's progress and the effectiveness of
the individualized treatment plan can be periodically reviewed and
reevaluated.
(e) Each dormitory program that does not have an academic program
under subpart C shall make available career counseling information on
educational and occupational opportunities and help students assess
their aptitudes and interests. This shall be done on a continuing
basis, beginning at the elementary level.
(f) Counseling services shall be made available for students during
non-academic hours.
(g) Provisions shall be made to interpret to staff, students, and
parents the administrative policies and practices of the dormitory.
This provision shall be made in the form of a manual, handbook,
brochure, or other written document that will be made available and
explained to all who are interested. The topics shall include, but not
be limited to, the following:
(1) Statement of philosophy and goals;
(2) Description of how policies are developed and administered; and
(3) A copy of the student rights handbook.
(h) Program will be designed and orientation programs implemented to
facilitate the pupils' transition from elementary to middle school and
from middle to high school, where appropriate.
(i) All dormitories shall provide and maintain a well-balanced
student activities program based on assessment of both student and
program needs. Programs shall provide opportunities for student
participation in, but not limited to, activities that include special
interest clubs, physical activities, student government, and cultural
affairs. In addition, the following provisions shall be adhered to:
(1) Dormitories shall plan and provide for an intramural program that
includes a variety of scholastic and sport activities.
(2) A plan of operation shall be submitted by each activity at the
beginning of each school year to the school supervisor and approved by
the school board. The plan shall include the purpose, structure, and
coordination of all activities.
(3) All dormitories conducting fund-raising activities are required
to established a school/student activity bank account following
school/student banking procedures outlined under 25 CFR part 31.7. All
accounts shall be audited annually.
25 CFR 36.72 Elementary level dormitories.
(a) Each dormitory program shall provide or have access to the
services of a qualified counselor who holds a valid counselor
certificate and has training and experience in dealing with elementary
students.
(b) Counselors may be assigned minimal or temporary school
supervisory duties. A school supervisor shall not serve in the capacity
of counselor while holding the position of school supervisor.
(c) The dormitory program shall have the following ratios (ADM) for
counselors:
Less than 75 students: 1/2 time counselor
75-150 students: 1 full-time counselor
151-225 students: 1 full-time and 1/2 time counselor
226-300 students: 2 full-time counselors
For dormitories that exceed 300 students (ADM), additional counselor
time shall be provided according to the above ratio. Dormitories within
an Agency are encouraged to try a variety of approaches to guidance
service. In this arrangement, the counselor's time may be shared
between dormitories. As long as one half-time, professionally-trained
counselor is provided, the dormitory program may use supportive
personnel and teachers to meet the ratio.
(d) Dormitory counselors' work hours shall be arranged to provide
maximum availability of services to students when they are not in
academic session.
25 CFR 36.73 Secondary level dormitories.
(a) Each dormitory program shall provide or have access to the
services of a qualified counselor who holds a valid counselor
certificate and has training and experience dealing with secondary
students.
(b) Counselors may be assigned minimal or temporary school
supervisory duties. A school supervisor shall not serve in the capacity
of a counselor while holding a position as a school supervisor.
(c) The dormitory program shall have the following ratios (ADM) for
counselor:
Less than 100 students: 1/2 time counselor
100-199 students: 1 full-time counselor
200-300 students: 1 full-time and 1/2 time counselor
For dormitories that exceed 300 students (ADM), counselor time will
be provided according to the above radio. As long as one half-time,
professionally trained counselor is provided, the dormitory program may
use supportive personnel and teachers to meet the ratio.
(d) Counselors' work hours shall be arranged to provide maximum
availability of service to students when they are not in academic
session.
25 CFR 36.74 Homeliving (dormitory operations).
Staff shall be provided so that at least one adult is on duty at all
times when students are in the dormitory. Each dormitory program shall
include, but not be limited to, the following:
(a) Every dormitory facility shall be under the direct supervision of
a dormitory manager. A building composed of separate wings or several
floors shall be counted as one facility.
(b) Each dormitory operation shall provide the following minimum
on-duty paraprofessional staff to student ratio (ADM):
Dormitory operations for grades one through eight are encouraged to
provide additional staff aides during the time children in the primary
grades are dressing and preparing for breakfast and school. Staff
ratios on weekends shall be reduced at boarding schools to adjust for
those students who go home, according to the above ratio.
(c) Group instruction and discussion session shall be held on various
topics at least on a monthly basis, but preferably on a weekly basis.
Topics to be presented may be determined by a committee comprised of
students, staff, administrators, and parents. These topics shall
include discussions of problems or needs that exist at the location
and/or community.
(d) Each dormitory facility shall be cleaned daily when in operation
to provide a safe and sanitary environment. Student assistance may be
utilized; however, the responsibility for the cleanliness, safety, and
sanitation of the facility shall rest with the dormitory administrator.
Bed and bath linen shall be changed a minimum of once per week.
Necessary toiletry items shall be made available to those students who
are economically unable to provide them.
(e) Dormitory operations shall have access to clothes washers and
dryers. Equipment shall be utilized only for students' clothing. In
grades one through six, residential paraprofessionals shall be
responsible for the upkeep of clothing. Students in grades seven
through 12 shall be responsible for the upkeeping of their own clothing.
In grades seven through 12, students shall be allowed to wash and dry
their clothing after training is given in using the machines.
Contracting for student clothing care may also be utilized under this
part.
(f) A system of student accountability shall be established at each
residential facility. Minimum requirements of the system shall include
an attendance procedure at least four (4) times per normal waking day
for grades one through eight and two (2) times for grades nine through
12. However, students in grades seven through 12 may be allowed to have
a self check-in system provided that an employee reviews the roster
within an hour of each designated check-in time. During sleeping hours,
students in grades one through eight shall be checked on an hourly
basis; students in grades nine through 12 shall be checked every two
(2) hours. At the start of each school day, residential facilities
supervisors shall report to the school office which students will not be
in attendance. An intra-school pass system shall be developed and
implemented.
(g) Students shall be permitted to be released from the dormitory
overnight, on weekends, or during vacation periods only when prior
written approval is granted by the parent or guardian and only if the
local school board adopts a policy governing the conditions of release.
Such policy must adhere to the concept that the dormitory/school is
acting in ''loco parentis.''
(h) Dormitory facilities shall have a designated room or rooms which
shall be utilized as an isolation room(s) for student health care needs.
Students isolated in such room(s) shall be checked on a minimum of an
hourly basis.
(i) Each dormitory operation shall develop a written procedure for
handling emergency situations. Such a procedure shall include names and
telephone numbers of the responsible parties to contact in case of
emergencies. Situations that shall be considered emergencies include
life-threatening medical/health problems, power failures, walkaways,
etc.
(j) A tutoring program shall be developed and implemented to assist
those students having academic difficulties. Each dormitory operation
shall provide a time and place where tutoring, homework, reading, and/or
studying can be done for at least one hour daily.
(k) The responsible dormitory supervisor shall be accountable for
reporting any hazardous or defective items in the dormitory to the
appropriate supervisor and plant manager.
(l) Leisure-time activities shall be provided to dormitory students.
These activities may include recreational activities, clubs,
arts/crafts, and reading of newspapers and periodicals. Television
viewing shall not be considered as structured leisure time unless a
scheduled program provides educational benefit.
(m) Lines of communication shall be established with other local
social service agencies to assist in the resolution of problems that may
extend beyond the confines of the dormitory. These agencies may be
State, tribal, or Federal.
(n) Dormitory personnel will receive training in emergency first aid
procedures.
25 CFR 36.75 Space and privacy.
The configuration of sleeping space and other living areas will vary
according to the grade levels of the occupants; however, sleeping rooms
shall provide sufficient space and privacy for the resident students.
The following space and privacy requirements shall be required for
dormitories. A dormitory shall be considered at capacity when the
addition of one more student would put the school out of compliance with
the space standard; and additional students shall not be admitted for
residential purposes.
(a) Dormitory facilities for grades one through eight shall have
space footage averaging from 40 to 60 square feet per student for
sleeping rooms, exclusive of furniture (wardrobe, desks, beds, etc.).
(b) Dormitories housing students who are in grades nine through 12
shall provide sleeping rooms with a per student square footage averaging
from 50 to 70 square feet, exclusive of furniture (wardrobe, desks,
beds, etc.).
(c) When new dormitories are constructed or existing dormitories are
remodeled, sleeping rooms shall be constructed not to exceed a maximum
of four students per room for grades one through 12.
(d) Each peripheral dormitory shall have a set of encyclopedias, one
dictionary for every ten students (ADM), and ten other general reference
materials such as an atlas or periodical subscription.
25 CFR 36.76 Compliance for the National Criteria for Dormitory
Situations.
Implementation of the National Criteria for Dormitory Situations
shall begin immediately on the effective date of this part. A dormitory
is in compliance when it has met and satisfied all the requirements
under subpart H.
(a) The education supervisor(s) or peripheral dormitory supervisor
shall report to their supervisor(s) within 45 days after the start of
each school term with a compliance report to the local school board that
attests to whether a dormitory is in compliance or noncompliance;
within 15 days, the compliance report shall be submitted to the Agency
Superintendent for Education or Area Education Programs Administrator,
as appropriate.
(b) The school supervisor or the peripheral dormitory supervisor
shall notify in writing each parent or legal guardian of the dormitory
noncompliance status within 60 days after the beginning of the school
term.
(c) The compliance report shall contain the following:
(1) A written statement attesting to the fact that the dormitory has
or has not met all of the requirements.
(2) A specific listing of the requirements that have not been met.
(3) A detailed action plan designed to correct deficiencies.
(4) A statement signed by the local school board attesting to the
fact that it has been apprised of the school's compliance status and
concurs or does not concur with the action plan to reach compliance.
(d) The Agency Superintendent for Education or the Area Education
Programs Administrator, as appropriate, shall review each dormitory
compliance report and shall provide the Director with a detailed report
by November 15 each year which shall include:
(1) A list of dormitories indicating those not in compliance.
(2) A detailed statement as to why each school indicated is not in
compliance and how it is proposed to reach compliance.
(3) A plan of action outlining what actions the Agency or Area
education line officers, as appropriate, will take to assist the
dormitories to reach compliance.
(e) In the event a dormitory is not in compliance for two consecutive
years due to conditions which can be corrected locally, appropriate
personnel actions shall be initiated at all appropriate levels of
school/dormitory administration. Noncompliance may be grounds for
dismissal.
(f) The Secretary shall submit to the appropriate committees of
Congress at the time of the annual budget request a detailed plan to
bring all Bureau and contract boarding schools up to the criteria
established under sec. 1122 of Pub. L. 95-561, and 25 U.S.C. 2002.
Such plan shall include, but not be limited to, predictions for the
relative need for each boarding school in relation to the criteria
established under this section and specific cost estimates for meeting
such criteria at each school up to the level required by such criteria.
25 CFR 36.76 PART 38 -- EDUCATION PERSONNEL
Sec.
38.1 Scope.
38.2 Information collection.
38.3 Definitions.
38.4 Education positions.
38.5 Qualifications for educators.
38.6 Basic compensation for educators and education positions.
38.7 Appointment of educators.
38.8 Nonrenewal of contract.
38.9 Discharge of educators.
38.10 Conditions of employment of educators.
38.11 Length of the regular school term.
38.12 Leave system for education personnel.
38.13 Status quo employees in education positions.
38.14 Voluntary services.
Authority: Secs. 1131 and 1135 of the Act of November 1, 1978 (92
Stat. 2322 and 2327, 25 U.S.C. 2011 and 2015); Secs. 511 and 512 of
Pub. L. 98-511; and secs. 8 and 9 of Pub. L. 99-89 (Indian Education
Technical Amendments Act of 1985) and Title V of Pub. L. 100-297
(Indian Education Amendments of 1988).
Source: 53 FR 37678, Sept. 27, 1988, unless otherwise noted.
25 CFR 38.1 Scope.
(a) Primary scope. This part applies to all individuals appointed or
converted to contract education positions as defined in 38.3 in the
Bureau of Indian Affairs after November 1, 1979. This part applies to
elementary and secondary school positions and agency education
positions.
(b) Secondary scope. Section 38.13 applies to employees with
continuing tenure in both the competitive and excepted service who
encumber education positions.
(c) Other. Where 25 CFR part 38 and a negotiated labor relations
agreement conflict, the negotiated agreement will govern.
25 CFR 38.2 Information collection.
(a) The information collection requirements contained in 38.5 use
Standard Form 171 for collection, and have been approved by OMB under 25
U.S.C. 2011 and 2015 and assigned approval number 3206-0012. The
sponsoring agency for the Standard Form 171, is the Office of Personnel
Management. The information is being collected to determine eligibility
for employment. The information will be used to rate the qualifications
of applicants for employment. Response is mandatory for employment.
(b) The information collection requirement for 38.14, Voluntary
Services has been approved by the Office of Management and Budget under
44 U.S.C. 3501 et seq. and assigned clearance number 1076-0116. The
information is being collected to determine an applicants eligibility
and selection for appropriate volunteer assignments. Response is
voluntary.
25 CFR 38.3 Definitions.
As used in this part, the term:
Agency means the current organizational unit of the Bureau, which
provides direct services to the governing body or bodies and members of
one or more specified Indian Tribes.
Agency school board as defined in section 1139(1), of Pub. L.
95-561, means a body, the members of which are appointed by the school
boards of the schools located within such Agency. The number of such
members shall be determined by the Director in consultation with the
affected tribes. In Agencies serving a single school, the school board
of that school shall function as the Agency School Board.
Agency Superintendent for Education (ASE) means the Bureau official
in charge of education functions at an Agency Office and to whom the
school supervisor(s) and other educators under the Agency's
jurisdiction, report.
Area Education Programs Administrator (AEPA) means the Bureau
official in charge of an Area Education Office that provides services to
off-reservation residential schools, peripheral dormitories or
on-reservation BIA funded schools that are not served by an Agency
Superintendent for Education. The AEPA may also provide education
program services to tribes not having an Agency Superintendent for
Education at their agency. The AEPA has no line authority over agency
education programs that are under the jurisdiction of an Agency
Superintendent for Education.
Assistant Secretary means the Assistant Secretary for Indian Affairs
of the Department of the Interior.
Bureau means the Bureau of Indian Affairs of the Department of the
Interior.
Consult, as used in this part and provided in section 1131(d)(1) (B)
and (C) of Pub. L. 95-561, means providing pertinent information to and
being available for discussion with the school board, giving the school
board the opportunity to reply and giving due consideration to the
school board's response, subject to appeal rights provided in 38.7 (a),
(b) and (c), and 38.9(e)(3).
Director means the Deputy to the Assistant Secretary/Director --
Indian Affairs (Indian Education Programs) in the Bureau.
Discharge means the separation of an employee during the term of the
contract.
Education function means the administration and implementation of the
Bureau's education programs and activities (including school
operations).
Education position, means a position in the Bureau the duties and
responsibilities of which:
(a) Are performed on a school term basis principally in a Bureau
elementary and secondary school which involve:
(1) Classroom or other instruction or the supervision or direction of
classroom or other instruction;
(2) Any activity (other than teaching) that requires academic credits
in educational theory and practice equal to the academic credits in
educational theory and practice required for a bachelor's degree in
education from an accredited institution of higher education; or
(3) Any activity in or related to the field of education
notwithstanding that academic credits in educational theory and practice
are not a formal requirement for the conduct of such activity; or
(4) Support services at or associated with the site of the school;
or
(b) Are performed at the Agency level of the Bureau and involve the
implementation of education-related Bureau programs. The position of
Agency Superintendent for Education is excluded.
Educator, as defined in section 1131(n)(2) of Pub. L. 95-561 means
an individual whose services are required, or who is employed, in an
education position as defined in 38.3.
Employment contract means a signed agreement executed by and between
the Bureau and the individual employee hired or converted under this
part, that specifies the position title, period of employment, and
compensation attached thereto.
Involuntary change in position means the release of an employee from
his/her position instigated by a change in program or other occurrence
beyond the control of the employee.
Local school board, as used in this part and defined in section
1139(7) of Pub. L. 95-561, means a body chosen in accordance with the
laws of the tribe to be served or, in the absence of such laws, the body
elected by the parents of the Indian children attending a
Bureau-operated school. In schools serving a substantial number of
students from different tribes, the members shall be appointed by the
governing bodies of the tribes affected and the number of such members
shall be determined by the Director in consultation with the affected
tribes.
Probationary period means the extension of the appointed process
during which a person's character and ability to satisfactorily meet the
requirements of the position are reviewed.
School board means an Agency school board or a local school board.
School supervisor means the Bureau official in charge of a Bureau
school who reports to an Agency Superintendent for Education. In the
case of an off-reservation residential school(s), and, in some cases,
peripheral dormitories and on-reservation day schools, the school
supervisor shall report to the Area Education Programs Administrator.
School term is that term which begins usually in the last summer or
fall and ends in the Spring. It may be interrupted by one or more
vacations.
25 CFR 38.4 Education positions.
(a) The Director shall establish the kinds of positions required to
carry out the Bureau's education function. No position will be
established or continued for which:
(1) Funds are not available; or
(2) There is not a clearly demonstrable need and intent for it to
carry out an education function.
(b) Positions established for regular school operations will be
restricted to school term or program duration. Particular care shall be
taken to insure that year-long positions are not established unless they
are clearly required and involve essential 12-month assignments.
25 CFR 38.5 Qualifications for educators.
(a) Qualifications related to positions. Job qualification
requirements shall be at least equivalent to those established by the
appropriate licensing and certification authorities of the State in
which the position is located.
(b) Qualifications related to individuals. An applicant for an
education position must establish that he/she meets the requirements of
the position by submitting an application and a college transcript, as
appropriate, to the local school supervisor, Agency Superintendent for
Education (ASE), Area Education Programs Administrator (AEPA), or
Director and appearing for an interview if requested by the official
involved. The applicant's education and experience will be subject to
verification by the ASE or the AEPA. Employees who falsify experience
and employment history may be subject to disciplinary action or
discharge from the position to which he/she is appointed.
(1) School boards may waive formal education and State certification
requirements for tribal members who are hired to teach tribal culture
and language.
(2) Tribal members appointed under this waiver may not have their
basic pay rate set higher than the rate paid to qualified educators in
teaching positions at that school.
(c) Identification of qualified individuals. The Director shall
require each ASE, AEPA, and other appropriate local official in the
education program organization to maintain lists of qualified and
interviewed applicants for each of the kinds of established positions.
Applications on file shall be purged annually. Applicants whose
qualifications are established and who indicate an interest in working
in specified locations will be included on those local applicant lists.
The Director shall maintain a national list of qualified applicants for
each of the kinds of positions established. Applicants whose
qualifications are established and who either do not indicate an
interest in a specific location or indicate an interest in working in
any location will be entered on the national list. The national list is
a secondary source of applicants.
(d) Special recruitment and training for Indian educators. The
Director shall review annually the Bureau's ''Recruitment of Indian
Educators Program'' and update as necessary. The Director will define
individual training plans for trainees and subsequent promotional
opportunities for advancement based upon satisfactory job performance in
this program.
25 CFR 38.6 Basic compensation for educators and education positions.
(a) Schedule of basic compensation rates. The Director shall
establish a schedule for each pay level specified in part 62 of the
Bureau of Indian Affairs Manual (BIAM). The schedule will be revised at
the same time as and be consistent with rates in effect under the
General Schedule or Federal Wage System for individuals with comparable
qualifications, and holding comparable positions.
(b) Range of pay rates for positions within pay levels. The range of
basic compensation rates for positions assigned to each pay level will
be consistent with the General Schedule or Federal Wage System rates
that would otherwise be applicable if the position were classified under
chapter 51 or subchapter IV of chapter 53 of title 5 of the United
States Code (U.S.C.). The maximum pay shall not exceed step 10 of the
comparable General Schedule position by more than ten percent.
(c) Schedule of compensation rates for teachers and counselors. The
basic compensation for teachers and counselors, including dormitory
counselors and homeliving counselors, shall be determined in accordance
with rates set by the Defense Department Overseas Teachers Pay and
Personnel Practices Act. The schedule used shall be the current
published schedule for the school year beginning on or after July 1 of
each year.
(d) Adjusting employee basic compensation rates. (1) Except for
employees occupying positions of teachers and counselors, including
dormitory counselors and homeliving counselors, adjustments in an
employee's basic compensation made in connection with each contract
renewal will be based on the following:
(i) Contract renewal incentive -- one pay increment for each renewal,
not to exceed four increments, unless the educator is covered by a
negotiated labor union agreement.
(ii) Performance -- employees whose performance is rated ''above
satisfactory''; one pay increment; employees whose performance is
rated ''outstanding''; two pay increments.
(2) Pay increments based on education may be awarded as outlined in
62 BIAM.
(e) Special additions to basic compensation. The Director is
authorized to established the following special additions to rates of
basic compensation:
(1) The Director may authorize payment of a staffing differential not
exceeding 25 per centum of the rate of basic compensation based on a
formally-documented request by an ASE or AEPA. Such a staffing
differential shall only be authorized in writing when the Director
determines that:
(i) It is warranted by the geographic isolation of the work site or
other unusually difficult environmental working or living conditions
and/or,
(ii) It is necessary as a recruitment or retention incentive. This
staffing differential is to be computed on the basic schedule rate
before any other additions are computed.
(2) Special rates may be established for recruitment and retention
applicable only to a specific position or to specific types of positions
in specific locations based on a formally documented request by an ASE
or AEPA and submitted to the Director for approval.
(f) Payment of compensation to educators. This section applies to
those individuals employed under the provisions of section 1131(m) of
Pub. L. 95-561 or title 5 U.S.C.
(1) Pay periods. Educators shall be paid on the basis of a biweekly
pay period during the term of the contract. Chapter 55 of title 5
U.S.C. applies to the administration of pay for educators, except that
section 1131(m) of Pub. L. 95-561 provides that 5 U.S.C. 5533 does not
apply with respect to the receipt of pay by educators during summer
recess under certain circumstances.
(2) Pay for contract educators. When an educator is appointed,
payment under the contract is to begin as of the effective date of the
contract. If an educator resigns or is discharged before the expiration
of the term of the contract, pay ceases as of the date of resignation or
discharge.
(3) Prorating of pay. Within 30 days prior to the beginning of the
academic school term, each educator must elect whether to have the
annual contractual rate or basic pay prorated over the contractual
academic school term, or to have the basic pay prorated over a 12-month
period.
(i) Each educator may change such election once during the academic
school term, provided notice is given two weeks prior to the end of the
fifth month after the beginning of the academic school term.
(ii) An educator who elects a 12-month basis of prorated pay may
further elect to be paid in one lump sum at the end of the academic
school term for the then remaining amount of rate of basic pay otherwise
due, provided notice is given four weeks prior to the end of the
academic school term.
(iii) No educator shall suffer a loss of pay or benefits because of
elections made under this section.
(4) Stipends for extracurricular activities. An employee, if
assigned to sponsor an approved extracurricular activity, may elect
annually at the beginning of the contract to be paid a stipend in lieu
of overtime premium pay or compensatory time when the employee performs
additional activities to provide services to students or otherwise
support the school's academic and social programs.
(i) The Director is authorized to establish a schedule of stipends
for each Bureau Area, taking into consideration types of activities to
be compensated and payments provided by public school districts in or
near the Area.
(ii) The stipend shall be a supplement to the employee's base pay and
is not a part of salary for retirement computation purposes.
(iii) The employee shall be paid the stipend in equal payments over
the period of the extracurricular activity.
(53 FR 37678, Sept. 27, 1988, as amended at 54 FR 46374, Nov. 3,
1989)
25 CFR 38.7 Appointment of educators.
(a) Local school employees. Local Bureau school employees shall be
appointed only by the school supervisor. Before the local school
employee is employed, the school board shall be consulted. An
individual's appointment may be finalized only upon receipt of a formal
written determination certified by the local school board under such
uniform procedures as it may adopt. Written determination by the school
board should be received within a reasonable period, but not to exceed
30 days. Failure of the school board to act within this period shall
have the effect of approving the proposed appointment. The local school
board shall use the same written procedure to disapprove an appointment.
The school supervisor may appeal to the ASE, or, where appropriate, to
the AEPA, any determination by the local school board concerning an
individual's appointment. A written statement of appeal describing the
action and the reasons the supervisor believes such action should be
overturned must be filed within 10 days of receipt of the action from
the local school board. A copy of such statement shall be submitted to
the school board and the board shall be afforded an opportunity to
respond, not to exceed 10 calendar days, in writing, to the appeal.
After reviewing such written appeal and response, the ASE or AEPA may,
for cause, overturn the action of the local school board. The ASE or
AEPA must transmit the determination of the appeal (in the form of a
written opinion) to the board and to the supervisor identifying the
reasons for overturning the action within 10 calender days. Failure to
act within the 10 calendar day period shall have the effect of approving
the local school board's determination.
(b) School supervisors. School supervisors may be appointed only by
the ASE, except the AEPA shall appoint school supervisors for
off-reservation boarding schools and those few other schools supervised
by the AEPA. The school board shall be consulted before the school
supervisor is employed. The appointment may be finalized upon receipt
of a formal written determination certified by the school board under
any uniform procedures as it may adopt. Written determination by the
school board shall be received within a reasonable period, but not to
exceed 30 days. Failure of the school board to act within this period
shall have the effect of approving the proposed appointment. The school
board shall use the same procedure to disapprove an appontment. Within
20 calendar days of receipt of any determination by the school board
concerning an individual's appointment, the ASE or AEPA, as appropriate,
may appeal to the Director by filing a written statement describing the
determination and the reasons the supervisor believes the determination
should be overturned. A copy of the statement shall be submitted to the
local school board and the board shall be afforded an opportunity to
respond, within 10 calendar days, in writing, to such an appeal. The
Director may reverse the determination for cause set out in writing to
the school board. Within 20 calendar days of the school board's
response, the Director shall transmit the determination of the appeal
(in the form of a written opinion) to the board and to the ASE or AEPA
identifying the reasons for overturning the determination. Failure by
the Director to act within the 20 calendar day period shall have the
effect of approving the school board's determination.
(c) Agency office education program employees. Appointments to
Agency office education positions may be made only by the ASE. The
Agency school board shall be consulted before the agency education
employee is employed, and the appointment may be finalized upon receipt
of a formal, written determination certified by the Agency school board
under any uniform procedures as it may adopt. Written determination by
the school board shall be received within a reasonable period, but not
to exceed 30 days. Failure of the school board to act within this
period shall have the effect of approving the proposed appointment. The
Agency school board shall use the same written procedure to disapprove
an appointment. Within 20 calendar days of receipt of any determination
by the school board concerning an individual's appointment, the ASE may
appeal to the Director by filing a written statement describing the
determination and the reasons the supervisor believes the determination
should be overturned. A copy of the statement shall be submitted to the
Agency school board and the board shall be afforded an opportunity to
respond, within 10 calendar days, in writing, to such appeal. After
reviewing the written appeal and response, the Director may, for cause,
overturn the determination of the Agency school board. Within 20 days
of the board's response, the Director shall transmit the determination
of the appeal (in the form of a written opinion) to the board and to the
ASE identifying the reasons for overturning the determination. Failure
of the Director to act within the 20 calendar day period shall have the
effect of approving the school's board's determination.
(d) Employment contracts. The Bureau shall issue employment
contracts each year for individuals employed in contract education
positions at the Agency or school levels.
(e) Absence of local school boards. Where a local school board has
not been established in accordance with section 1139(7) Pub. L. 95-561
with respect to a Bureau school, or where a school board is not
operational, and the local school board is required to be given a notice
or required to be consulted by statute or these regulations, the
official involved shall notify or consult with the Agency school board
serving the tribe(s) to which the parents of the Indian children
atending that school belong, or, in that absence, the tribal
organization(s) of the tribe(s) involved.
(f) Provisional contracts. Provisional certification or other
limited certificates from the State are not considered full
certification and only a provisional contract may be issued. There may
be circumstances when no individual who has met the full certification
or experience requirements is available for a professional position or
when a status quo employee who does not meet full certification or
experience requirements desires to convert to contract. When this
situation exists, a provisional contract may be issued in accordance
with the following:
(1) The contract will be made only:
(i) After it is determined that an individual already meeting
certification or experience requirements is not available; or
(ii) For conversion of a status quo employee who does not yet meet
all established position requirements.
(2) Consultation with the appropriate school board is required prior
to the contract.
(3) The contract may be of 12-month or school-term duration.
(4) The employee will be required to make satisfactory progress
toward meeting full qualification requirements.
(5) If the employee fails to meet the requirements established under
38.7(f)(4), the contract will be terminated. Such termination cannot be
grieved or appealed.
(g) Conditional appointment. As provided in section 1131(d)(4), Pub.
L. 95-561, if an individual who has applied at both the national and
local levels is appointed from a local list of applicants, the
appointment shall be conditional for 90 days. During that period, the
individual's application and background shall be examined to determine
if there is a more qualified individual for the position. Removal
during this period is not subject to discharge, hearing or grievance
procedures.
(h) Short-term contracts. (1) There may be circumstances where
immediate action is necessary and it is impossible to consult with the
local school board. When this situation exists short-term contracts may
be made by the school supervisor in accordance with the following:
(i) The length of the contract will not exceed 60 days, or the next
regularly scheduled school board meeting, whichever comes first.
(ii) If the board meets and does not take action on the individual in
question, the short-term contract may be extended for the duration of
the school year.
(iii) It shall be the responsibility of the school supervisor to
fully inform the local school board of all such short-term contracts.
Failure to do so may be cited as reason to discharge the school
supervisor if so requested by the board.
(2) The local school board may authorize the school supervisor to
make an emergency short-term contract to classroom, dormitory and other
positions directly related to the health and safety of students. When
this situation exists, short-term contracts may be made in accordance
with the following:
(i) If local and agency lists of qualified applicants are exhausted,
short-term contracts may be made without regard to qualifications for
the position;
(ii) The pay level will be based on the qualifications of the
individual employed rather than the requirements of the position, if the
qualifications of the individual are lower than required;
(iii) The short-term contract may not exceed the school term and may
not be renewed or extended;
(iv) Every 60 days the school supervisor will determine if qualified
individuals have been placed on the local or agency lists. If a
qualified individual on the list accepts employment, the school
supervisor must terminate the emergency appointment at the time the
qualified individual is appointed.
(i) Temporary contracts. There may be circumstances where a specific
position is needed for a period of one year or less. Under these
conditions a position may be advertised as a temporary position and be
filled under a temporary contract. Such contract requires the same
school board approval as a school year contract. If required for the
completion of the activities specified in the original announcement, the
position, may with school board approval be extended for up to one
additional year. Temporary contracts may be terminated at any time and
this action is not subject to approval or grievance procedures.
(j) Waiver of Indian preference. Notwithstanding any provision of
the Indian preference laws, such laws shall not apply in the case of any
personnel action within the purview of this section respecting an
application or employee not entitled to Indian preference if each tribal
organization concerned grants, in writing, a waiver of the application
of such laws with respect to such personnel action, where such a waiver
is in writing deemed to be a necessity by the tribal organization,
except that this shall in no way relieve the Bureau of its
responsibility to issue timely and adequate announcements and
advertisements concerning any such personnel action if it is intended to
fill a vacancy (no matter how such vacancy is created). When a waiver
is granted, it shall apply only to that particular position and as long
as the employee remains in that position.
(k) Prohibited reappointment. An educator who voluntarily terminates
employment before the end of the school term may not be appointed to
another Bureau education position before the beginning of the following
school term. An educator will not be deemed to have voluntarily
terminated employment if transferred elsewhere with the consent of the
local school or Agency boards.
(l) Contract renewals. The appropriate school board shall be
notified in writing by the school supervisor and/or ASE or AEPA not less
than 90 days before the end of the school term whether or not an
individual's contract is recommended for renewal.
(1) If the school board disagrees with the school supervisor's or
ASE's or AEPA's recommendations, the board will submit a formal, written
certification of its determinations to the school supervisor or ASE or
AEPA within 25 days. If the board's determinations are not received
within the 25 days, the school supervisor or ASE or AEPA shall issue the
60 day notification of renewal or nonrenawal to the individual as
required under 38.8.
(2) When the school board submits its determination within the 25
days and determines that a contract will be renewed, or nonrenewed, the
appropriate official shall issue the required renewal notice, or
nonrenawal, or appeal the determination of the school board to the
appropriate official who will make a determination in accordance with
the appeal procedure is 38.7(a) of this part. After the probationary
period, if the determination is that the contract will not be renewed,
the procedures specified in 38.8 shall apply.
25 CFR 38.8 Nonrenewal of contract.
Where the determination is made that an employee's contract shall not
be renewed for the following year, the following procedure will apply to
those employees who have completed three full continuous school terms of
service under consecutive contract appointments and satisfactory
performance in the same or comparable education positions.
(a) The employee will be given a written notice of the action and the
reasons thereof not less than 60 days before the end of the school term.
(b) The employee will be given 10 calendar days to request an
informal hearing before the appropriate official or body. Upon request,
the employee may be given official time, not to exceed eight hours, to
prepare a written response to the reason(s).
(c) If so requested, an informal hearing shall be held within 30
calendar days of receipt of the request.
(d) The appropriate official or body will render a written
determination within seven calendar days after the informal hearing.
(e) The employee has a right to request an administrative review by
the ASE or AEPA of the determination within 10 calendar days of that
determination. The ASE or AEPA then has 20 calendar days to render a
final decision. Where the employee is the supervisor of the school or
an agency education employee, any appeal of the ASE or AEPA would be
addressed to the Director for a decision. If the Director or ASE's or
AEPA's decision overturns the appropriate official or bodies
determination, the appropriate official or body will be notified of the
reasons in writing. Failure by the Director or ASE or AEPA to act
within the 20 days will sustain the determination. This completes the
administrative appeal process.
(f) Failure of any of the parties to meet the requirements of the
above procedures will serve to negate the particular action sought by
the negligent party.
(g) Those employees with less than three full continuous school terms
of consecutive contract appointments are serving a probationary period.
Nonrenewal of his/her contract will be considered a continuation of the
examining process. This action cannot be appealed or grieved.
(h) Independent of the procedures outlined in this section, the
school supervisor or ASE or AEPA, for applicable positions, shall be
required to submit to the ASE or AEPA or appropriate higher authority
all nonrenewal actions. Within 60 days, the ASE or AEPA shall review
the nonrenewal actions and may overturn the determination of nonrenewal.
In the event that the ASE or AEPA makes a decision to overturn the
school board determination, the ASE or AEPA shall notify the school
board in writing of his/her reasons for doing so.
(i) No more than the substantial standard of evidence shall be
required to sustain the nonrenewal.
(j) A procedural error shall not be grounds for overturning a
determination of nonrenewal unless the employee shows harmful error in
the application of the Agency's procedures in arriving at such a
decision. For purposes of this section, ''harmful error'' means error
by the Agency in the application of its procedures which, in the absence
or cure of the error, might have caused the Agency to reach a conclusion
different than the one reached. The burden is upon the appellant to
show that based upon the record as a whole, the error was harmful.
i.e., caused substantial harm or prejudice to his/her rights.
(k) Nonrenewal of a contract is not discharge and will not follow the
discharge procedures.
25 CFR 38.9 Discharge of educators.
(a) Discharge for cause. Educators covered under the provision of
this section are excluded from coverage under 5 U.S.C. 7511 and 4303.
In order to provide due process for educators, the Director shall
publish in 62 BIAM representative conditions that could result in the
discharge of educators for cause and procedures to be followed in
discharge cases.
(b) Discharge for inadequate performance. Action to remove educators
for inadequate performance will be taken for failure to meet performance
standards established under 5 U.S.C. 4302. Performance standards for all
educators will include, among others, lack of student achievement.
Willful failure to exercise properly assigned supervisory
responsibilities by supervisors shall also be cause for discharge.
(c) Other discharge. The Director shall publish in 62 BIAM a
description of the budgetary and programmatic conditions that may result
in the discharge of educators for other than cause during the school
term. The individual's personnel record will clearly reflect that the
action taken is based upon budgetary or programmatic restraints and is
not a reflection on the employee's performance.
(d) Procedures for discharge for cause. The Director shall publish
in 62 BIAM the procedural steps to be followed by school supervisors,
ASE's, and AEPA's in discharge for cause cases. These procedures shall
provide (among other things) for the following:
(1) The educator to be discharged shall receive a written notice of
the proposal, specifying the causes or complaints upon which the
proposal is based, not less than 30 calendar days before the discharge.
However, this shall not prohibit the exclusion of the individual from
the education facility in cases where exclusion is required for the
safety of the students or the orderly operation of the facility.
(2) A reasonable time, but not less than 10 calendar days, will be
allotted for the individual to make written and/or oral responses to the
charge.
(3) An opportunity will be afforded the individual to review the
material relied upon to support the charge.
(4) Official time, not to exceed eight hours, will be provided to the
individual to prepare a response to the charge.
(5) The educator may elect to have a representative and shall furnish
the identity of any representative to the ASE or AEPA. The ASE or AEPA
may disallow, as an employee representative, any individual whose
activities as a representative would cause a conflict of interest or
position, or an employee whose release from his or her official position
would give rise to unreasonable costs to the Government, or when
priority work assignment precludes his or her release from official
duties. The terms of any applicable collective bargaining agreement and
5 U.S.C. 7114(a)(5) shall govern representation of employees in an
exclusive bargaining unit.
(6) The individual has a right to a final decision made by the
appropriate level of supervision.
(7) The individual has a right to appeal the final decision and have
the merits of the case reviewed by a Departmental official not
previously involved in the case. This right includes entitlement to a
hearing upon request under procedures in accordance with the
requirements of due process under section 1131(e)(1)(B) of Pub. L.
95-561.
(e) School board action. (1) The appropriate school board shall be
notified as soon as possible, but in no case later than 10 calendar days
from the date of issue of the notice of intent to discharge.
(2) The appropriate school board, under any uniform procedure as it
may adopt, may issue a formal written certification to the school
supervisor, ASE, or AEPA either approving or disapproving the discharge
before the expiration of the notice period and before actual discharge.
Failure to respond before the expiration of the notice period will have
the effect of approving the discharge.
(3) The school supervisor initiating a discharge action may appeal
the board's determination to the ASE or AEPA within 10 calendar days of
receipt of the board's notice. The ASE or AEPA initiating a discharge
may appeal the board's determination to the Director within 10 calendar
days of receipt of the board's notice. Within 20 calendar days
following the receipt of an appeal, the reviewing official may, for good
cause, reverse the school board's determination by a notice in writing
to the board. Failure to act within 20 calendar days shall have the
effect of approving the board's determination.
(f) School board recommendations for discharge. School boards may
recommend in writing to school supervisors, ASE's, or AEPA's, and the
Director that individuals in the education program be discharged. These
written recommendations may follow any procedures formally established
internally by the school board or tribal government. However, the
written recommendations must contain specific causes or complaints that
may be verified or established by investigation of factual situations.
The official receiving a board recommendation for discharge of an
individual shall acknowledge the recommendation in writing within 10
calendar days of receipt and proceed with a fact finding investigation.
The official who finally disposes of the recommendation shall notify the
school board of the disposition in writing within 60 calendar days of
initiation of the fact finding investigation.
25 CFR 38.10 Conditions of employment of educators.
(a) Supervision not delegated to school boards. School boards may
not direct, control, or interrupt the day-to-day activities of BIA
employees carrying out Bureau-operated education programs.
(b) Employee handbook. Employee handbook and recruiting guides shall
be developed by each local school or agency to provide specific
information regarding:
(1) The working and hiring conditions for various tribal
jurisdictions and Bureau locations;
(2) The need for all education personnel to adapt to local
situations; and
(3) The requirement of all education personnel to comply with and
support duly adopted school board policies, including those relating to
tribal culture or language.
(c) Contract renewal notification. Employees will be notified 60
calendar days before the end of the school term of the intent to renew
or not renew their contract. If an individual's contract is to be
renewed, the individual must agree in writing to serve for the next
school term. This agreement must be received within 14 calendar days of
the date of the notice in order to complete the contract renewal. If
this agreement is not received by the fourteenth day, the employee has
voluntarily forfeited his or her right to continuing employment. If an
individual agrees to serve for the next school term and fails to report
for duty at the beginning of the next school term, the contract will be
terminated and the individual's future appointment will be subject to
the restriction in 38.7(k) of this part.
(d) Dual compensation. An employee accepting a renewal of a school
term contract may be appointed to another Federal position during the
school recess period without regard to the dual compensation regulations
in 5 U.S.C. 5533.
(e) Discrimination complaints. Equal Employment Opportunity (EEO)
procedures established under 29 CFR part 1613 are applicable to contract
employees under this part. It is the policy of the BIA that all
employees and applicants for employment shall be treated equally when
considered for employment or benefits of employment, regardless of race,
color, sex, religion, national origin, age, or mental or physical health
(handicap), within the parameters of Indian preference.
(f) Grievance procedures. The Director shall publish in 62 BIAM
procedures for the rapid and equitable resolution of grievances. In
locations and for positions covered by an exclusive bargaining
agreement, the negotiated grievance procedure is the exclusive avenue of
redress for all matters within the scope of the negotiated grievance
procedure.
(g) Performance evaluation. The minimum number of times a supervisor
shall meet with an employee to discuss performance and suggest
improvements shall be once every three months for the educator's first
year at a school or Agency, and twice annually thereafter during the
school term.
25 CFR 38.11 Length of the regular school term.
The length of the regular school term shall be at least 180 student
instructional days, unless a waiver has been granted under the
provisions of 25 CFR 36.61.
25 CFR 38.12 Leave system for education personnel.
(a) Full-time school-term employees. Employees on a full-time
school-term contract are authorized the following types of leave:
(1) Personal leave. A school-term employee will receive 28 hours of
personal leave to be used for personal reasons and 12 hours of emergeny
leave. This leave only accrues provided the length of the contract
exceeds 24 weeks.
(i) The school-term employee will request the use of this leave in
advance when it is for personal use or personal business (e.g., going to
the bank, etc.). When this leave is requested for emergency purposes
(e.g., death in immediate family), it will be requested immediately
after the emergency is known, if possible, by the employee and before
leave is taken or as soon as the supervisor reports to work on the
official work day.
(ii) Final approval rests with the supervisor. This leave shall be
taken only during the school term. No compensation for or carryover of
unused leave is authorized.
(2) Sick leave. Sick leave is an absence approved by the supervisor
for incapacity from duty due to injury or illness, not related to or
incurred on-the-job and not covered by the Federal Employee's
Compensation Act Regulations. Medical and dental appointments may be
included under this part. However, whenever possible, medical and
dental appointments should be scheduled after instructional time.
(i) Sick leave shall accrue at the rate of four hours each biweekly
pay period in pay status during the term of the contract; and no
precredit or advance of sick leave is authorized.
(ii) Accumulated sick leave at the time of separation will be
recredited to an educator who is reemployed within three years of
separation.
(3) School vacation. School term employees may receive up to 136
hours of school vacation time for use when school is not in session.
School vacations are scheduled on the annual school calendar during the
instructional year and may not be scheduled before the first day of
student instruction or after the last day of student instruction.
School vacations are not a right of the employee and cannot be paid for
or carried over if the employee is required to work during the school
vacation time or if the program will not permit school term employees to
take such vacation time.
(b) Leave for full-time, year-long employees. Employees who are on a
full-time, year-long contract are authorized the following types of
leave:
(1) Vacation leave. Absence approved in advance by the supervisor
for rest and relaxation or other personal reasons is authorized on a per
year basis of Federal Government service as follows: years 1 and 2 of
employment -- 120 hours; years 3-5 of employment -- 160 hours; 6 or
more years -- 200 hours. The supervisor will determine when vacation
leave may be used. Vacation leave is to be scheduled and used to the
greatest extent possible during periods when school is not in session
and the students are not in the dormitories. Vacation leave is credited
to an employee on the day following his or her date of employment,
provided the length of the contract exceeds 24 weeks. An employee may
carry into succeeding years up to 200 hours of vacation leave. Leave
unused at the time of separation is forfeited.
(2) Sick leave. Sick leave accumulation and use is authorized on the
same basis as for school term employees under 38.12(a)(2) of this part.
(c) Leave for part-time year-long employees. Employees who are on
part-time year-long contracts exceeding 20 hours per week are authorized
the following types of leave:
(1) Vacation leave. Absence approved in advance by the supervisor
for rest and relaxation or other personal reasons is authorized on a per
year basis of Federal Government service as follows: years 1 and 2 of
employment -- 64 hours; years 3-5 of employment -- 80 hours; 6 or more
years -- 104 hours. The supervisor shall determine when vacation leave
may be used. Vacation leave is to be scheduled and used to the greatest
extent possible during periods when school is not in session and the
students are not in the dormitories. Vacation leave is credited to an
employee on the day following his or her date of employment provided the
length of the contract exceeds 24 weeks and may not be accumulated in
excess of 104 hours from year to year. An employee may carry over up to
104 hours from one contract year to the next. Leave unused at the time
of separation is forfeited.
(2) Sick leave. Sick leave is accumulated on the basis of three
hours each biweekly pay period in pay status; no precredit or advance
of sick leave is authorized. Accumulated sick leave at the time of
separation will be recredited to an educator who is reemployed within
three years of separation.
(d) Leave for school term employees on a part-time work schedule in
excess of 20 hours per week. (1) Employees on a part-time work schedule
in excess of 20 hours per week may receive a maximum of 102 hours of
school vacation time; 20 hours of personal/emergency leave; and 63
hours of sick leave accrued at three hours per pay period for the first
21 pay periods of their contracts. Personal/emergency leave only
accrues provided the length of the contract exceeds 24 weeks.
(2) The part-time employee will request the use of this leave in
writing in advance when it is for personal use or personal business
(e.g., going to the bank, etc.). When this leave is requested for
emergency purposes (e.g., death in immediate family), it will be
requested immediately after the emergency is known, if possible, by the
employee and before leave is taken or as soon as the supervisor reports
to work on the official work day.
(3) Final approval rests with the supervisor. This leave shall be
taken only during the school year. No compensation for or carryover of
unused leave is authorized.
(4) Sick leave. Sick leave is an absence approved by the supervisor
for incapacity from duty due to injury or illness, not related to or
incurred on-the-job and not covered by the Federal Employee's
Compensation Act Regulations. Medical and dental appointments may be
included under this part. However, whenever possible, medical and
dental appointments should be scheduled after instructional time.
(i) Sick leave shall accrue at the rate of three hours each biweekly
pay period in pay status for the first 21 pay periods of their contract;
no precredit or advance for sick leave is authorized.
(ii) Accumulated sick leave at the time of separation will be
recredited to an educator who is reemployed within three years of
separation.
(5) School vacation time. Part-time employees may receive up to 102
hours of school vacation time for use when school is not in session.
Approval for the use of this time will be administratively determined by
the school supervisor, ASE or AEPA, and this time may not be scheduled
before the start of school or after the end of school.
(i) All school vacation time for part-time employees will be approved
at the convenience of the program and not as a right of the employee.
(ii) Vacation time cannot be paid for or carried over for a part-time
employee if the employee is required to work during the school vacation
time or if the program will not permit part-time employees to take such
vacation time.
(e) Accountable absences for all contract employees. The following
are considered accountable absences:
(1) Approved absence. If prescheduled and approved by the school
supervisor, ASE or AEPA, as appropriate, an employee may be on leave
without pay.
(2) Absence without leave. Any absence is not prescheduled or
approved in advance or excused by the supervisor is considered absence
without leave.
(3) Court and military leave. Employees are entitled to paid absence
for jury or witness service and military duty as a member of the
National Guard or Reserve under the same terms or conditions as outlined
in sections 6322 and 6323 of title 5 U.S.C., and corresponding
provisions of the Federal Personnel Manual, when the absence occurs
during the regular contract period. Employees may be requested to
schedule their military leave at times other than when school is in
session.
(4) Administrative leave. Administrative leave is an excused absence
from duty administratively authorized without loss of pay or without
charge to leave. This leave is not a substitute for other paid or
unpaid leave categories. Administrative leave usually is authorized on
an individual basis except when a school is closed or a group of
employees are excused from work for a particular purpose. The school
supervisor, ASE or AEPA will grant administrative leave. A school
closing must be approved by the ASE or AEPA.
(f) Educators serving with contracts with work weeks of 20 hours a
week or less are not eligible for any type of paid leave.
(g) For school term educators, no paid leave is earned nor may
accumulated leave be used during any period of employment with the
Bureau between school terms.
(h) Employees issued contracts for intermittent work are not eligible
for any type of paid leave.
(i) Leave transferred in. Annual leave credited to an employee's
accrued leave balance immediately before conversion to a contract
education position or appointment under this part will be carried over
and made available to the employee. Sick leave credited to an
employee's accrued sick leave balance immediately before conversion to a
contract education position or appointment under this part shall be
credited to the employee's sick leave account under the system in
38.12(a)(2) and (b)(2).
25 CFR 38.13 Status quo employees in education positions.
(a) Status quo employees. Individuals who were Bureau employees on
October 31, 1979, with an appointment in either the competitive or
excepted service without time limitation, and who are serving in an
education position, shall be continued in their positions under the
terms and conditions of that appointment with no change in their status
or positions. Such employees are entitled to receive any changes in
compensation attached to the position. Although such employees occupy
''education positions'' as defined in this part, the terms and
conditions of their appointment, status, and entitlements are determined
by competitive service regulations and procedures. Under applicable
procedures, these employees are eligible for consideration for movement
to other positions that are defined as ''contract education'' positions.
Such movement shall change the terms and conditions of their
appointment to the terms and conditions of employment established under
this part.
(b) If the tribe or school board waives the Indian preference law,
the employee loses the early-out retirement eligibility under Pub. L.
96-135, ''early-out for non-Indians,'' if they are entitled to the
early-out retirement. A memorandum for the record on BIA letterhead
shall be signed by the employee and placed on the permanent side of
his/her Official Personnel Folder, along with the tribal resolution, if
the tribe/school board has waived the Indian preference law to employ
the non-Indian.''
(c) Conversion of status quo employees to contract positions. Status
quo employees may request in writing to the school supervisor, ASE or
AEPA, as applicable, that their position be converted to contract. The
appropriate school board will be consulted and a determination made by
such school board whether such individual should be converted to a
contract employee.
(1) Written determination by the school board should be received
within a reasonable period, but not to exceed 30 days from receipt of
the request. Failure of the school board to act within this period
shall have the effect of disapproving the proposed conversion.
(2) With school board approval, an involuntary change in position
shall not affect the current status of status quo education employees.
25 CFR 38.14 Voluntary services.
(a) Scope. An ASE or AEPA may, subject to the approval of the local
school board concerned, accept voluntary services on behalf of Bureau
schools from the private sector, including individuals, groups, or
students. Voluntary service shall be for all non-hazardous activities
where public services, special projects, or school operations are
improved and enhanced. Volunteer service is limited to personal
services received without compensation (salary or wages) by the Bureau
from individuals, groups, and students. Nothing in this section shall
be construed to require Federal employees to work without compensation
or to allow the use of volunteer services to displace or replace Federal
employees.
(b) Volunteer service agreement. An agreement is a written document,
jointly completed by the volunteer, the Bureau school supervisor, and
the school board, that outlines the responsibilities of each. In the
case of students receiving credit for their work (i.e., student
teaching) from an education institution, the agreement will be jointly
completed by the student, a representative of the institution, and the
Bureau school supervisor. In the case of volunteer groups, the
agreement shall be signed by an official of the volunteering
organization, the Bureau school supervisor, and the school board and a
list of signatures and emergency telephone numbers of all participants
shall be attached.
(c) Eligibility. Although no minimum age requirement exists for
volunteers, schools shall comply with appropriate Federal and State laws
and standards on using the services of minors. All volunteers under the
age of 18 must obtain written permission from their parents or guardians
to perform volunteer activities.
(d) Status. Volunteers participating under this part are not
considered Federal employees for any purpose other than:
(1) Title 5 U.S.C. chapter 81, dealing with compensation for injuries
sustained during the performance of work assignments.
(2) Federal tort claims provisions published in 28 U.S.C. chapter
171.
(3) Department of the Interior Regulations Governing Responsibilities
and Conduct.
(e) Travel and other expenses. The decision to reimburse travel and
other incidental expenses, as well as the amount of reimbursement, shall
be made by the school supervisor, ASE, AEPA, and the respective school
board. Payment is made in the same manner as for regular employees.
Payment of travel and per diem expenses to a volunteer on a particular
assignment must be supported by a specific travel authorization and
cannot exceed the cost of employing a temporary employee of comparable
qualification at the school for which a travel authorization is
considered.
(f) Annual report. School supervisors shall submit reports on
volunteers to the ASE or AEPA by October 31 of each year for the
preceding year.
25 CFR 38.14 Pt. 39
25 CFR 38.14 PART 39 -- THE INDIAN SCHOOL EQUALIZATION PROGRAM
25 CFR 38.14 Subpart A -- General
Sec.
39.1 Purpose and scope.
39.2 Definitions.
39.3 General provisions.
25 CFR 38.14 Subpart B -- The Indian School Equalization Formula
39.10 Establishment of the formula.
39.11 Definitions.
39.12 Entitlement for instructional purposes.
39.13 Entitlement for residential purposes.
39.14 Entitlement for small schools.
39.15 Alaskan school cost supplements.
39.16 Computation of school entitlements.
39.17 Comparability with public schools.
39.18 Recomputations of current year entitlements.
39.19 Phase-in provisions.
39.20 Development of uniform, objective and auditable student
weighted area placement criteria and guidelines.
39.21 Future considerations for weighted programs.
39.22 Authorization of new program development and termination of
programs.
39.23 Review of contract schools supplemental funds.
25 CFR 38.14 Subpart C -- Formula Funding Administrative Procedures
39.30 Definitions.
39.31 Conditions of eligibility for funding.
39.32 Annual computation of average daily membership.
39.33 Special education unduplicated count provision.
39.34 Substitution of a count week.
39.35 Computation of average daily membership (ADM) for tentative
allotments.
39.36 Declining enrollment provision.
39.37 Auditing of student counts.
39.38 Failure to provide timely and accurate student counts.
39.39 Delays in submission of ADM counts.
25 CFR 38.14 Subpart D -- Direct Allotment of Formula Entitlements
39.50 Definitions.
39.51 Notice of allotments.
39.52 Initial allotments.
39.53 Obligation of funds.
39.54 Apportionment of entitlements to schools.
39.55 Responsible local fiscal agent.
39.56 Financial records.
39.57 Access to and retention of local educational financial records.
39.58 Expenditure limitations for Bureau operated schools.
25 CFR 38.14 Subpart E -- Local Educational Financial Plan
39.60 Definitions.
39.61 Development of local educational financial plans.
39.62 Minimum requirements.
39.63 Procedures for development of the plan.
39.64 Procedures for financial plan appeals.
25 CFR 38.14 Subpart F -- Contingency Funds
39.70 Definitions.
39.71 Establishment of the School Disaster Contingency Fund.
39.72 Continuing and cumulative provisions.
39.73 Purposes.
39.74 Application procedures.
39.75 Disbursement procedures.
39.76 Prohibitions of expenditures.
39.77 Transfer of funds from Facilities Engineering for other
contingencies.
39.78 Establishment of a formula implementation set-aside fund.
39.79 Prohibition.
25 CFR 38.14 Subpart G -- School Board Training
39.90 Establishment of a school board training fund.
39.91 Other technical assistance and training.
39.92 Training activities.
39.93 Allowable expenditures.
39.94 Limitations on expenditures.
39.95 Reporting of expenditures.
39.96 Provision for annual adjustment.
39.97 Training for agency school board.
25 CFR 38.14 Subpart H -- Student Transportation
39.100 Definitions.
39.101 Purpose and scope.
39.102 Allocation of transportation funds.
39.103 Annual transportation formula adjustment.
25 CFR 38.14 Subpart I -- Interim Maintenance and Minor Repair Fund
39.110 Establishment and funding of an Interim Maintenance and Minor
Repair Fund.
39.111 Conditions for distribution.
39.112 Allocation.
39.113 Use of funds.
39.114 Limitations.
25 CFR 38.14 Subpart J -- Administrative Cost Formula
39.120 Purpose and scope.
39.121 Definitions.
39.122 Allotment of education administrative funds.
39.123 Allotment exception for FY 1991.
25 CFR 38.14 Subpart K -- Pre-kindergarten Programs
39.130 Interim fiscal year 1980 and fiscal year 1981 funding for
pre-kindergarten programs previously funded by the Bureau.
39.131 Addition of pre-kindergarten as a weight factor to the Indian
School Equalization Formula in fiscal year 1982.
25 CFR 38.14 Subpart L -- Contract School Operation and Maintenance
Fund
39.140 Definitions.
39.141 Establishment of an interim fiscal year 1980 operation and
maintenance fund for contract schools.
39.142 Distribution of funds.
39.143 Future consideration of contract school operation and
maintenance funding.
Authority: 25 U.S.C. 13; 25 U.S.C. 2008.
Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 38.14 Subpart A -- General
25 CFR 39.1 Purpose and scope.
The purpose of this rule is to provide for the uniform direct funding
of BIA operated and tribally operated day schools, boarding schools, and
dormitories. These rules apply to all schools and dormitories and
administrative units which are funded through the Indian School
Equalization Program of the Bureau of Indian Affairs.
25 CFR 39.2 Definitions.
Assistance under this rule is subject to the following definitions
and requirements relating to fiscal and administrative matters.
Definitions of terms that are used throughout the part are included in
this subpart. As used in this part, the term:
(a) Agency means an organizational unit of the Bureau which provides
direct services to the governing body or bodies and members of one or
more specified Indian Tribes. The term includes Bureau Area Offices
only with respect to off-reservation boarding schools administered
directly by such Offices.
(b) Agency school board means a body, the members of which are
appointed by the school boards of the schools located within such
agency, and the number of such members shall be determined by the
Director in consultation with the affected tribes, except that, in
Agencies serving a single school, the school board of such school shall
fulfill these duties.
(c) Agency Superintendent of Education or Superintendent means the
Bureau official in charge of Bureau education programs and functions in
an Agency who reports to the Director.
(d) Area Director for Education means the Bureau official in charge
of Bureau Education programs and functions in a Bureau Area Office and
who reports to the Director.
(e) Assistant Secretary means the Assistant Secretary of Indian
Affairs, Department of the Interior, or his or her designee.
(f) Average daily membership or ADM means the average of the actual
membership in the school, for each student classification given separate
weightings in the formula. Only those eligible students shall be
counted as members who are:
(1) Listed on the current roll of the school counting them during the
count week;
(2) Not listed as enrolled in any other school during the same
period; and
(3) In actual attendance at the school counting them at least one
full day during the count week in which they are counted.
(g) Bureau means the Bureau of Indian Affairs of the Department of
the Interior.
(h) Decision of record means a formal written confirmation of a voted
action by a school board during a formally constituted school board
meeting.
(i) Director means the Director of the Office of Indian Education
Programs for the Bureau of Indian Affairs, or his or her designee.
(j) Eligible student means an Indian student properly enrolled in a
Bureau school or dormitory, or a tribally operated school or dormitory
funded by the Bureau, who meets the applicable entry criteria for the
program(s) in which he or she is enrolled.
(k) Entitlement means that amount of funds generated by the Indian
School Equalization Formula for the operational support of each school.
(l) Advice of allotment means the formula written document advising a
school or an administrative office of its entitlement under the formula.
The advice of allotment conveys legal authority to obligate and expend
funds in a given fiscal year.
(m) Allotment means the amount of the obligational authority conveyed
to a given school or Bureau administrative office by its advice of
allotment in a given fiscal year.
(n) Indian means a person who is a member of an Indian tribe.
(o) Indian Tribe means any Indian Tribe, Band, Nation, Rancheria,
Pueblo, Colony or Community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688) which is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.
(p) Program means each or any subset of the Indian School
Equalization Program (ISEP), but not the ISEP itself, for which a
separately computable dollar amount may be generated by a school. Each
program classification is a cost account in an accounting system. The
following accounting programs are those established by this part:
(1) Instructional costs;
(2) Boarding costs;
(3) Dormitory costs;
(4) Bilingual instruction costs;
(5) Exceptional child education costs;
(6) Intense residential guidance costs;
(7) Student transportation fund costs;
(8) School maintenance and repair fund costs;
(9) School board training fund costs;
(10) Pre-kindergarten costs; and
(11) Previously private contract school operation and maintenance
costs.
(q) School means an educational or residential center operated by or
under contract with the Bureau of Indian Affairs offering services to
Indian students under the authority of a local school board and the
direction of a local school supervisor. A school may be located on more
than one physical site. The term school, unless otherwise specified, is
meant to encompass day schools, boarding schools, previously private
schools, cooperative schools, contract schools and dormitories as those
terms are commonly used.
(r) Local School Board, (usually referred to as school board)
including off-reservation boarding school boards and dormitory school
boards, when used with respect to a Bureau school, means a body chosen
to exercise the functions of a school board with respect to a particular
Bureau operated or funded school, in accordance with the laws of the
tribe to be served or, in the absence of such laws, elected for similar
purpose by the parents of the Indian children attending the school,
except that in schools serving a substantial number of students from
different tribes, the members shall be appointed by the governing bodies
of the tribes affected; and the number of such members shall be
determined by the Director in consultation with the affected tribes.
(s) Supervisor or local school supervisor means the individual in the
position of ultimate authority at any Bureau administered or tribally
operated contract school.
(t) Tribally operated contract school or contract school means a
school (other than a public school) which is financially assisted under
a contract with the Bureau.
(u) Weighted student unit (WSU) means the measure of student
membership adjusted by the weights or ratios used as factors in the
Indian School Equalization Formula established in 39.10 below. The term
weighted student unit also describes the measure by which supplements to
the weighted student count at any school are augmented as the result of
the application of small school supplements or Alaskan school
supplements.
25 CFR 39.3 General provisions.
(a) All funds appropriated by the Congress for the support and
administration of Bureau operated or contracted elementary and secondary
educational purposes and programs shall be allocated in accordance with,
and be distributed through, the Indian School Equalization Program,
unless a specific amount of funds are added or reduced for a particular
class of schools through the budget and appropriations process.
(b) Each expenditure of funds authorized in part 39 is without
exception subject to the availability of funds.
25 CFR 39.3 Subpart B -- The Indian School Equalization Formula
25 CFR 39.10 Establishment of the formula.
There is hereby established the Indian School Equalization Formula
(ISEF). Funds for the instruction and residential care of Indian
children shall be earned as an entitlement by each local school
according to a weighted student unit formula. The funds allocated
through the formula shall be computed as follows:
(a) The basic instructional average daily membership (ADM) shall be
counted at each school location as provided for in subpart C of this
part. From the application of ratios or weights as provided in these
rules a weighted student unit (WSU) value for each school location is
derived by multiplying the student count for each program area by the
weights.
(b) If the school is a boarding school or a dormitory, the
residential students will produce program units which will, by the
application of weights, produce additional WSU's.
(c) The ADM count of eligible small schools or dormitories may
generate additional unit supplements.
(d) All Alaskan schools are eligible under the formula to generate
supplemental units.
(e) The total weighted student unit count for each school location is
then multiplied by a base unit value to derive the estimated dollar
entitlement to each school(s).
The total amount is made available to each school(s), under the rules
related to administrative provisions provided in subparts C and D of
this part.
25 CFR 39.11 Definitions.
Assistance to approved school(s) under this subpart is subject to the
definitions established in 39.2 and to the following definitions for
determining student counts in the various weighted areas. As used in
the subpart, the term:
(a) Base or base unit means both the weight or ratio of 1.0 and the
dollar value annually established for that weight or ratio which
represents students in grades 4 through 8 in a typical instructional
program.
(b) Basic program means the instructional program provided all
students at any age level exclusive of any supplemental programs which
are not provided to all students in day or boarding schools.
(c) Grad or Grade Level, followed in most cases by K or a number,
means a classroom grouping ordinarily determined by student age and
successful completion of a criterion number of years of previous
schoolwork. The use of this term does not preclude ISEP funding of
programs in which instruction is non-graded or individualized, or which
otherwise depart from grade-level school structure. For purposes of
funding under the ISEP, students in such programs shall be counted as in
the grade level to which they would ordinarily be assigned based on
their chronological age and number of years of schooling completed.
(d) Grades 1-3 means a weighted program for a student who is present
during the count week (see 39.30(b)) in grades 1 through 3 who is at
least 6 years old by December 31 of the fall of the school year during
which the count occurs and is a member of an educational program
approved by the board which is conducted at least six gross hours daily
during at least 180 days per school year. Gross hours means from the
start of the school day to the end of the school day including all
activities.
(e) Grades 4-8 and grades 9-12 means a weighted program for a student
who is present during the count week (see 39.30(b)) in either of the
programs encompassing grades 4 through 12 who is a member of an
educational program approved by the school(s) at least six gross hours
daily during at least 180 days per school year and shall not have
achieved the age of 21 nor have received a high school diploma or its
equivalent.
(f) Kindergarten means a weighted program for a student who is
present during the count week (see 39.30(b)) who is at least 5 years
old by December 31 of the fall of the school year during which the count
occurs and a member of an educational program approved by the school(s)
conducted at least four gross hours daily during at least 180 days per
school year. Otherwise eligible students who are in a program conducted
less than four hours daily, but at least two gross hours daily are
eligible as half-time kindergarten students.
(g) Intense Bilingual means a weighted program for a student who is
present during the count week, whose primary language is not English,
and who is receiving academic instruction daily through oral and/or
written forms of an Indian or Alaskan Native language, as well as
specialized instruction in English for non native speakers of English,
under resources of the ISEP.
(h) Intensive residential guidance means the weighted program for a
resident student that needs special residential services due to one or
more of the problems identified below, and that appropriate
documentation is in that student's file as follows:
(1) Presenting problem:
(i) Court of juvenile authority request for placement resulting from
a pattern of infractions of the law.
(ii) Explusion from previous school under due process.
(iii) Referral by a licensed psychologist, psychiatrist or certified
psychiatric social worker as an emotionally disturbed student.
(iv) History of truancy more than 50 days in the last school year or
a pattern of extreme disruptive behavior.
(2) Documentation required:
(i) Written request signed by officer of court or juvenile authority;
(ii) Certification by expelling school;
(iii) Psychologist, certified psychiatric social worker, or
psychiatrist report; or
(iv) Attendance and behavior data from records of prior school, court
records, or from social agency records and a written documentation
summarizing such data. For all students placed in intensive residential
guidance programs, there shall be further documentation of a diagnostic
workup, a placement decision by a minimum of three staff members, and a
record of an individualized treatment plan for each student that
specifies service objectives.
(v) No student shall be classified under Intense residential guidance
who is eligible for services at a full-time or part-time service level
because of a handicapping condition as defined under Exceptional Child
programs in paragraph (i) of this section.
(i) Exceptional Child Program means weighted programs for students
who are receiving special education and related services, consistent
with the identification, evaluation and provisions of a free appropriate
public education required by part B of the Education of )5 and section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794; 45 CFR part 84)
and who have the following diagnosed impairments:
(1) Deaf means a hearing impairment which is so severe that the child
is impaired in processing linguistic information through hearing, with
or without amplification, which adversely affects educational
performance.
(2) Hard of hearing means a hearing impairment, whether permanent or
fluctuating, which adversely affects a child's educational performance
but which is not included under the definition of deaf in this section.
(3) Mentally retarded means significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the developmental period, which adversely
affects a child's educational performance.
(4) Severely Multi-handicapped means concomitant impairments (such as
mentally retarded-blind; mentally retarded-deaf) the combination of
which causes such severe educational problems that they cannot be
accommodated in regular educational programs or in special education
programs solely for one of the impairments. The term includes
deaf-blind children.
(5) Orthopedically impaired means a severe orthopedic impairment
which adversely affects a child's educational performance. The term
includes impairments caused by congenital anomaly (e.g., clubfoot,
absence of some member, etc.), impairments caused by disease (e.g.,
poliomyelitis, bone tuberculosis, etc.), and impairments from other
causes (e.g., cerebral palsy, amputations, and fractures or burns which
cause contractures).
(6) Other health impaired means limited strength, vitality or
alertness, due to chronic or acute health problems such as a heart
condition, tuberculosis, rheumatic fever, nephritis, asthma, hemophelia,
epilepsy, lead poisoning, leukemia, or diabetes or the existence of a
physical or mental impairment which substantially limits one or more
major life activities, but which is not covered in paragraphs (i) (1)
through (12) of this section.
(7) Emotionally disturbed means a condition exhibiting one or more of
the following characteristics over a long period of time and to a
significant degree, which adversely affects educational performance and
requires small group instruction, supervision, and group counseling:
(i) An inability to learn which cannot be explained by intellectual,
sensory, or health factors;
(ii) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers:
(iii) Inappropriate types of behavior or feelings under normal
circumstances;
(iv) A general pervasive mood of unhappiness or depression; or
(v) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(8) Specific learning disability means a disorder in one or more of
the basic psychological processes involved in understanding or in using
language, spoken or written, which may manifest itself in an inability
to listen, think, speak, read, write, spell, or to do mathematical
calculations. The term includes such conditions as perceptual
handicaps, brain injury, minimal brain dysfunction, dyslexia, and
developmental aphasia. The term does not include children who have
learning problems which are primarily the result of vision, hearing, or
motor handicaps, or mental retardation, or of environmental, cultural,
or economic disadvantage.
(9) Speech impaired means a communication disorder, such as
stuttering, impaired articulation, or a voice impairment, which
adversely affects a child's educational performance.
(10) Visually handicapped means a visual impairment which, even with
correction, adversely affects a child's educational performance. The
term includes partially seeing, but not fully blind, children.
(11) Severely emotionally disturbed means a condition such as
schizophrenia, autism or the presence of the following characteristics
over a prolonged period of time and to a marked degree, which seriously
affects educational performance and requires intensive individual
therapy (which may be conducted either in or out of the school setting),
individual instruction, and supervision:
(i) An inability to learn which cannot be explained by intellectual,
sensory, or health factors;
(ii) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers:
(iii) Inappropriate types of behavior or feelings under normal
circumstances;
(iv) A general pervasive mood of unhappiness or depression; or
(v) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(12) Severely and profoundly retarded means a degree of mental
retardation (as defined in paragraph (i)(3) of this section) which
severely restricts and delays major aspects of intellectual functioning
so as to require intensive small group instruction and supervision.
(13) Students requiring home/hospital based instruction means
students provided a program of instruction in a home or hospital setting
because in the judgement of a physician a student cannot receive
instruction in a regular public school facility without endangering the
health or safety of the student or of other students.
(14) Multihandicapped means concomitant impairments (such as mentally
retarded with a minor additional handicap such as speech impaired) the
combination of which causes educational problems that can not be
accommodated in regular education programs or in part-time special
education programs.
(15) Blind means the possession of a central vision acuity of 20/200
or less in the better eye with correcting glasses or a peripheral field
of vision so contracted that its widest diameter is less than 20%.
(16) Full-time -- High Service Level means a program of special
education and related services provided to an exceptional student which
consists of fifteen or more hours per week (or 60% or more of the total
instructional time) of instruction and/or required related services (as
described in the students individualized education program), provided
outside of the regular classroom. In geographically isolated, smaller
schools where facilities are limited, a full time program may consist of
fifteen or more hours per week (or 60% or more of the total
instructional time) of specialized individual or small group instruction
or required related services regardless of where the services are
actually provided (including the regular classroom).
(17) Part-time -- Moderate Service Level means any program of regular
education modified to provide specialized instruction and/or required
related services (as described in the student's individualized education
program) which does not provide at least the number of hours in the
definition of Full-time -- High Service Level Exceptional Child Program
set forth in paragraph (i)(14) of this section.
(18) Classification of a student in full or part-time service levels
in residential care programs shall be based upon prior classification of
the student in an instructional program serving his/her handicapping
condition.
(j) Resident means a student officially enrolled in the residential
care program of a Bureau operated or funded school and actually
receiving supplemental services provided to all students who are
provided room and board in a boarding school or a dormitory during those
weeks when student membership counts are conducted. Such students must
be members of the instructional program in the same boarding school in
which they are counted as residents. To be counted as dormitory
residents, students must be enrolled in and be current members of a
public school in the community in which they reside.
/1/ 45 CFR 121a was redesignated as 34 CFR 300 at 45 FR 77368, Nov.
21, 1980.
25 CFR 39.12 Entitlement for instructional purposes.
BIA educational funds for the instruction of elementary and secondary
Indian children shall be computed according to the following weighted
student unit factors:
25 CFR 39.13 Entitlement for residential purposes.
Basic funds for student residential purposes shall be computed
according to the following weighted student unit factors:
25 CFR 39.14 Entitlement for small schools.
To compensate for the additional costs of operating small schools,
qualified schools shall receive the following adjustments:
(a) Instructional programs in day and boarding schools. For each
separate small school having an instructional average daily membership
count (called x) of less than 100 students, the formula ((100-x) divided
by 200) times x shall be used to generate add-on weighted pupil units
for each such school.
(b) Boarding school residential programs. For each separate small
boarding school having a resident average daily membership count (called
y) of less than 100 students, the formula ((100^y) divided by 200) times
y shall be used to generate add-on weighted pupil units for each such
boarding school.
(c) Dormitory residential programs serving public schools. For each
small dormitory program having an average daily membership count (called
z) of less than 100 students, the formula ((100^z) divided by 200) times
z shall be used to generate add-on weighted pupil units for each
dormitory.
25 CFR 39.15 Alaskan school cost supplements.
To meet the statutory requirements for a salary supplement for
Alaskan educational staff, and add-on weight of .25 will be used as a
factor by which all pupil program-generated weighted students shall be
supplemented. Such generated Alaskan cost supplements will be added to
the weighted pupil units generated by each school in the same manner as
small school units.
25 CFR 39.16 Computation of school entitlements.
The sum of all weighted student units, including any small school and
any Alaskan school cost supplements shall be computed for each school
under the management of the Director. The total number of units
generated by each approved school shall be multiplied by a base dollar
value which is equivalent to a base weight of 1.0 in the formula. This
base value shall be computed annually by the Director by dividing the
total of all weighted students (WSU) generated by all approved schools
into the total amount appropriated for distribution through the Indian
School Equalization Formula.
25 CFR 39.17 Comparability with public schools.
(a) In no case shall a Bureau or contract school attended by an
Indian student receive less under these regulations than the average
payment from the Federal funds received per Indian student, under other
provisions of law, by the public school district in which the student
resides. Any school which is funded at a lower level per student under
the ISEP than either the average daily expenditure per student for
instructional costs in the public schools in the State in which it is
located, or the amount per Indian student which the local public school
district in which it is located receives from all Federal funding
sources, shall present documentation of this fact to the Director of the
Office of Indian Education Programs.
(b) Upon verification that comparisons in the documentation received
cover comparative expenditures, and that the inequity indeed exists, the
Director shall adjust the school's allocation to equal the payment
per-Indian student of the public school district or State involved.
(c) Funds for such adjustment shall be taken from the Formula
Implementation Set Aside established under 39.78 of these regulations.
25 CFR 39.18 Recomputations of current year entitlements.
The Director shall continuously monitor the processes by which the
final allocation of each school's entitlement is made. When changes
occur either in the total amount of funds available for the operations
of schools or in the total number of weighted student units for all
schools due to a change in the number of weighted student units reported
or altered by auditing, the Director shall consider whether adjustments
are necessary in order that the full available appropriations are fairly
allocated to the schools, and that all funds are fully allotted to
schools.
25 CFR 39.19 Phase-in provisions.
(a) Limits on excess gains. No school shall receive a percentage
increase in its total fund entitlement, over the comparable budget
amount per school in the FY 79 Bureau Education budget, which is greater
than the following percentage ratios:
(1) In FY 80 -- 20%
(2) In FY 81 -- 70%
(b) Limits on excess losses. No school shall receive a percentage
decrease in its total fund entitlement, below the comparable budget
amount in the FY 79 Bureau Education budget, which is greater than the
following percentage ratios:
(1) In FY 80 -- 10%
(2) In FY 81 -- 30%
(c) Effects of limits on losses and gains. Local school gains in
excess of the above percentage limits for each of the limited years
shall be returned to the common base for all schools and distributed
through the formula. Funds to limit losses in excess of the above
limits shall be withdrawn from the common base for all schools and
distributed to the schools subject to such excess losses.
(d) Transfer of fiscal accountability. To allow time for developing
fiscal accountability, knowledge, skill and responsibility at the local
school level and in order to support accountability by responsible
Fiscal Agents under section 3679 of the Revised Statutes (the
Anti-Deficiency Act), a period of one year (FY 1980) shall be used
during which the legal allottee for each Bureau-operated school shall be
the Education Superintendent of the Agency within which the school is
located. In the case of off-reservation boarding schools and other
Bureau-operated schools not served by an Agency Education Office, the
Area Education Director shall be the legal allottee. Further allocation
of funds under this rule shall be fully in accordance with the Indian
School Equalization Program and Formula, and expenditures shall be made
in accordance with the financial planning provisions of section E of
this rule.
(e) Beginning in FY 1981, the allottee shall be as otherwise
determined in this rule.
25 CFR 39.20 Development of uniform, objective and auditable student
weighted area placement criteria and guidelines.
The Director shall develop: (a) Uniform, objective and auditable
placement criteria and guidelines for placement of students in
dormitories and residential care programs of boarding schools and in
special weighted program areas which expand upon the definitions in this
part; and (b) a uniform and auditable system of enrollment criteria and
attendance boundaries for each school in the Bureau educational program.
The Director shall publish these criteria and guidelines in the Bureau
Manual (BIAM) and widely disseminate them to each school prior to
September 1, 1980, so that appropriate student placements can occur
before the FY 1981 October student count.
25 CFR 39.21 Future considerations for weighted programs.
(a) Within twelve months of the final publication of this rule, the
Director shall review the following factors in depth, and determine
whether to incorporate each into the weighted pupil formula:
(1) A rural isolation adjustment.
(2) A staff cost adjustment.
(3) A gifted and talented student program.
(4) A vocational education program.
(5) A facilities operation and maintenance program.
(6) Additional institutional size factors.
(b) The Director may also recommend incorporation of other factors,
based upon the Bureau's experience in the first year's operation of the
ISEP, and upon the Standards to be developed under section 1121 of the
Act.
(c) The Director shall also review the adequacy of the weighted
factors, procedures, criteria and definitions now in this rule,
throughout part 39. On the basis of this review, the Director shall
present a comprehensive report of findings, with recommendations for
amendment of this rule, to the Secretary, who shall incorporate them in
a Notice of Proposed Rulemaking to include a minimum of sixty (60) days
for public comment.
25 CFR 39.22 Authorization of new program development, and termination
of programs.
(a) Within one year of the final publication of this rule, the
Secretary shall develop uniform procedures and criteria for the
authorization of new schools where no Bureau funded or operated school
program has previously existed, and for authorization of expansions of
existing Bureau funded or operated school programs to serve additional
age groups not previously served. These procedures and criteria shall
be published as amendments to this rule under a new Notice of Proposed
Rulemaking, which shall contain provisions for a minimum of sixty (60)
days of public review and comment prior to final publication.
(b) Procedures and criteria developed under this section shall be
integrated with existing procedures under 25 CFR part 271 for
determining contractable functions of the Bureau, in order to produce a
coherent system for authorization of Tribally initiated program
development under contracting procedures of Pub. L. 93-638, which is
compatible with Bureau initiated program development.
(c) Procedures and criteria developed under this rule shall also
contain provisions for making decisions regarding closing schools and
terminating Bureau programs of education. These shall provide for full
consultation with the Indian persons and Tribes served by the programs
and schools involved in any such decisions.
25 CFR 39.23 Review of contract schools supplemental funds.
Before the end of formula phase-in, the Director shall consider the
impact on equalization of supplemental funds appropriated for aid to
schools under the Johnson O'Malley Act and under title IV of the Indian
Education Act, which are available to contract schools but not to Bureau
schools, and determine appropriate adjustments, if any. Any adjustments
in the ISEP which results from this review shall be effected by formal
revision of this rule, under a Notice of Intended Rulemaking published
in the Federal Register, and shall be subject to public comment for a
minimum of sixty (60) days prior to final rulemaking.
25 CFR 39.23 Subpart C -- Formula Funding Administrative Procedures
25 CFR 39.30 Definitions.
As used in this subpart, the term:
(a) Certifying the validity of student counts means that counts of
student ADM have been accurately recorded in compliance with
specifications of these rules, and that the Agency Superintendent of
Schools, the local school supervisor, and local school board
chairperson, where a school board exists, testify to and confirm the
correctness of this count.
(b) Count week means the last full week in September for the purposes
of calculating allotments.
(c) Student classification means any special student need area that
receives a separate weighting through the Indian School Equalization
Formula.
(44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30,
1982 and amended at 49 FR 36368, Sept. 17, 1984)
25 CFR 39.31 Conditions of eligibility for funding.
(a) To be eligible for direct formula funding as established in
Subpart B of this part, a day school, boarding school, or dormitory must
meet minimum standards, or, failing to do so, must include in its
financial plan steps acceptable to the Director for taking corrective
action to meet the standards to be prescribed pursuant to section 1121
of the Education Amendments of 1978 (Pub. L. 95-561; 25 U.S.C. 2001).
Until such standards are prescribed, the Director shall determine
eligibility for funding in accordance with established procedures for
authorizing Bureau operated schools.
(b) To be eligible for direct formula funding, a tribally operated
day or boarding school or dormitory must meet the requirements of part
271 of this chapter (25 CFR part 271) for receipt of Bureau Education
funds under contracts for school operation.
25 CFR 39.32 Annual computation of average daily membership.
(a) Average daily membership (ADM) as defined in 39.2(f) shall be
determined during the last full school week in September during which
all students eligible under the definition shall be counted by student
program classification.
(b) The Director shall direct the receipt and management of
information necessary to obtain timely ADM reports from schools. Agency
education offices and, in the case of off-reservation boarding schools,
Area education offices together with each school's supervisor and school
board chairperson where a board exists shall be responsible for
certifying the validity of each school's student counts. The September
ADM will be used to determine final allotments for the school year.
(49 FR 36368, Sept. 17, 1984)
25 CFR 39.33 Special education unduplicated count provision.
In counting special education ADM with the exception of speech
therapy, no child shall be counted or funded twice for participation in
more than one special education program.
25 CFR 39.34 Substitution of a count week.
A school may petition the Director to substitute another week in the
same month for the specified count week if it can be established that to
use the specified count week would result in grossly inaccurate student
counts. Where tribal ceremonial days are known in advance, such a
petition shall be submitted in advance of the determined count week.
25 CFR 39.35 Computation of average daily membership (ADM) for
tentative allotments.
Tentative allotments for each future year's funding shall be based on
the ADM for the September count week of the current year.
(49 FR 36368, Sept. 17, 1984)
25 CFR 39.36 Declining enrollment provision.
If the decline of a school's average daily membership exceeds ten
percent in any given school year, the school may elect to request
funding based on the average of the current and previous years'
September ADM count.
(49 FR 36368, Sept. 17, 1984)
25 CFR 39.37 Auditing of student counts.
The Secretary shall provide for auditors as required to assure
timeliness and validity in reporting student counts for formula funding.
25 CFR 39.38 Failure to provide timely and accurate student counts.
(a) Responsible Bureau school, Agency, Area, and Central Office
administrators may be dismissed for cause, or otherwise penalized, for
submission of invalid or fraudulent annual student ADM counts or
willfully inaccurate counts of student participation in weighed program
areas. A person who knowingly submits or causes to be submitted to a
Federal official or employee false information upon which the
expenditure of Federal funds is based, may be subject to criminal
prosecution under provisions such as sections 286, 287, 371, or 1001 of
title 18, U.S. Code.
(b) Failure of responsible Federal officials to perform
administrative operations which are essential to the ISEP, on a timely
basis, shall result in swift disciplinary action by Bureau supervisory
personnel, under existing procedures. Failure or refusal of Bureau
supervisory personnel to take disciplinary action shall result in
disciplinary action against them by higher level supervisors.
25 CFR 39.39 Delays in submission of ADM counts.
(a) If a Bureau operated or funded school delays submission of an ADM
count, by more than (2) weeks beyond the final count week in November,
for that school, the Director shall set aside an amount equal to the
tentative allotment for that school out of the funds available for
allotment, and shall proceed to compute the initial allotments for all
other schools in the Bureau school system, based upon remaining funds
available for allotment. The allotment for the school which has failed
to submit a timely ADM count shall be computed when the ADM count is
received, but shall not exceed the amount set aside therefore. Any
amount remaining in the set-aside fund, after computation of the
allotment, shall be transferred into the Formula Implementation
Set-Aside Fund, and distributed in accordance with provisions of 39.78
in subpart F.
(b) In no case shall the Director delay the computation of initial
allotments for schools which have submitted timely ADM counts while
waiting for those schools which have failed to submit.
25 CFR 39.39 Subpart D -- Direct Allotment of Formula Entitlements
25 CFR 39.50 Definitions.
As used in this subpart, the term:
(a) Apportionment means that part of a school's allotment received
each quarter as an authorization to obligate funds.
(b) Approved apportionment schedules means that approval given for
the quarterly obligation of funds for a given appropriation of funds for
the Bureau.
(c) Authorization to obligate means that approval given to a school
to incur obligations of funds against a given appropriation.
(d) Final allotment means that notice of funds available to schools,
based on the September student count as computed through the Indian
School Equalization Formula (ISEF) based on full distribution of Indian
School Equalization Program (ISEP) funds available for the fiscal year.
(e) Initial allotment means that notice of funds available to schools
based on the September student count as computed through the Indian
School Equalization Formula prior to any adjustments due to fluctuating
student counts.
(f) Responsible fiscal agent means the local school supervisor of a
Bureau operated school except where such authority is designated to the
Agency Superintendent of Education by a school board decision of record
or by a written agreement signed by both parties. For contract schools,
the responsible fiscal agent shall be designated in an action of record
by the contractor.
(g) Tentative allotment means that notice of funds available to
schools based on the September student count as computed through the
Indian School Equalization Formula based on a proposed appropriation in
the President's budget for the next fiscal year.
(44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30,
1982 and amended at 49 FR 36368, Sept. 17, 1984)
25 CFR 39.51 Notice of allotments.
The Director shall notify school administrators and boards of
allotments of funds based on the September ADM count established under
subpart B of this part according to the following schedule:
(a) Tentative allotments shall be made by March 15 of the prior
fiscal year;
(b) Initial allotments shall be made not later than November 15 of
the fiscal year; and
(c) Final allotments shall be made not later than January 15 of the
fiscal year.
(49 FR 36368, Sept. 17, 1984)
25 CFR 39.52 Initial allotments.
The Assistant Secretary -- Indian Affairs, as requested by the
Director, shall make initial allotments to Bureau operated schools,
Agency Education Offices, and Central and Area Offices. The Assistant
Secretary -- Indian Affairs shall make initial allotments for tribally
operated schools to appropriate Agency Superintendents of Education, or
as otherwise provided by the Director.
25 CFR 39.53 Obligation of funds.
(a) Authority to obligate funds in the Bureau operated schools shall
be governed by provisions of the Bureau Manual (42 BIAM).
(b) Authority to obligate funds in tribally operated contract schools
shall be governed by contracting procedures of 25 CFR part 271.
(c) Authority to obligate funds in all Bureau funded and operated
schools shall be based upon the tentative allotment ( 39.51) for the
period beginning October 1 of any fiscal year. The tentative allotment
as restricted by a continuing resolution, if applicable, would govern
until computation and notification of initial allotments as described in
this sub-part, as adjusted by the Director in accordance with 39.75,
39.78, 39.90, 39.102 and 39.111.
25 CFR 39.54 Apportionment of entitlements to schools.
(a) Bureau operated schools. The Director shall make quarterly
apportionments directly to the local school supervisor or to the
school's responsible fiscal agent as specifically delegated in
accordance with 39.55 of this part. Such quarterly apportionments will
be made as determined in 39.53 of this part.
(b) Contract schools. The Agency Superintendent of Education, or
another agent as designated by the Director, shall be responsible
through the contracting officer in accordance with 25 CFR part 271 for
effecting and adjusting contracts with tribally operated schools.
25 CFR 39.55 Responsible local fiscal agent.
The responsible fiscal agent shall:
(a) Expend funds solely in accordance with the local educational
financial plan, as ratified or amended by the local school board, unless
in the case of Bureau operated schools, this plan has been overturned
under the appeal process prescribed in these rules, in which case
expenditures shall be made in accordance with the local educational
financial plan as determined by the Agency Superintendent of Education.
(b) Sign all documents required for the obligation and or payment of
funds and documentation of receipt of goods and services.
(c) Report at least quarterly to the local school board on the
amounts expended, amounts obligated and amounts currently remaining in
funds budgeted for each program of services in the local financial plan.
(d) Recommend changes in budget amounts, as required for effective
management of resources to carry out the local financial plan, and
incorporate such changes in the budget as are ratified by the local
school board, subject to provisions for appeal and overturn.
25 CFR 39.56 Financial records.
Each responsible fiscal agent receiving funds under the ISEP shall
maintain expenditure records in accordance with financial planning
system procedures as required herein.
25 CFR 39.57 Access to and retention of local educational financial
records.
The Comptroller General, the Assistant Secretary, the Director, or
any of their duly authorized representatives shall have access for audit
and examination purposes to any of the local schools' accounts,
documents, papers and records which are related or pertinent to the
school's operation. The provisions of 25 CFR 271.47 will be applicable
in the case of tribally contracted schools.
25 CFR 39.58 Expenditure limitations for Bureau operated schools.
(a) Expenditure of allotments shall be made in accordance with
applicable federal regulations and local education financial plans, as
defined in 39.60(b) of subpart E.
(b) Where there is disagreement between the Area or Agency support
service staff and the responsible fiscal agent regarding the propriety
of the obligation or disbursement of funds, appeal shall be made to the
Director.
25 CFR 39.58 Subpart E -- Local Educational Financial Plan
25 CFR 39.60 Definitions.
As used in this subpart, the term:
(a) Consultation means soliciting and recording the opinions of
school boards regarding each element in the local financial plan, as set
forth below, and incorporating those opinions to the greatest degree
feasible in the development of the local educational financial plan at
each stage thereof.
(b) Local educational financial plan means that plan which programs
dollars for educational services for a particular Bureau operated or
funded school which has been ratified in an action of record by the
local school board, or determined by the superintendent under the appeal
process set forth in this subpart.
(c) Budget means that element in the local educational financial plan
which shows all costs of the plan by discrete programs and sub-cost
categories thereunder.
25 CFR 39.61 Development of local educational financial plans.
A local educational financial plan shall be developed by the local
school supervisor, in active consultation with the local school board,
based on the tentative allotment received as provided in 39.51.
25 CFR 39.62 Minimum requirements.
The local financial plan shall include, at a minimum, each of the
following elements:
(a) Separate programing of funds for each group of Indian students
for whom a discrete program of services is to be provided. This must
include at a minimum each program for which funds are allotted to the
school through the Indian School Equalization Program;
(b) A brief description, or outline, of the program of student
services to be provided for each group identified;
(c) A budget showing the costs projected for each program, as
determined by the Director through the development of a uniform cost
accounting system related to the Indian School Equalization Program;
(d) A statement of the percentage relationship between the total of
the anticipated costs for each program and the amount the students
served by that program will generate under the Indian School
Equalization Formula. Beginning in FY 1981, there shall also be
included a statement of the cost incurred for each program in the
preceding fiscal year and the amount received for each such program as
the result of the Indian School Equalization Formula. For exceptional
child programs the plan must provide that at least 80% of the funds
generated by students served by the program be spent on those students;
(e) A provision for certification by the chairman of the school board
that the plan as shown, or as amended, has been ratified in an action of
record by the school board; or
(f) Except in the case of contract schools, a provision for
certification by the Agency Superintendent of Education that he or she
has approved the plan as shown, or as amended, in an action overturning
the rejection or amendment of the plan by the school board.
25 CFR 39.63 Procedures for development of the plan.
(a)(1) Within thirty (30) days after receipt of the tentative
allotment for the coming school year, the school supervisor shall meet
and consult with the local school board on the local financial plan.
(2) The school supervisor shall discuss at this meeting the present
program of the school and any proposed changes he or she wishes to
recommend. The school board members shall be given every opportunity to
express their own ideas as well as their views on the supervisor's
recommendations. Subsequently the school supervisor shall present a
draft plan to the school board with recommendations concerning each of
the elements outlined in this subpart.
(b) Within sixty (60) days of receipt of the tentative allotment, the
school board shall review the local financial plan as prepared by the
school supervisor and, by a quorum vote, shall have the authority to
ratify, reject or amend such financial plan.
(c) The school board shall have the authority, at any time following
the ratification of the financial plan on its own determination or in
response to the supervisor, to revise such plan to meet needs not
foreseen at the time of preparation of the plan.
(d) If the supervisor does not wish to file an appeal, he or she
shall transmit a copy of the approved local financial plan within two
weeks of the school board action, along with the official documentation
of the school board action, to the office of the Agency Superintendent
of Education. Later revisions to the financial plan must be transmitted
in the same manner.
(e) In the event that the school board does not act within the
prescribed deadline, the financial plan shall be referred to the Agency
Superintendent of Education for ratification, subject to subsequent
amendment by the school board in accordance with paragraph (c) of this
section.
(f) The Agency Superintendent of Education will review the local
financial plan for compliance with prescribed laws and regulations or
may refer the plan to the Solicitor's Office for legal review. If the
Superintendent notes any problem with the plan, he or she shall notify
the local board and local supervisor of the problem within two weeks of
receipt of the local financial plan and shall make arrangements to
assist the local school supervisor and board to correct the problem. If
the Superintendent is not able to correct the problem, it shall be
referred to the Director of the Office of Indian Education.
25 CFR 39.64 Procedures for financial plan appeals.
(a) If the supervisor of a school finds an action of the local school
board, in rejecting or amending the local financial plan, to be
unacceptable in his or her judgment as a professional educator, the
supervisor may appeal to the Agency Superintendent of Education under
the following procedures and conditions:
(1) The appeal must be presented in writing, within ten (10)
consecutive days of the supervisor's receipt of the school board
decision which is appealed.
(2) The written appeal shall contain, at a minimum, the following
information and documentation:
(i) All descriptive information concerning the element(s) in the
local financial plan being appealed, substantially as presented to the
school board prior to its decision.
(ii) Official documentation of the school board's decision amending
or rejecting the element(s) being appealed.
(iii) A statement of the school supervisor's reasons for appealing
the board's actions.
(iv) Signed certification by the supervisor that his/her reason for
appeal has been presented to the chairperson of the school board, and
that the school board has been offered full opportunity to submit a
counter statement to the Superintendent.
(3) If the supervisor of the school is also the Superintendent, the
appeal shall be made following the above procedures to the Director, who
shall follow procedures set forth below, as acting Superintendent for
the appeal.
(b) Within ten (10) consecutive days of receiving the appeal, the
Agency Superintendent of Education shall review the appeal documents to
determine if they are complete according to the criteria established in
this subpart, and if so shall notify both the school supervisor and the
school board of a date for an informal conference.
(c) Within twenty-five (25) consecutive days of receiving the
referral for approval, the Superintendent shall:
(1) Hear any arguments on either or both sides of the appeal issue(s)
at the option of either the supervisor of the school board involved.
(2) Following the informal conference, either sustain or reject the
appeal for good cause, which the Superintendent shall set out in writing
to both the supervisor and school board.
(d) Nothing in this subsection shall be construed as enabling the
supervisor of a tribally operated school to appeal decisions of a
contract school board to the Agency Superintendent for Education, nor as
empowering the Agency Superintendent for Education to overturn any
action of a contract school board under this appeal process as
established in Pub. L. 93-638.
(e) Within 180 days after the effective date of this subpart, the
Assistant Secretary shall develop and publish in the Federal Register
procedures for a formal hearing process which shall be available to
school boards who believe their decisions regarding the financial plan
have been overturned for other than good cause.
25 CFR 39.64 Subpart F -- Contingency Funds
25 CFR 39.70 Definitions.
As used in this subpart, the term:
(a) Cumulative total means the sum of all funds carried over from the
previous fiscal year(s) as unobligated and the amount for the current
year.
(b) Temporary replacement means the substitution of a structure on a
temporary basis in lieu of the original permanent structure that has
been lost to use. The temporary use will expire at the time that
arrangements are completed for the availability of a structure similar
to the original.
25 CFR 39.71 Establishment of the School Disaster Contingency Fund.
The Bureau's annual budget justifications shall identify an amount
for a separate budget account entitled the School Disaster Contingency
Fund (SDCF). All schools and dormitories receiving support under the
provisions of subparts B and C of this part are eligible for disaster
aid from this contingency fund.
25 CFR 39.72 Continuing and cumulative provisions.
Unobligated funds from the School Disaster Contingency Fund shall be
continued over at the end of a fiscal year in the same account for the
next year, except when otherwise provided in appropriations acts. New
funds shall be added when appropriated but the Fund should not exceed a
$1.5 million cumulative total unless otherwise determined by the
Assistant Secretary.
25 CFR 39.73 Purposes.
Disbursements from the School Disaster Contingency Fund shall be for
the following purposes:
(a) Costs of replacement of items in the following categories
including shipment and installation, in the event of their destruction
by earthquake, fire, flood, storm, or other ''acts of God,'' and acts of
massive and catastrophic vandalism where such costs are not already
covered in an insurance policy in force at the time of destruction and
where such destruction could not have been prevented by prudent action
by the officials responsible for the care of such items:
(1) Educational materials and supplies.
(2) Equipment and furnishings.
(3) Dormitory materials and supplies, for student use, and dormitory
equipment and furnishings, including those necessary for staff living
space, if integral to the dormitory operation.
(4) Food services supplies, furnishings and equipment not a fixed
part of structures.
(5) Office supplies and equipment for minimum essential
administrative operations.
(6) Janitorial supplies and cleaning equipment.
(7) Student clothing and personal supplies if destroyed along with a
school facility.
(8) Fuel supplies, tanks, lines, connections, meters, etc.
(9) Transportation equipment not otherwise provided for through the
General Services Administration.
(10) Costs of repair of utility systems or components thereof, as
necessary to restore utility services.
(b) Costs of temporary replacement of school facilities in the event
of their destruction by earthquake, fire, flood, storm or other ''acts
of God,'' until they can be reconstructed. These costs may include
purchase of or movement of portable structures, including costs of
delivery, installation, and connection to utility systems. They may
also include costs of any fixed equipment which is integral to such
structures. Structure types for which such temporary replacement costs
may be paid or reimbursed are as follows:
(1) Employee quarters, if required for employee housing due to the
isolation of the duty station, and on other housing is available within
a reasonable commuting distance. Reasonable commuting distance will be
determined under existing policies or by the Director.
(2) Dormitories, including employee apartment space if integral to
the operation of the dormitory.
(3) Offices required for minimum essential administrative operations
at the local school level.
(4) Academic facilities, including classrooms, kindergartens,
libraries and special instructional spaces such as vocational shops and
home economics rooms.
(5) Kitchens and dining facilities, including laundry and
multipurpose spaces.
(6) Infirmaries, clinics and health service spaces, in school
locations in which such services are not otherwise available.
(7) Separate restroom facilities, if none are otherwise available for
operation of instructional and dormitory programs.
25 CFR 39.74 Application procedures.
Application for disbursement from the School Disaster Contingency
Fund shall be made to the Director of the Office of Indian Education
Programs, through the Agency Superintendent of Education for the school
affected. Applications shall be subject to review and comment by the
Superintendent, and the Area Director for Education of the Area in which
the school is located, but shall not require the approval of these
officers. Such review and comment activities shall be carried out
concurrently with the Director's processing of the application so that
there are no delays in the transmission of the application to the
Director. The Director shall develop such application forms and
requests for information and documentation as are necessary to prove
both loss and the fact that replacement costs are outside the normal
budgetary capacity of the school operation at either the local school,
Agency or Area levels.
25 CFR 39.75 Disbursement procedures.
Disbursements from the SDCF shall be made only on the direct
authorization of the Director, on the merits of each such application
received, on a first come, first served basis and in amounts determined
at the Director's discretion in accordance with the purposes and
expenditure prohibitions set forth in this section.
25 CFR 39.76 Prohibitions of expenditures.
(a) The following costs shall not be reimbursed or paid under the
SDCF:
(1) Capital expenditures for construction of permanent facilities.
(2) Capital expenditures for reconstruction or refurbishment of
facilities no longer in use except where such expenditure is the most
cost effective way of temporarily replacing other destroyed facilities.
(3) Temporary replacement of facilities or replacement of equipment
which has simply become outmoded and obsolete, or which has been
''condemned'' or declared unserviceable by administrative procedures,
which is either still in existence or has been razed or destroyed as the
result of an administrative decision.
(4) Costs of continued normal program operations which are not
increased by a disaster.
(5) Personnel costs, except for temporary personnel hired to meet an
emergency situation.
(6) Start-up costs for new or expanding school programs.
(7) Costs of repairs necessitated by neglect, or failure to provide
routine scheduled maintenance and minor repair.
(8) Replacement costs of personal property of school employees,
regardless of value or circumstances of destruction.
(9) General budgetary shortfalls due to improper fiscal management.
(10) Budgetary shortfalls from a past fiscal period, after funds have
been carried forward in the SDCF to a new fiscal period.
(11) Costs of replacement of items stolen or destroyed by deliberate
vandalism, neglect, or abandonment.
(12) Costs of items, services or activities for which budgetary
provisions are made in other budget categories of the Bureau not subject
to distribution under the Indian School Equalization Program.
(b) Temporary replacement costs for the following structure types
shall not be paid or reimbursed from the SDCF:
(1) Recreational structures, such as auditoriums, field houses,
clubs, canteens, chapels, student centers, grandstands, gymnasiums, etc.
(2) Auxiliary buildings not used in student instructional or
dormitory programs, such as warehouses, storage sheds, garages,
firehouses, maintenance shops, law enforcement centers, instructional
materials and audio-visual centers, and employees' clubs.
(3) Temporary replacement costs shall be paid or reimbursed only to
the extent necessary to permit expeditious continued operation of the
school dormitory care programs affected by the destruction of
facilities.
25 CFR 39.77 Transfer of funds from Facilities Engineering for other
contingencies.
In order to reimburse schools for the costs of unforeseen and
extraordinary procurement costs and for major repairs of reconstruction
resulting from the disaster, the Director may request a transfer of
funds from funds appropriated for Bureau Facilities Engineering to the
School Disaster Contingency Fund for such purposes. When a separate
formula is established by regulation for school maintenance and
operations, an appropriate separate contingency fund shall be
established to cover such costs.
25 CFR 39.78 Establishment of a formula implementation set-aside fund.
There shall be set aside an amount not to exceed $2 million dollars
to be used during fiscal year 1980 by the Director to facilitate the
implementation of formula funding under this part. The fund is to
provide the means of adjusting particular local school entitlements
which are allocated in error due to underprojections, data error,
misclassification of students, and similar reporting errors, or to
provide for the initial funding of new schools under the formula, which
have been started after the spring ADM counts, without reducing
allotments made for other schools. Balances in this set-aside fund
shall be apportioned through the formula during the first week in April
by the Director or at such earlier time as he or she deems that
significant ADM reporting fluctuations have ceased.
25 CFR 39.79 Prohibition.
The formula implementation set-aside fund shall not be used as a
discretionary fund by the Director for any purpose, and it shall be
allocated solely through the Indian School Equalization Formula.
25 CFR 39.79 Subpart G -- School Board Training
25 CFR 39.90 Establishment of a school board training fund.
An amount shall be set aside annually for the purpose of providing
training for school board members as authorized by Pub. L. 95-561,
section 1129(d). Each school board shall receive a flat sum, initially
for FY 1980 to be set at $5,000, with Alaska and off-reservation
boarding schools to receive an additional 25 percent of this flat sum
amount per annum.
25 CFR 39.91 Other technical assistance and training.
The provision of funds under 39.90 of this subpart does not relieve
the Director of the responsibility for assuring that adequate technical
assistance and training services are provided to school boards to the
greatest extent possible. The provision of assistance under this
subpart does not preclude a school board or its trial governing body
from receiving financial or other assistance from the Bureau under the
Indian Self-Determination and Education Assistance Act (88 Stat. 2203;
Pub. L. 93-638; 25 U.S.C. 450 et seq.).
25 CFR 39.92 Training activities.
Training funds provided under this part may be used for training in
the following subject areas:
(a) Educational philosophy;
(b) Community school programs;
(c) Legal aspects of being a school board member;
(d) School board operations and procedures;
(e) Fiscal management;
(f) Formula funding;
(g) Personnel matters;
(h) Union negotiations;
(i) Contracting procedures and obligations;
(j) Special curriculum areas;
(k) Students' rights and responsibilities;
(l) Education agency relations;
(m) Alternative sources of Federal grants;
(n) Juvenile justice;
(o) Teachers training and inservice options;
(p) Needs assessment, program development, proposal writing; and
(q) Other training activities school boards deem appropriate and
applicable to their situation and which are approved by the Director.
25 CFR 39.93 Allowable expenditures.
Allowable expenditures under this subpart are limited to:
(a) Contracting with individuals and organizations for training
services,
(b) Membership fees in school boards' associations and purchase of
their materials and publications,
(c) Membership reimbursement for subsistence and travel expenses
incurred while participating in training activities; and
(d) Cooperative contracts with other school boards for joint training
or technical assistance activities.
25 CFR 39.94 Limitations on expenditures.
(a) No expenditure may be authorized except in accordance with a
decision of record by the school board and each payment shall be made
under written authorization of the board chairperson.
(b) Expenditures under this subpart may not be made for school board
members' stipends or honorariums associated with participation in
training activities. Payments for such may, however, come from the
school's operational budget, if so designated and approved in the
school's operational budget, if so designated and approved in the
school's local educational finance plan. The maximum amounts of such
payments shall be determined in accordance with the laws or regulations
of the tribe involved and shall be subject to approval by the Director.
In the absence of such tribal laws or regulations, such maximums shall
be determined by the Director in consultation with the school board.
Payments under this subpart may not be made to any employee of a school
served by the school board being trained or assisted.
25 CFR 39.95 Reporting of expenditures.
An accounting of all expenditures of school board training funds
shall be maintained as a supplement to each school's public accounting
records.
25 CFR 39.96 Provision for annual adjustment.
The allocation of $5,000 per school may be annually adjusted by the
Director.
25 CFR 39.97 Training for agency school board.
Provisions for training agency school board members, except as they
may also be members of local school boards, are not included in these
local school board training funds. If required, such provision shall be
incorporated in agency or area office educational administration
training plans and budgets.
25 CFR 39.97 Subpart H -- Student Transportation
25 CFR 39.100 Definitions.
As used in this subpart, the term:
(a) Basic transportation miles means the daily average of all bus
miles logged for round trip home-to-school transportation of day
students.
(b) Transported student means the average number of students
transported to school on a daily basis.
(c) School bus means a passenger vehicle, operated by an operator in
the employ of, or under contract to, a Bureau operated or funded school,
who is qualified to operate such a vehicle under State or Federal
regulations governing the transportation of students; which vehicle is
used to transport day students to and/or from home and the school.
25 CFR 39.101 Purpose and scope.
The purpose of this section is to provide funds to each school for
the round trip transportation of students between home and the school
site.
25 CFR 39.102 Allocation of transportation funds.
Transportation funds for FY 1980 shall be allocated to each school as
follows:
(a) Day students. Funds shall be allocated to each school which
provides daily transportation of students between the student's
residence and the school site by the following formula:
(1) 180 ($.85 per basic transportation mile + $.61 per transported
student).
(2) The allocation shall be based on the daily average of transported
students and basic transportation miles computed during the October and
November count periods.
(3) This formula shall not apply to any dormitory which provides
daily transportation between dormitory and the public school which the
dormitory student attends.
(b) Boarding school and dormitory students. Funds shall be allocated
to each boarding school and dormitory for the transportation of resident
students according to the following criteria:
(1) For each student whose home is more than 1 mile and no more than
100 miles from the boarding school or dormitory, the school shall
receive $3.20 per mile per student per year. The miles per student
shall be the shortest driving distance one way from the student's home
to the school site. This provision applies only to those students for
whom ground transportation is provided and for whom it is not necessary
to provide air transportation.
(2) For each student whose home is more than 100 and no more than 350
miles from the boarding school or dormitory, the school shall receive
$1.60 per mile per student per year. The miles per student shall be the
shortest driving distance one way from the student's home to the school
site. This provision applies only to those students for whom ground
transportation is provided and for whom it is not necessary to provide
air transportation.
(3) For each student whose home is more than 350 miles from the
boarding school or dormitory, the school shall receive $.48 per mile per
student per year. The miles per student shall be the shortest driving
distance one way from the student's home agency to the school site.
This provision applies only to those students for whom ground
transportation is provided and for whom it is not necessary to provide
air transportation.
(4) For each student whose home is more than 350 miles from the
boarding school or dormitory and for whom it is necessary to provide
airplane transportation, the school shall receive $.60 per mile per
student flown per year. The miles per student shall be the actual one
way air miles between the airport closest to the school site and the
closest to the student's home. Airplane transportation shall be
provided only when ground transportation is unavailable or not
cost-effective.
(5) For each student attending Mt. Edgecumbe Boarding School, Sitka,
Alaska, who requires airplane transportation, the school shall receive
$1.05 per mile per student flown per year. The miles per student shall
be the one way air miles between the Sitka, Alaska airport and the
airport nearest the student's home.
(6) At least 80% of the funds received by the school under 3, 4, and
5 above must be used for student travel between home and school.
25 CFR 39.103 Annual transportation formula adjustment.
The Director will review transportation allotment factors each year
and make changes in factors based on changes in transportation costs.
25 CFR 39.103 Subpart I -- Interim Maintenance and Minor Repair Fund
25 CFR 39.110 Establishment and funding of an Interim Maintenance and
Minor Repair Fund.
There is established in the Division of Facilities Management a
separate temporary fund entitled the Interim Maintenance and Minor
Repair Fund. The Assistant Secretary shall cause the distribution of an
amount of $1 million, under the FY 1980 Appropriation for the Bureau,
from budget activity 3500, ''General Management and Facilities
Operation'', to the direct use of schools, and shall create an
appropriate account or subaccount for the Interim Maintenance and Minor
Repair Fund and credit these funds thereto.
25 CFR 39.111 Conditions for distribution.
Funds from the Interim Maintenance and Minor Repair Fund shall be
distributed to Bureau operated and funded schools and shall be
separately earmarked in local school financial plans solely for
expenditure at the discretion of the school supervisor for cost of
school facility maintenance and minor repair. These funds shall be used
to meet immediate minor repair and maintenance needs.
25 CFR 39.112 Allocation.
(a) Interim Maintenance and Minor Repair funds shall be allocated to
all Bureau operated and contract schools based on the number of square
feet of floor space used for that school's educational program, for
student residence and for support facilities. Staff quarters shall be
specifically excluded from the computation.
(b) Square footage figures used in determining school allocations
shall be taken from the facilities inventory maintained by the Division
of Facilities Engineering.
(c) In those cases, such as contract schools, where square footage
figures are not now available, it shall be the responsibility of the
Bureau's Division of Facilities Engineering to correct the information.
(d) Schools in Alaska shall receive a 25% cost adjustment increase in
the computation of their allocation.
25 CFR 39.113 Use of funds.
Funds allocated under this provision for maintenance and minor repair
shall be used for no other purpose.
25 CFR 39.114 Limitations.
Nothing in this provision shall be interpreted as relieving the
Bureau branch of Facilities Management or its field offices of any
responsibility for continuing to provide maintenance and repair service
to schools through existing procedures.
25 CFR 39.114 Subpart J -- Administrative Cost Formula
Source: 56 FR 35795, July 26, 1991, unless otherwise noted.
25 CFR 39.120 Purpose and scope.
The purpose of this subpart is to provide funds at the agency and
area education offices for FY 1991 and future years for administration
of all Bureau of Indian Affairs education functions, including but not
limited to school operations, continuing education, early childhood
education, post-secondary education and Johnson-O'Malley Programs.
25 CFR 39.121 Definitions.
(a) Agency Education Office means a field office of the Office of
Indian Education Programs providing administrative direction and
supervision to one or more Bureau-operated schools as well as being
responsible for all other education functions serving tribes within that
agency's jurisdiction.
(b) Area Education Office means a field office of the Office of
Indian Education Programs responsible for all education functions
serving tribes not serviced by an agency education office an in some
cases providing administrative direction to one or more off-reservation
boarding schools not under an agency education office.
25 CFR 39.122 Allotment of education administrative funds.
The total annual budget for agencies/areas shall be allotted to the
Director and through him/her to agency and area education offices. This
total budget shall be distributed to the various agency and area
education offices as follows:
(a) Each agency or area education office as defined above shall
receive a base amount of $50,000 for basic administrative costs; and
(b) Each agency or area education office as defined above shall
receive an amount under these funds equal to two percent of the total
higher education, Johnson-O'Malley and adult education funds
administered by each office, except that the Navajo Agencies are
restricted to a maximum of $50,000 for administering the
Johnson-O'Malley and higher education programs; and
(c) Eighty percent of the remaining funds shall be distributed
proportionately based on the number of schools operated under the
jurisdiction of each agency or area education office, with
Bureau-operated schools counting as 1 and contract/grant schools
counting as 0.6; and
(d) The remaining twenty percent shall be distributed proportionately
based on the total weighted student units generated by all schools under
the jurisdiction of each agency or area education office.
25 CFR 39.123 Allotment exception for FY 1991.
For FY 1991 only, the Director may reserve an amount equal to no more
than one half of the funds received in FY 1990 by those offices to be
closed in FY 1991 to cover severance pay costs, lump sum leave payments
and relocation costs for those individuals affected by the closures.
Any balance uncommitted by March 31, 1991, shall be distributed in
accordance with the formula in 39.122.
25 CFR 39.123 Subpart K -- Pre-kindergarten Programs
25 CFR 39.130 Interim fiscal year 1980 and fiscal year 1981 funding for
pre-kindergarten programs previously funded by the Bureau.
Those schools having pre-kindergarten programs funded fully or in
part from Bureau education funds in fiscal year 1979 shall be funded
from Bureau education funds by the Director in fiscal year 1980 and
fiscal year 1981 at their fiscal year 1979 Bureau education funding
levels. The fiscal year 1979 pre-kindergarten Bureau funding amount for
each Bureau funded school shall be deducted from the school's fiscal
year 1979 Bureau Education Budget amount prior to application of the
phase-in provision detailed in 39.19.
25 CFR 39.131 Addition of pre-kindergarten as a weight factor to the
Indian School Equalization Formula in fiscal year 1982.
The Director, in consultation with the tribes and school boards,
shall determine appropriate weight factors needed to include
pre-kindergarten programs in the Indian School Equalization Formula in
fiscal year 1982. Based on a needs assessment, to be completed by
January 1, 1980, pre-kindergarten programs shall be included in the
Bureau's education request for fiscal year 1982.
25 CFR 39.131 Subpart L -- Contract School Operation and Maintenance Fund
25 CFR 39.140 Definitions.
Contract school operation and maintenance costs for fiscal year 1979
means the sum of costs for custodial salaries and fringe benefits,
related supplies and equipment and equipment repair, insurance, and
school operation utilities costs, where such costs are not paid by the
Division of Facilities Management or other noneducation Bureau sources.
25 CFR 39.141 Establishment of an interim fiscal year 1980 operation
and maintenance fund for contract schools.
There is established in the Division of Facilities Management a
separate fund entitled the Contract School Operation and Maintenance
Fund. The Secretary shall cause the distribution of an amount of $2.5
million, under the fiscal year 1980 appropriation for the Bureau, from
budget activity 3500. ''General Management and Facilities Operations'',
to the schools through this fund and shall create an appropriate account
or subaccount for the Contract School Operation and Maintenance Fund.
25 CFR 39.142 Distribution of funds.
(a) Each contract school shall receive in fiscal year 1980 a portion
of the Contract School Operation and Maintenance Fund determined by the
percentage share which that school's fiscal year 1979 operation and
maintenance cost represents in the total fiscal year 1979 operation and
maintenance cost for all such schools.
(b) To be eligible for these funds, a contract school shall submit a
detailed report of actual operation and maintenance costs for fiscal
year 1979 to the Director by November 23, 1979. These cost figures will
be subject to verification by the Director to assure their accuracy
prior to the allotment of any funds under this subpart.
(c) Any funds generated under this subpart shall be included in the
computation of the phase-in amount as set forth in 39.19 if
supplemental operation and maintenance funds were included in a school's
fiscal year 1979 3100 contract funds.
25 CFR 39.143 Future consideration of contract school operation and
maintenance funding.
The Assistant Secretary shall arrange for full funding for operation
and maintenance of contract schools by fiscal year 1981.
25 CFR 39.143 PART 40 -- ADMINISTRATION OF EDUCATIONAL LOANS, GRANTS
AND OTHER ASSISTANCE FOR HIGHER EDUCATION
Sec.
40.1 Appropriations for loans or grants.
40.2 Working scholarships.
40.3 Applications.
40.4 Security.
40.5 Repayments.
Authority: Sec. 11, 48 Stat. 986; 25 U.S.C. 471.
Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 40.1 Appropriations for loans or grants.
Funds appropriated by Congress for the education of Indians may be
used for making educational loans and grants to aid students of
one-fourth or more degree of Indian blood attending accredited
institutions of higher education or other accredited schools offering
vocational and technical training who reside within the exterior
boundaries of Indian reservations under the jurisdiction of the Bureau
of Indian Affairs or on trust or restricted lands under the jurisdiction
of the Bureau of Indian Affairs. Such educational loans and grants may
be made also to students of one-fourth or more degree of Indian blood
who reside near the reservation when a denial of such loans or grants
would have a direct effect upon Bureau programs within the reservation.
After students meeting these eligibility requirements are taken care of,
Indian students who do not meet the residency requirements but are
otherwise eligible may be considered.
(33 FR 9708, July 4, 1968. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 40.2 Working scholarships.
Working scholarships may be granted to Indians who wish to earn their
board and room by part-time work at Federal boarding schools that are
located near a college, trade, or vocational school.
25 CFR 40.3 Applications.
Applications for educational loans, grants, and working scholarships
shall be submitted through the superintendent or officer in charge of
the agency at which the applicant is enrolled in the manner prescribed
by the Commissioner.
25 CFR 40.4 Security.
If a borrower or cosigner has security to offer for an educational
loan it must be given in an amount adequate to protect the loan.
25 CFR 40.5 Repayments.
Repayment schedules for educational loans may provide not to exceed
two years for repayment for each year in school.
25 CFR 40.5 PART 41 -- GRANTS TO TRIBALLY CONTROLLED COMMUNITY COLLEGES AND NAVAJO COMMUNITY COLLEGE
25 CFR 40.5 Subpart A -- Tribally Controlled Community Colleges
Sec.
41.1 Purpose.
41.2 Scope.
41.3 Definitions.
41.4 Eligible recipients.
41.5 Eligible activities.
41.6 HHS participation.
41.7 Feasibility studies.
41.8 Grants.
41.9 Reports.
41.10 Technical assistance.
41.11 General provisions.
41.12 Annual budget.
41.13 Criminal penalities.
25 CFR 40.5 Subpart B -- Navajo Community College
41.20 Policy.
41.21 Scope.
41.22 Definitions.
41.23 Eligible activities.
41.24 Grants.
41.25 Reports.
41.26 Technical assistance.
41.27 General provisions.
41.28 Criminal penalties.
Authority: Secs. 114 and 203(a), Pub. L. 95-471, 25 U.S.C. 1815, 25
U.S.C. 640c-1(c).
Source: 44 FR 67042, Nov. 21, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 40.5 Subpart A -- Tribally Controlled Community Colleges
25 CFR 41.1 Purpose.
The policy of the Department of the Interior is to support and
encourage the establishment, operation, and improvement of tribally
controlled community colleges to ensure continued and expanded
educational opportunities for Indian students. The regulations in this
subpart prescribe procedures for providing financial and technical
assistance to this end under the Tribally Controlled Community College
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801
et seq.).
25 CFR 41.2 Scope.
The regulations in this subpart are applicable to the provision of
financial and technical assistance to Community Colleges under title I
of the Act. They do not apply to the provision of assistance to Navajo
Community College. Subpart B of this part applies to assistance to
Navajo Community College under title II of the Act.
25 CFR 41.3 Definitions.
As used in this subpart A:
(a) Academic Term means a semester, trimester, or other such period
(not less than six (6) weeks in duration) into which a community college
normally subdivides its academic year, but does not include a summer
term.
(b) Academic Year means a twelve month period established by a
community college and approved by the Director of Education as the
annual period for the operation of the college's education programs.
(c) The Act means the Tribally Controlled Community College
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et
seq.).
(d) Assistant Secretary means the Assistant Secretary for Indian
Affairs of the Department of the Interior, or his/her duly authorized
representative.
(e) Community College means an institution of higher education which
(1) is formally controlled or operated and managed by the governing body
of an Indian Tribe or by the governing bodies of two or more Indian
Tribes, or (2) is established or is otherwise sanctioned or chartered by
resolution, ordinance, or other official action (which is still in full
force and effect) of such governing body or bodies. However, for
purposes of this definition, only one such institution shall be
recognized with respect to any one Tribe. A Community College that
meets the requirements of this definition with respect to more than one
Tribe must meet such requirements with respect to at least one Tribe
that has no other currently formally controlled, operated and managed,
established, sanctioned, or chartered Community College.
(f) Director of Education means the Director of the Office of Indian
Education Programs of the Bureau of Indian Affairs, or his/her duly
authorized representative.
(g) Full Time Equivalent or FTE, means the number of Indian students
(1) enrolled full-time for an entire academic term at a community
college, calculated on the basis of registrations as in effect at the
conclusion of the sixth week of an academic term, plus (2) the full-time
equivalent of the number of other Indian students who are enrolled
part-time for an entire academic term at a community college (determined
on the basis of the quotient of the sum of credit hours for which all
such part-time students are registered during such academic term,
divided by twelve (12)), calculated on the basis of registrations as in
effect at the conclusion of the sixth week of an academic term. The
formula for calculating the Indian FTE for an academic term is expressed
mathematically as FTE=FT+PTCR/12 where FT is the number of full time
Indian students (those carrying 12 or more credit hours at the end of
the sixth week of the academic term) and PTCR is the number of credit
hours for which part-time Indian students are registered at the end of
the sixth week of an academic term.
(h) Indian means a person who is a member of an Indian Tribe and is
eligible to receive services from the Secretary of the Interior because
of his/her status as an Indian.
(i) Indian Tribe means an Indian tribe, band, nation, pueblo,
rancheria, or other organized group or community, including any Alaskan
Native Village or regional or village corporation as defined in or
established under the Alaska Native Claims Settlement Act, which is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.
(j) Institution of Higher Education as defined in Pub. L. 95-471
(incorporating in Part 1201 of the Higher Education Act of 1965), means
an educational institution in any State which
(1) Admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate,
(2) Provides an educational program for which it awards a bachelor's
degree or provides not less than a two-year program which is acceptable
for full credit toward such a degree,
(3) Is a public or other nonprofit institution, and
(4) Is accredited by a nationally recognized accrediting agency or
association or, if not so accredited,
(A) Is an institution with respect to which the Commissioner of
Education has determined that there is satisfactory assurance,
considering the resources available to the institution, the period of
time, if any, during which it has operated, the effort it is making to
meet accreditation standards and the purpose for which this
determination is being made, that the institution will meet the
accreditation standards of such an agency or association within a
reasonable time, or
(B) Is an institution whose credits are accepted, on transfer, by not
less than three institutions which are so accredited, for credit on the
same basis as if transferred from an institution so accredited.
Such term also includes any school which provides not less than a
one-year program of training to prepare students for gainful employment
in a recognized occupation and which meets the provisions of clauses
(1), (2), (3), and (4). Such term also includes a public or nonprofit
private educational institution in any State which, in lieu of the
requirement in clause (1), admits as regular students persons who are
beyond the age of compulsory school attendance in the State in which the
institution is located and who have the ability to benefit from the
training offered by the institution.
(k) National Indian Organization means any organization of Indians,
found by the Director of Education to be nationally based, representing
a substantial Indian constituency, and expert in the field of Indian
education. Notice of such findings shall be published in the Federal
Register with an opportunity for comment from the public and no such
finding shall be effective earlier than 30 days after publication.
(l) Operating expenses of education programs means the obligations
and expenditures of a community college for post-secondary activities,
including administration, instruction, attendance, health and other
student services, operation, maintenance and repair of plant, fixed
charges, and other related expenses, but not including expenditures for
the acquisition or construction of academic facilities. (The term
academic facilities means structures suitable for use as classrooms,
laboratories, libraries, and related facilities necessary or appropriate
for instruction of students, or for research, or for administration of
the educational or research programs of an institution of higher
education or as dormitories or student services buildings, and
maintenance, storage, support, or utility facilities essential to
operation of the foregoing facilities.)
(m) Part-time means registered for less than twelve (12) credit hours
for an academic term; full-time means registered for twelve (12) or
more credit hours for an academic term.
(n) Unused portion of received funds means the amount of financial
assistance provided under this subpart to a Community College for an
academic year which has not been obligated or expended by the Community
College by July 1 of that academic year.
25 CFR 41.4 Eligible recipients.
Financial assistance under this subpart shall be available only to a
Community College which:
(a) Is governed by a board of directors, regents, or trustees, a
majority of whom are Indians;
(b) Demonstrates its adherence to stated goals, a philosophy, or a
plan of operation which is directed to meet the needs of Indians, and
has formally adopted, in writing, such goals, philosophy, or plan of
operation, which may be in the form of a constitution, by-laws, or
policy statement of the Community College;
(c) If in operation for more than one year, has students a majority
of whom are Indian; and
(d) Upon completion of a feasibility study, receives a positive
determination, and;
(e) Is not in violation of 41.11 of this subpart.
25 CFR 41.5 Eligible activities.
Financial assistance under this subpart shall be available to defray
only the operating expenses of education programs of Community Colleges.
Financial assistance under this subpart shall not be used for religious
worship or sectarian instruction, but nothing in this subpart shall be
construed as barring instruction in comparative religions or cultures or
in languages of Indian tribes.
25 CFR 41.6 HHS participation.
The Assistant Secretary for Indian Affairs is authorized to enter
into an agreement with the Assistant Secretary for Education, Department
of Health and Human Services, and to revise such agreement as necessary,
to assist the Director of Education in the development of plans,
procedures, and criteria for feasibility studies under this subpart, and
to provide the Director with technical assistance in conducting such
feasibility studies, including determinations as to the reasonable
number of students required to support a Community College.
(44 FR 67042, Nov. 21, 1979. Redesignated at 47 FR 13327, Mar. 30,
1982; 48 FR 13414, Mar. 31, 1983)
25 CFR 41.7 Feasibility studies.
(a) Grants under 41.8 of this subpart may be made to a Community
College only after a positive determination of feasibility as provided
in this section.
(b) Within thirty (30) days of receiving a resolution or other duly
authorized request from the governing body of one or more Indian Tribes,
the Director of Education shall initiate a feasibility study to
determine whether there is justification to encourage and maintain a
Community College for such tribe or tribes. The feasibility study shall
give consideration to the following factors:
(1) Financial feasibility based upon potential enrollment;
(2) Evidence of low tribal levels of tribal matriculation in and
graduation from postsecondary educational institutions;
(3) Tribal, linguistics, or cultural differences;
(4) Isolation;
(5) Presence of alternate education sources;
(6) Proposed curriculum;
(7) The benefits of continued and expanded educational opportunities
for Indian students.
(c) The Director of Education will issue detailed guidelines for
conducting and analyzing the feasibility studies.
(d) Feasibility studies under this section shall be conducted in
consultation with the tribal governing body or bodies involved or their
designated representatives. Each feasibility study shall be completed
and filed by the Director of Education within sixty (60) days after the
feasibility study has been initiated. The study shall be filed with (1)
the Assistant Secretary, (2) the tribal governing body or bodies
requesting the studies, and (3) with the board of directors, regents, or
trustees of the Community College, if already established.
(e) In the case of any feasibility study which results in a negative
determination by the Director of Education, a Tribe requesting the study
may within thirty (30) days of receipt of the study or of notice of such
determination file a notice of appeal with the Assistant Secretary.
Following the timely filing of a Tribe's notice of appeal, the Tribe and
Community College shall have a right to a formal review of the
feasibility study, including a hearing upon reasonable notice within
sixty (60) days before the Assistant Secretary (or his/her designee,
other than the Director of Education or any federal employee under the
Director's supervision). At the hearing, the appealing Tribe or the
Community College (or both) may present additional evidence or arguments
to justify feasibility. Within thirty (30) days of the hearing, the
Assistant Secretary shall issue a written ruling either confirming,
modifying, or reversing the original determination. The ruling, which
shall be final for the Department, shall be mailed or otherwise
delivered to the appealing Tribe and the Community College within one
week of its issuance. In any case where the original negative
determination is not reversed, the Assistant Secretary's ruling shall
specify the grounds for the decision and state the manner in which the
determination related to each of the factors specified.
(f) A negative determination shall not prevent a Tribe from
requesting another feasibility study, but no more than one feasibility
study shall be requested for any given Community College per year.
25 CFR 41.8 Grants.
(a) Each Community College which has received a positive feasibility
study determination under 41.7 of this subpart shall be entitled to
apply for financial assistance under this subpart.
(b) Except with respect to applications for grants for the 1979-1980
academic year, each Community College shall make an application to the
Director of Education before January 31, of the year preceding the
academic year for which financial assistance is requested. Each
application must contain the following information:
(1) The name and address of the Community College and the names of
the members of the governing board and the number of its members who are
Indian;
(2) A statement that the Community College has received a positive
feasibility determination and the date thereof;
(3) A written statement of the goals, philosophy, or proposed plan of
operation sufficient to demonstrate that its education program or
proposed program is designed to meet the needs of Indians;
(4) In the case of a Community College which has been in operation
for more than one year, a statement of the total number of FTE Indian
students and the total number of all FTE students;
(5) If the Community College has not yet begun operations, a
statement of expected enrollment, including the total number of FTE
students and the number of FTE Indian students;
(6) The name and address of the Indian Tribe or Tribes which control
or operate and manage, or have established, sanctioned, or chartered the
Community College, and a statement as to which of those Tribes have not
done so with respect to any other Community College;
(7) A curriculum, which may be in the form of a college catalog or
like publication;
(8) A proposed budget, showing total expected operating expenses of
education programs and expected revenues from all sources for the
academic year to which the information applies;
(9) An assurance that the Community College will not deny admission
to any Indian student because that student is not a member of a specific
tribe or because such student is a member of a specific tribe, and will
comply with the requirements set forth in 41.11 of this subpart
together with any request and justification for a specific waiver of any
requirement of 25 CFR part 276 which the Community College believes to
be inappropriate;
(10) Certification by the chief executive officer of the Community
College that the information on the application is complete and correct
and that the application has been filed with the governing body or
bodies of the Tribe or Tribes which control or have sanctioned or
chartered it.
(c)(1) Within thirty (30) days of receiving an application required
under paragraph (b) of this section, the Director of Education shall
review the application submitted by the Community College and any
comments with respect thereto filed by the Tribe(s) or by any national
Indian organization(s) whose assistance has been requested by the
Community College, and make a grant award in an amount determined under
paragraph (d) of this section to the Community College if the
application qualifies the Community College to receive a grant.
(2) In the case of any Community College whose application is not
approved, the Director shall promptly send a notice of such action to
the Community College. Such notice shall include a statement of the
specific reasons for not approving the application and a statement
advising the College of its right within thirty (30) days to amend or
supplement the application on file to rectify the defect.
(3) Final disapproval of a grant application by the Director after
the thirty day period referred to in paragraph (c)(2) of this section,
or a failure of the Director of Education to approve an application
within thirty (30) days of its receipt may be appealed by a Community
College in the same manner as provided in paragraphs (d) and (f) of
41.7.
(4) A Grant award under an approved application shall be evidenced by
a grant agreement, signed by the Director of Education, incorporating
the application and the provisions required by 41.11.
(d)(1) In fiscal year 1980, each Community College which qualifies
for a grant will receive a grant for academic year 1979-80; thereafter
each Community College which qualifies for a grant shall receive a grant
for the academic year commencing after the date of approval of its
application. Except as provided in paragraph (d)(3) of this section
grants shall be in an amount equal to $4,000 multiplied by the number of
FTE Indian students in attendance at such college during each academic
term divided by the number of academic terms in the academic year,
except that no such grant shall exceed the annual operating expenses of
the education programs provided by the Community College. The
mathematical formula for calculating the base grant is BG (Base Grant)=
where FTE is the Indian FTE for each of the academic terms during the
academic year calculated in conformity with 41.3(g) of this subpart and
N is the number of academic terms in the academic year.
(2) For the first Federal fiscal year for which funds are
appropriated for grants under this subpart, not less than eight (8) nor
more than fifteen (15) grants shall be approved; priority in awarding
such grants shall be given to Community Colleges which are operating on
October 17, 1978, and which have a history of service to the Indian
people. (If more than fifteen (15) Community Colleges meeting these two
(2) conditions submit applications for the first fiscal year, a further
priority for awarding grants among them shall be given to those who
appear to be in the best position to fulfill the purpose of the Act and
to those whose continued existence would be threatened if they did not
receive such a grant).
(3) All grants under this section shall be subject to the
availability of appropriations and the amount thereof shall be ratably
reduced for all Community Colleges if the sums appropriated for any
fiscal year for financial assistance under this subpart are not
sufficient to pay the full amounts to which the eligible Community
Colleges are otherwise entitled under paragraph (d)(1) of this section.
(e) The Director of Education shall authorize payments to each such
Community College in advance installments by letter of credit or
Treasury check in an amount equal to fifty percent (50%) of the grant
amount available for allotment to such Community College for such
academic year under paragraph (d) of this section on or before October
1st of such College's academic year (except for 1979-80) or the first
day on which appropriations for the fiscal year beginning on such date
are available for obligation by BIA whichever occurs later, based on the
number of FTE Indian students calculated on the basis of registrations
as in effect at the conclusion of the sixth week of the final academic
term of the preceding academic year. On or before January 1st (or such
other date that is the first day of the fifth month) of such College's
academic year, payments shall be made in the form of advance
installments to each Community College in an amount equal to
seventy-five percent (75%) of the grant amount available for allotment
to such Community College for such academic year under paragraph (d) of
this section, calculated on the basis of registrations at the conclusion
of sixth week of the academic year, less the amount previously advanced
for such academic year. On or before July 1st (or such other date that
is the first day of the eleventh month) of each such academic year the
balance of the grant amount to which each College is entitled under
paragraph (d) of this section shall be paid to such College. In the
event that additional sums are appropriated to which such Community
Colleges are entitled under section 110(a) of the Act and paragraph (d)
of this section, these amounts shall be included in such final payments.
(f) If with respect to any academic year the amounts of financial
assistance hereunder have been ratably reduced as provided in paragraph
(d)(3) of this section and additional funds have not been appropriated
to pay the full amount of such reductions on or before June 1st of such
year, the Director of Education shall notify each Community College of
such fact in writing, and each Community College shall report in writing
to the Director of Education on or before July 1st of such year the
amount of unused portion of received funds. The total of such reported
unused portions of received funds shall be reallocated by the Director
of Education in proportion to the amount of financial assistance to
which each Community College is entitled under paragraph (d) but which
has not been provided due to the ratable reductions provided for
therein, (except that no Community College shall receive more than the
total annual cost of the education programs provided by such College)
and payments shall be made reflecting such reallocations on or before
August 1st of such academic year.
(g) If the Director of Education determines that a Community College
has received, through mistake or fraud, payments of financial assistance
under this subpart to which it was not entitled, the Director shall
promptly notify the college, which may appeal the Director's
determination under the procedures set forth in 41.7, and adjust the
amount of payments to the college under this subpart for the same or
subsequent academic years to compensate for such overpayments or
otherwise attempt to recover such overpayments.
(h) Eligibility for grants under this subpart shall not, by itself,
bar a Community College from qualifying for or receiving financial
assistance under any other Federal program for which it may qualify.
25 CFR 41.9 Reports.
Each Community College receiving financial assistance under this
subpart shall provide to the Director of Education on or before December
1st of each year a report which shall include an accounting of the
amounts and purposes for which such financial assistance was expended
during the preceding academic year; the annual cost of education
programs of the Community College from all sources for such academic
year; and a final report of the performance based upon the criteria set
forth in the Community College's stated goals, philosophy or plan of
operation. Upon reasonable cause, the Director of Education may extend
the period for submitting the annual report. Each Community College
shall in addition report to the Director of Education its FTE Indian
student enrollment for each academic term of the academic year within
three weeks of the date such FTE calculation is made.
25 CFR 41.10 Technical assistance.
The Director of Education shall furnish technical assistance either
directly or through contract to any Community College requesting it.
Such assistance shall be initiated within thirty (30) days of a
Community College's request in writing. In any case, where the type and
source of technical assistance is specified in the request, the
Director, to the extent possible or feasible, shall provide the type of
technical assistance through the source so specified. Technical
assistance may include, but is not limited to, consulting services for
the development of programs, plans, and feasibility studies and
accounting, and other technical advice. In awarding of contracts for
technical assistance, preference shall be given to an organization
designated by the Community College to be assisted. Denials of requests
for technical assistance under this section shall be made in writing and
sent to the applicant within thirty (30) days of the request, together
with a statement of the reason for denial. An appeal under this section
may be undertaken in the same manner as in the case of negative
determinations of feasibility under 41.7 of his subpart.
25 CFR 41.11 General provisions.
The general requirements for grant administration in this section are
applicable to all grants provided under this subpart to Community
Colleges:
(a) Services or assistance provided to Indians by Community Colleges
aided under this subpart shall be provided in a fair and uniform manner,
and admission to any such Community College shall not be denied to any
Indian student because such individual is not a member of a specific
Indian tribe or because such individual is a member of a specific Indian
tribe.
(b) Except as may be otherwise provided in this subpart, any
Community College receiving financial assistance under this subpart
shall comply with part 276 of this title, subject to any express waiver
of specific inappropriate provisions of part 276 that may be granted by
the Assistant Secretary after request and justification by the Community
College.
(c) A Community College shall have the right to appeal any adverse
decision of the Director of Education under a grant agreement to the
Assistant Secretary by filing written notice of appeal with the
Assistant Secretary within thirty (30) days after the adverse decision.
Within thirty (30) days after receiving notice of appeal, the Assistant
Secretary shall conduct a formal hearing at which time the College may
present evidence and argument to support its appeal. Within thirty (30)
days of the hearing, the Assistant Secretary shall issue a written
ruling on the appeal confirming, modifying, or reversing the Director of
Education's decision, the Assistant Secretary shall state in detail the
basis for his/her ruling. The ruling of the Assistant Secretary on an
appeal shall be final for the Department of the Interior.
25 CFR 41.12 Annual budget.
Appropriations under title I of the Tribally Controlled Community
College Assistance Act of 1978 shall be separately identified in the
Bureau of Indian Affairs Budget Justification. Funds appropriated for
grants under this subpart shall not be commingled with other funds
expended by the Bureau of Indian Affairs.
25 CFR 41.13 Criminal penalties.
Persons submitting or causing to be submitted to the Bureau any false
information in connection with any application, report, or other
document, upon which the provision of Federal financial assistance or
any other payment of Federal funds is based, may be subject to criminal
prosecution under provisions such as sections 287, 371, or 1001 of title
18, U.S. Code.
25 CFR 41.13 Subpart B -- Navajo Community College
25 CFR 41.20 Policy.
It is the policy of this Department to support and encourage the
establishment, operation, and improvement of tribally controlled
community colleges in order to ensure continued and expanded educational
opportunities for Indian students. The regulations in this subpart
prescribe procedures for providing financial and technical assistance to
this end for the Navajo Community College under the Navajo Community
College Act, as amended (25 U.S.C. 640a-c).
25 CFR 41.21 Scope.
The regulations in this subpart are applicable to the provision of
financial and technical assistance to Navajo Community College pursuant
to the Navajo Community College Act of December 15, 1971 (Pub. L.
92-189, 85 Stat. 646, 25 U.S.C. 640a-c) as amended by the Navajo
Community College Assistance Act of 1978, Title II of the Tribally
Controlled Community College Assistance Act of 1978 (Pub. L. 95-471, 92
Stat. 1325, 1329, 25 U.S.C. 640c). Regulations applicable to Tribally
Controlled Community Colleges other than Navajo Community College are
found in subpart A of this part 41.
25 CFR 41.22 Definitions.
As used in this subpart:
(a) Academic Term means a semester, trimester, or other such period
(not less than six (6) weeks in duration) into which the college
normally subdivides its academic year, but does not include a summer
term.
(b) Academic Year means a twelve month period established by the
college and approved by the Director of Education as the annual period
for the operation of the college's education programs.
(c) The Act means the Navajo Community College Act of December 15,
1971 (Pub. L. 92-189, 85 Stat. 646) as amended by the Navajo Community
College Assistance Act of 1978, (Pub. L. 95-471, title II, 92 Stat.
1329, 25 U.S.C. 640a et seq.).
(d) Assistant Secretary means the Assistant Secretary for Indian
Affairs of the Department of the Interior or his/her duly authorized
representative.
(e) College means the institution known as Navajo Community College
established by the Navajo Tribe.
(f) Director of Education means the Director of the Office of Indian
Education Programs of the Bureau of Indian Affairs, or his/her duly
authorized representative.
(g) Full Time Equivalent or FTE means the number of Indian students
(1) enrolled full-time for an entire academic term at the College,
calculated on the basis of registrations as in effect at the conclusion
of the sixth week of an academic term, plus (2) the full-time equivalent
of the number of other Indian students who are enrolled part-time for an
entire academic term at the College (determined on the basis of the
quotient of the sum of credit hours for which all such part-time
students are registered during such academic term divided by (12)),
calculated on the basis of registrations as in effect at the conclusion
of the sixth week of an academic term. The formula for calculating the
Indian FTE for an academic term is expressed mathematically as
FTE=FT+PTCR/12 where FT is the number of full time Indian students
(those carrying 12 or more credit hours at the end of the sixth week of
the academic term) and PTCR is the number of credit hours for which
part-time Indian students are registered at the end of the sixth week of
an academic term.
(h) Indian means a person who is a member of an Indian tribe and is
eligible to receive services from the Secretary of the Interior because
of his/her status as an Indian.
(i) Indian Tribe means an Indian tribe, band, nation, pueblo,
rancheria, or other organized group or community, including any Alaskan
Native Village or Regional or Village Corporation as defined in or
established under the Alaska Native Claims Settlement Act, which is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.
(j) Operating and Maintenance Expenses of Education Programs means
the obligation and expenditures by the College for post-secondary
education activities including administration, instruction, attendance,
health and other student services, operation, maintenance and repair of
plant, and fixed charges, and other related expenses, but not including
obligations or expenditures for the acquisition or construction of
academic facilities (as defined in 41.3(1) of subpart A).
25 CFR 41.23 Eligible activities.
Financial assistance under this subpart shall be available to defray
only the operating and maintenance expenses of education programs of the
College. Financial assistance under this subpart shall not be used for
religious worship or sectarian instruction, but nothing in this subpart
shall be construed as barring instruction in comparative religions or
cultures or in languages of Indian tribes.
25 CFR 41.24 Grants.
(a) Navajo Community College is entitled to annual grants for
operation and maintenance of the College in amounts based upon the
number of Full-Time Equivalent Indian students in attendance.
(b) Annually, in the manner and within the deadline established by
the Director of Education, the Navajo Community College shall submit an
application in the form of a statement of its FTE enrollment (total and
Indian) for the next academic year. The statement shall include a
description of the College's curriculum, which may be in the form of a
College catalog or like publication, and a proposed budget showing total
expected operating expenses of educational programs and expected revenue
from all sources for the academic year for which the information
applies. The statement shall be certified by the chief executive
officer of the College and shall certify that a copy of that statement
has been submitted to the Navajo Tribe.
(c) Annual budget request for the College shall be sparately
identified in the Bureau of Indian Affairs Budget Justifications. Funds
appropriated for grants under this subpart shall not be commingled with
other funds appropriations historically expended by the Bureau of Indian
Affairs for programs and projects normally provided on the Navajo
Reservation for Navajo beneficiaries.
(d) Within thirty (30) days of submission of the statement required
under paragraph (b) of this section, the Director of Education shall
make a grant award to the College in an amount determined under
paragraph (e) of this section. The grant award shall be evidenced by a
grant agreement signed by the Director of Education, incorporating the
grant application and including the provisions required by 41.27 of
this subpart.
(e) The College shall be eligible to receive a grant for the fiscal
year beginning October 1, 1979, and for each succeeding year, in an
amount equal to $4,000 multiplied by the number of FTE Indian students
in attendance at the College during each academic term divided by the
number of academic terms in the academic year, except that no such grant
shall exceed the annual operating expenses of the education programs
provided by the College. The mathematical formula for calculating the
base grant is BG (Base Grant)=
where FTE is the Indian FTE for each of the academic terms during the
academic year calculated in conformity with 41.22(g) of this subpart
and N is the number of academic terms in the academic year. The amount
and payment of such grants shall be subject to the availability of
annual appropriations.
(f) The Director of Education shall authorize payments to the College
in advance installments by letter of credit or Treasury check in an
amount equal to fifty percent (50%) of the grant amount available for
allotment to the College for such academic year under paragraph (e) of
this section on or before October 1st of such academic year (except
1979-80) or the first day on which appropriations for the fiscal year
beginning on such date are available for obligation by BIA, whichever
occurs later, based on the number of FTE Indian students calculated on
the basis of registrations as in effect at the conclusion of the sixth
week of the final academic term of the preceding year. On or before
January 1st (or such other date that is the first day of the fifth
month) of such academic year, payment shall be made in the form of such
advance installments to the College in an amount equal to seventy-five
percent (75%) of the grant amount available for allotment to the College
for such academic year under paragraph (e) of this section, calculated
on the basis of registrations as in effect at the conclusion of the
sixth week of the academic year, less the amount previously advanced for
such academic year. On or before July 1st (or such other date that is
the first day of the eleventh month) of such academic year, the balance
of the grant amount to which the College is entitled under paragraph (e)
of this section shall be paid to the College. In the event that
additional sums are appropriated for the benefit of the College, these
sums shall be included in the final payment.
(g) Overpayments of grants under this subpart may be recovered in the
manner provided by 41.8(g) of Subpart A.
(h) Payments to the Navajo Community College under this subpart shall
not disqualify the College from applying for or receiving grants or
contracts under any other Federal programs for which it may qualify.
25 CFR 41.25 Reports.
The Navajo Community College shall provide the Director of Education
on or before September 1st of each year a report which shall include an
accounting of the amounts and purposes for which financial assistance
under this subpart was expended during the preceding academic year, the
annual cost of the education programs of the College from all sources
for such academic year, and a final report of the performance based upon
the criteria set forth in the College's stated goals, philosophy or plan
of operation. Upon reasonable cause, the Director of Education may
extend the period for submitting the annual report. The college shall
in addition report to the Director of Education its FTE Indian Student
enrollment for each academic term of the academic year within three
weeks of the date such FTE calculation is made.
25 CFR 41.26 Technical assistance.
The Director of Education shall furnish technical assistance, either
directly or through contract, to the College when requested in writing.
Such assistance shall be initiated within thirty (30) days of the
College's request. In any case in which the form and source of
technical assistance is specified in the request, the Director of
Education shall to the extent possible or feasible provide technical
assistance in the form requested and through the source so specified.
Technical assistance may include, but is not limited to, consulting
services in the development of annual statements and reports required
under this subpart and accounting, and other technical advice and
assistance.
25 CFR 41.27 General provisions.
The general requirements for grant administration in this section are
applicable to all grants provided under this subpart to the Navajo
Community College.
(a) Services or assistance provided to Indians by the College with
the financial assistance provided under this subpart shall be provided
in a fair and uniform manner, and admission to the College shall not be
denied any Indian student because such individual is not a member of a
specific Indian tribe or because such individual is a member of a
specific Indian tribe.
(b) Except as may be otherwise provided in this subpart, the College
shall comply with part 276 of this Title, subject to express waiver of
specific inappropriate provisions of part 276 that may be granted, after
request and justification by the College by the Assistant Secretary.
(c) In addition to any other right the college may have under this
subpart, the College shall have the right to appeal any adverse decision
of the Director of Education under a grant agreement to the Assistant
Secretary by filing written notice of appeal with the Assistant
Secretary within thirty (30) days of the adverse decision. Within
thirty (30) days after receiving notice of appeal, the Assistant
Secretary shall conduct a formal hearing at which time the College may
present evidence and argument to support its appeal. Within thirty (30)
days of the hearing, the Assistant Secretary shall issue a written
ruling on the appeal confirming, modifying or reversing the decision of
the Director of Education. In the case of a ruling not reversing the
Director of Education's decision, the Assistant Secretary shall state in
detail the basis for his/her ruling. The ruling of the Assistant
Secretary on an appeal shall be final for the Department of the
Interior.
25 CFR 41.28 Criminal penalties.
Persons submitting or causing to be submitted to the Bureau any false
information in connection with any application, report, or other
document, upon which the provision of the Federal financial assistance,
or any other payment of Federal funds, is based, may be subject to
criminal prosecution under provisions such as sections 287, 371, or 1001
of Title 18, U.S. Code.
25 CFR 41.28 PART 42 -- STUDENT RIGHTS AND DUE PROCESS PROCEDURES
Sec.
42.1 Purpose.
42.2 Application to Bureau schools.
42.3 Rights of the individual student.
42.4 Due process.
42.5 Application to schools under Bureau contract.
Authority: 5 U.S.C. 301.
Source: 39 FR 32741, Sept. 11, 1974, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 42.1 Purpose.
The regulations in this part govern establishing programs of student
rights and due process procedures in Bureau of Indian Affairs schools
and in schools that are operating under contract with the Bureau of
Indian Affairs.
25 CFR 42.2 Application to Bureau schools.
All Bureau of Indian Affairs schools shall be governed by the
regulations set forth in this part and said regulations shall be
expressly included as a part of the local school regulations of each
Bureau of Indian Affairs school. Upon admission, all students of Bureau
of Indian Affairs schools shall be given a copy of the school
regulations governing the conduct of students and shall be notified of
any amendments thereto.
25 CFR 42.3 Rights of the individual student.
Individual students at Bureau of Indian Affairs schools have, and
shall be accorded, the following rights:
(a) The right to an education.
(b) The right to be free from unreasonable search and seizure of
their person and property, to a reasonable degree of privacy, and to a
safe and secure environment.
(c) The right to make his or her own decisions where applicable.
(d) The right to freedom of religion and culture.
(e) The right to freedom of speech and expression, including symbolic
expression, such as display of buttons, posters, choice of dress, and
length of hair, so long as the symbolic expression does not unreasonably
and in fact disrupt the educational process or endanger the health and
safety of the student or others.
(f) The right to freedom of the press, except where material in
student publications is libelous, slanderous, or obscene.
(g) The right to peaceably assemble and to petition the redress of
grievances.
(h) The right to freedom from discrimination.
(i) The right to due process. Every student is entitled to due
process in every instance of disciplinary action for alleged violation
of school regulations for which the student may be subjected to
penalties of suspension, expulsion, or transfer.
25 CFR 42.4 Due process.
Due process shall include:
(a) Written notice of charges within a reasonable time prior to a
hearing. Notice of the charges shall include reference to the
regulation allegedly violated, the facts alleged to constitute the
violation, and notice of access to all statements of persons relating to
the charge and to those parts of the student's school record which will
be considered in rendering a disciplinary decision.
(b) A fair and impartial hearing prior to the imposition of
disciplinary action absent the actual existence of an emergency
situation seriously and immediately endangering the health or safety of
the student or others. In an emergency situation the official may
impose disciplinary action not to exceed a temporary suspension, but
shall immediately thereafter report in writing the facts (not
conclusions) giving rise to the emergency and shall afford the student a
hearing which fully comports with due process, as set forth herein, as
soon as practicable thereafter.
(c) The right to have present at the hearing the student's parent(s)
or guardian(s) (or their designee) and to be represented by lay or legal
counsel of the student's choice. Private attorney's fees are to be
borne by the student.
(d) The right to produce, and have produced, witnesses on the
student's behalf and to confront and examine all witnesses.
(e) The right to a record of hearings of disciplinary actions,
including written findings of fact and conclusions in all cases of
disciplinary action.
(f) The right to administrative review and appeal.
(g) The student shall not be compelled to testify against himself.
(h) The right to have allegations of misconduct and information
pertaining thereto expunged from the student's school record in the
event the student is found not guilty of the charges.
25 CFR 42.5 Application to schools under Bureau contract.
Non-Bureau of Indian Affairs schools which are funded under contract
with the Bureau of Indian Affairs must also recognize these student
rights.
25 CFR 42.5 PART 43 -- MAINTENANCE AND CONTROL OF STUDENT RECORDS IN
BUREAU SCHOOLS
Sec.
43.1 Purpose and scope.
43.2 Definitions.
43.3 Student rights.
43.4 Annual notification of rights.
43.5 Access to records.
43.6 Limitations on access.
43.7 Access rights.
43.8 Destruction of records.
43.9 Procedures for granting access.
43.10 Right to challenge.
43.11 Informal proceedings.
43.12 Right to a hearing.
43.13 Right of appeal.
43.14 Consent.
43.15 Content of consent.
43.16 Copy to be provided to parents or eligible students.
43.17 Release of information for health or safety emergencies.
43.18 Record of access.
43.19 Transfer of information by third parties.
43.20 Directory information.
43.21 Standards for collection and maintenance of student records.
43.22 Assuring integrity of records.
43.23 Conduct of employees.
Authority: 35 Stat. 72 (25 U.S.C. 295); Pub. L. 93-579, 88 Stat.
1896; Sec. 438, Pub. L. 93-380, as amended; Pub. L. 94-142.
Source: 43 FR 52024, Nov. 8, 1978, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 43.1 Purpose and scope.
This part contains the regulations of the Bureau of Indian Affairs,
U.S. Department of the Interior, governing the maintenance, control, and
accessibility of student records. This part will apply to all
educational institutions under the jurisdiction of the Bureau of Indian
Affairs, whether operated under contract or otherwise.
25 CFR 43.2 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary -- Indian
Affairs, Department of the Interior.
(b) Educational institution means any institution operated under the
jurisdiction of the Bureau of Indian Affairs either directly or by
contract, including, but not limited to, schools or dormitories from
which Indian students attend public schools.
(c) Eligible student means a student who has become 18 years of age
or is attending an institution of post-secondary education. When a
student becomes an eligible student, the permission required of and the
rights given to the parents of the student shall thereafter only be
required of and given to the student.
(d) Parent means a natural parent, an adoptive parent, the legal
guardian, or a legal custodian of a student. (Where the natural parents
are unavailable, a required written parental consent may be obtained
from the person who has assumed custody of the student.) For purposes of
the Education of All Handicapped Children Act, the term parent also
includes a surrogate as referred to in 20 U.S.C. 1415(b)(1)(B).
(e) Student records means those records, files, documents, and other
materials which contain information directly related to a student and
which are maintained by an educational institution, or by a person
acting for that institution. The term does not include:
(1) Records of any educational personnel which are in the sole
possession of the maker and which are not accessible or revealed to any
other person except a substitute.
(2) Records made and maintained in the normal course of business
which relate exclusively to persons who are employed in an educational
institution but do not attend that institution.
(3) Directory information as given in 43.20.
(4) Records on a student who is 18 years of age or older, or is
attending an institution of post-secondary education, which are made or
maintained by a physician, psychiatrist, psychologist, or other
recognized professional or paraprofessional acting in his professional
or paraprofessional capacity, or assisting in that capacity, and which
are made, maintained, or used only in connection with the provision of
treatment to the student, and are not available to anyone other than
persons providing such treatment, except that such records can be
personally reviewed by a physician or other appropriate professional of
the student's choice.
25 CFR 43.3 Student rights.
The regulations in this part do not prevent educational institutions
from giving noneligible students rights similar to those given to
parents and eligible students. Educational institutions may do so at
their discretion.
25 CFR 43.4 Annual notification of rights.
(a) Each educational institution to which this part applies and which
maintains records on students shall inform parents or eligible students
of the rights given them by this part.
(b) In meeting the requirement in paragraph (a) of this section the
educational institution shall give notice to parents and eligible
students at least annually of the following:
(1) The types of education records and information contained in them
which are directly related to students and maintained by the
institution.
(2) The name and position of the official responsible for maintaining
each type of record, the persons who have access to those records, and
the purpose for which they have access.
(3) The policies of the institution for reviewing and expunging those
records.
(4) The procedures established by the institution under 43.5.
(5) The procedures for challenging the content of education records
including those in 43.10.
(6) The cost, if any, which will be charged to the parent or eligible
student for reproducing copies of records under 43.5.
(7) The categories of information which the institution has
designated as ''directory information'' under 43.20.
(c) The notice given to a parent or eligible student under this
section shall be in a language considered by the institution to be
understandable by the parent or eligible student.
25 CFR 43.5 Access to records.
Educational institutions shall give parents of students or eligible
students, who are or have been in attendance at the institutions, access
to student records, except as stated in 43.6.
25 CFR 43.6 Limitations on access.
Educational institutions are not required to make available to
students the following materials:
(a) Financial records of the parents of the student or any
information contained in those records.
(b) Confidential letters and statements of recommendations, which
were placed in any student's record prior to January 1, 1975, and which
are not used for purposes other than those for which they were
specifically intended.
(c) Those records listed in 43.2(e) which are exempt from the
definition of student records.
25 CFR 43.7 Access rights.
The right of access specified in 43.5 shall include:
(a) The right to obtain a list of the types of student records which
are maintained by the institution.
(b) The right to inspect and review the content of those records.
(c) The right to obtain copies of those records, the cost, if any,
not to exceed the actual cost to the educational institution of
reproducing the copies.
(d) The right to a response from the institution to reasonable
requests for explanations and interpretations of those records.
(e) The right to an opportunity for a hearing to challenge the
content of records.
(f) If any material or document in the record of a student includes
information on more than one student, the right to inspect and review
only that portion of such material or document as relates to that
particular student or to be informed of the specific information
contained in such part of such materials.
25 CFR 43.8 Destruction of records.
This part does not prevent educational institutions from destroying
any records, if not otherwise prevented by law. However, access shall
be granted under 43.5 before destroying student records where the
parent or eligible student has requested access. Only records which are
no longer relevant or necessary may be destroyed, subject to 43.23(c).
25 CFR 43.9 Procedures for granting access.
Each educational institution shall establish appropriate procedures
for granting a request by parents for access to the records of their
children, or by eligible students for access to their own records within
a reasonable period of time. In no case shall access be withheld more
than forty-five (45) days after the request has been made.
25 CFR 43.10 Right to challenge.
Each educational institution shall give parents of students and
eligible students, who are or have been in attendance at the
institution, an opportunity to challenge the content of the student's
records to:
(a) Insure that the records are not inaccurate, misleading, or
otherwise violating the privacy or other rights of students.
(b) Provide an opportunity for correcting or deleting any inaccurate,
misleading, or otherwise inappropriate data in the record.
(c) Insert into such records a written comment by the parents or
eligible students pertaining to the content of such records.
25 CFR 43.11 Informal proceedings.
Educational institutions may attempt to resolve differences with the
parent of a student or the eligible student regarding the content of the
student's records through informal meetings and discussions with the
parent or eligible student.
25 CFR 43.12 Right to a hearing.
Upon the request of the educational institution, the parent, or
eligible student, a hearing shall be conducted under the procedures
adopted and published by the institution. Such procedures shall include
at least the following elements:
(a) The hearing shall be conducted and decided within a reasonable
period of time following the request for the hearing.
(b) The hearing shall be informal and a verbatim record of
proceedings will not be required. Interpreters will be utilized when
necessary.
(c) The hearing shall be conducted by an institutional official or
other party who does not have a direct interest in the outcome of the
hearing.
(d) The parents or eligible student shall be given a full and fair
opportunity to present evidence relevant to the issues raised under
43.10.
(e) Within a reasonable period of time after the hearing ends, the
hearing official shall make his recommendation in writing to the head of
the educational institution. Within 20 days after receipt of the
recommendation, the head of the institution shall issue his decision in
writing to the parent or eligible student.
25 CFR 43.13 Right of appeal.
If any parent or eligible student is adversely affected by the
decision of the head of the institution, that party shall have appeal
rights as given in 25 CFR part 2. However, each official decision shall
be issued within 30 days from receipt of the appeal.
25 CFR 43.14 Consent.
Educational institutions shall not permit access to or the release of
student records or personally identifiable information contained in
them, other than directory information of students, without the written
consent of the parents or of an eligible student, to any party other
than the following:
(a) Local school officials, including teachers within the educational
institution, who have been determined by the institution to have
legitimate educational interests in the records.
(b) Officials of other schools or school systems at which a student
is interested in enrolling. The student or parent must be notified of
such release except in cases involving Bureau of Indian Affairs schools.
All Bureau of Indian Affairs schools are considered to be components of
one school system whether operated under contract or otherwise.
(c) Persons having official involvement with a student's application
for or grant of financial aid.
(d) Parents of a dependent student as defined in section 152 of the
Internal Revenue Code of 1954, as amended.
(e) Accreditation agencies in order to carry out their accrediting
functions.
(f) U.S. Office of Education officials and other governmental
education officials when deemed necessary by the institution to carry
out their official functions.
(g) An education testing center or similar institution as a part of
its validation research which has been authorized by the school.
(h) In an emergency, any person to whom the information is necessary
in the discretion of the school's administration in order to protect the
student's health and safety, subject to 43.17.
(i) Indian groups, contractors, grantees, professional social service
organizations and personnel performing professional services, when
necessary to carry out an official function authorized by the Bureau of
Indian Affairs.
(j) Pursuant to the order of a court of competent jurisdiction;
however, the parent or eligible student must be notified of such order
in advance of compliance therewith by the educational institution.
25 CFR 43.15 Content of consent.
The consent of a parent or eligible student requested under this part
for the release of student records shall be in writing, signed and dated
by the person giving the consent. The consent shall include:
(a) A specification of the records to be released.
(b) The reasons for release.
(c) The names of the parties to whom the records will be released.
25 CFR 43.16 Copy to be provided to parents or eligible students.
Where the consent of a parent or eligible student is required under
this part for the release of student records, a copy of the records to
be released shall be provided on request to:
(a) The student's parents or the eligible student.
(b) The student who is not an eligible student, if desired by the
parents.
25 CFR 43.17 Release of information for health or safety emergencies.
(a) Educational institutions may release information from student
records to appropriate persons in an emergency if the information is
necessary to protect the health or safety of a student or other person.
The factors to be used in determining whether records may be released
under this section include the following:
(1) The seriousness of the threat to the health or safety of the
student or other persons.
(2) The need for those records to meet the emergency.
(3) Whether the persons to whom the records are released are in a
position to deal with the emergency.
(4) The extent to which time is of the essence in dealing with the
emergency.
25 CFR 43.18 Record of access.
(a) Each educational institution shall maintain a record kept with
the student records of each student, which will indicate all parties
other than those specified in 43.14 which have requested or obtained
access to those records and which will indicate specifically the
legitimate interest that each party had in obtaining this information.
(b) A record of access shall be available only to:
(1) Parents or eligible students.
(2) The school official and his or her assistants who are responsible
for the custody of such records.
(3) Persons or organizations authorized in and under the conditions
of 43.14.
25 CFR 43.19 Transfer of information by third parties.
(a) Educational institutions shall not release personal information
on a student except on the condition that the party to which the
information is being transferred will not permit any other party to have
access to the information without the written consent of the parents or
of the eligible students.
(b) With any information released to a party under paragraph (a) of
this section, educational institutions shall include a written statement
which informs the party of the requirement in paragraph (a) of this
section.
25 CFR 43.20 Directory information.
(a) Any educational institution making public directory information
shall make a reasonable effort to individually notify the parent or
eligible student of the categories of information which it has
designated as directory information. The institution shall allow a
reasonable period of time after notice has been given for a parent or
eligible student to inform the institution that any or all of the
information designated should not be released without the prior consent
of the parent or eligible student.
(b) Directory information may include the following: A student's
name, address, telephone listing, date and place of birth, major field
of study, participation in officially recognized activities and sports,
weight and height of members of athletic teams, dates of attendance,
degrees and awards received, and the most recent previous educational
agency or institution attended by the student, tribe, agency, area, name
of parent, sex, and classification (grade). No other information may be
included. Educational institutions have the right to limit the content
of directory information.
25 CFR 43.21 Standards for collection and maintenance of student
records.
(a) Records shall contain only information about an individual which
is relevant and necessary to accomplish a purpose of the Bureau required
to be accomplished by statute or Executive order of the President.
(b) Student records which are used in making any determination about
any student shall be maintained with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the student in making the determination.
(c) Information which may be used in determining a student's rights,
benefits, and privileges under Federal programs shall be collected
directly from the student or his parents, to the greatest extent
practicable. In deciding whether collection of information from a
parent or eligible student, as opposed to a third-party source is
practicable, the following factors among others may be considered:
(1) Whether the nature of the information sought is such that it can
only be obtained from a third party.
(2) Whether the cost of collecting the information from the parent or
student is unreasonable, when compared with the cost of collecting it
from a third party.
(3) Whether there is a risk that information collected from third
parties, if inaccurate, could result in an adverse determination to the
student concerned.
(4) Whether the information, if supplied by the parent or student,
would have to be verified by a third party.
(5) Whether provisions can be made for verification by the parent of
student of information collected from third parties.
(d) Each individual parent or eligible student who is asked to supply
information about himself which will be added to a system of student
records shall be notified of the basis for requesting the information,
how it may be used, and what the consequences, if any, are of not
supplying the information. At a minimum, the notice to the parent or
eligible student must state:
(1) The authority (whether granted by statute or Executive Order of
the President) which authorizes requesting the information and whether
disclosure of such information is mandatory or voluntary.
(2) The principle purpose or purposes for which the information is
intended to be used.
(3) The routine uses which may be made of the information.
(4) The effects, if any, of not providing all or any part of the
requested information.
(e) When information is collected on a standard form, the notice to
the parent or eligible student shall be on the form or on a tear-off
sheet attached to the form or on a separate sheet, whichever, is most
practical.
(f) When information is collected by an interviewer, the interviewer
shall provide the parent or eligible student with a written notice which
the individual may retain. If the interview is conducted by telephone,
however, the interviewer may summarize the notice for the individual and
need not provide a copy to the individual unless the individual requests
that a copy be mailed to him.
(g) A parent or eligible student may be asked to acknowledge, in
writing, that he has been given the notice required by this section.
(h) No student records may be maintained describing how any
individual exercises rights guaranteed by the first amendment to the
Constitution unless:
(1) Expressly authorized by statute or by the individual about whom
the student record is maintained; or
(2) Pertinent to and within the scope of an authorized law
enforcement activity.
25 CFR 43.22 Assuring integrity of records.
(a) Student records shall be maintained with appropriate
administrative, technical and physical safeguards to insure the security
and confidentiality of records and to protect against any anticipated
threats or hazards to their security or integrity which could result in
substantial harm, embarrassment, inconvenience, or unfairness to any
individual on whom information is maintained.
(b) When maintained in manual form, student records shall be
maintained, at a minimum, subject to the following safeguards, or
safeguards giving comparable protection:
(1) Areas in which the student records are maintained or regularly
used shall be posted with an appropriate warning, stating that access to
the records is limited to authorized persons. The warning shall also
summarize the requirements of 43.23 and state that employees may be
subject to a criminal penalty for the unauthorized disclosure of student
records.
(2) During working hours, the area in which the student records are
maintained or regularly used shall be occupied by authorized personnel,
or access to the student records shall be restricted by their storage in
locked metal file cabinets or a locked room.
(3) During nonworking hours, access to the student records shall be
restricted by their storage in locked metal file cabinets or a locked
room.
(4) Where a locked room is the method of security provided for a
system, the educational institution responsible for the system shall, no
later than December 31, 1978, supplement that security by:
(i) Providing lockable file cabinets or containers for the student
records, or
(ii) Changing the lock or locks for the room so that they may not be
opened with a master key. For the purpose of this paragraph, a master
is a key which may be used to open rooms other than the room containing
student records, unless those rooms are used by officials or employees
authorized to have access to the student records.
(c) When maintained in computerized form, student records shall be
maintained, at a minimum, subject to safeguards based on those
recommended in the National Bureau of Standards' booklet, ''Computer
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30,
1975), and any supplements to it, which are adequate and appropriate to
assure the integrity of records in the system.
(d) The education institution responsible for a system of student
records shall be responsible for assuring that specific procedures are
developed to assure that the student records in the system for which it
is responsible are maintained with security meeting the regulations in
this section. These procedures shall be in writing and shall be posted
or otherwise periodically brought to the attention of employees working
with the student records contained in the system.
25 CFR 43.23 Conduct of employees.
(a) Employees whose duties require handling of student records shall,
at all times, take care to protect the integrity, security, and
confidentiality of these records.
(b) No employee of the educational institution may disclose student
records unless disclosure is permitted under 43.14 or made to the
parent of the student or eligible student to whom the record pertains.
(c) No employee of the educational institution may alter or destroy a
student record, unless:
(1) Alteration or destruction is properly undertaken in the course of
the employee's regular duties, or
(2) Alteration or destruction is required by an authorized
administrative decision or the decision of a court of competent
jurisdiction.
(d) The educational institution responsible for a system of student
records shall be responsible for assuring that employees with access to
the system are made aware of the requirements of this section.
25 CFR 43.23 PART 45 -- SPECIAL EDUCATION
25 CFR 43.23 Subpart A -- General
Sec.
45.1 General responsibility.
45.2 Provisions of early childhood special education programs and
services.
45.3 Children of ages eighteen through twenty-one.
45.4 Full educational opportunity.
45.5 Definitions.
25 CFR 43.23 Subpart B -- Identification and Evaluation of Handicapped
Children
45.11 Child find.
45.12 Child find -- elements.
45.13 Register of children.
45.14 General entry screening.
45.15 Periodic school screening.
45.16 Screening personnel.
45.17 Screening results and referrals.
45.18 Individual evaluations.
45.19 Evaluation procedures.
45.20 Individual evaluation objectives.
45.21 Formation of multi-disciplinary evaluation teams.
45.22 Composition of multi-disciplinary evaluation teams.
45.23 Content of individual evaluations.
45.24 Test administration.
45.25 Location of evaluation.
45.26 Multi-disciplinary evaluation team procedures.
45.27 Emergency evaluation and placement.
45.28 Independent educational evaluation.
45.29 Additional procedures for evaluating specific learning
disabilities.
25 CFR 43.23 Subpart C -- Provision of Special Education and Related
Services
45.30 Free appropriate public education.
45.31 Individualized education program (IEP).
45.32 Content of individualized education program (IEP).
45.33 Individualized education program (IEP) development.
45.34 Placement recommendation in the IEP.
45.35 Approval of IEP and placement recommendation.
45.36 Parent participation.
45.37 IEP implementation and placement.
45.38 IEP revision, review of placement.
45.39 Re-evaluation.
45.40 Extended school year services.
45.41 Outcome goals.
45.42 Related services.
45.43 Non-academic and extracurricular services.
45.44 Physical education and athletics.
45.45 Expulsion/suspension.
45.46 Geographic accessibility.
45.47 Architectural barriers and program accessibility.
45.48 Handicapped children in private schools placed or referred by
agencies.
45.49 Handicapped children in private schools placed by parents.
25 CFR 43.23 Subpart D -- Procedural Safeguards
45.51 Notice to parents.
45.52 Parental consent.
45.53 Rights of handicapped children.
45.54 Access rights.
45.55 Confidentiality of information.
45.56 Surrogate parents.
45.57 Conciliation/mediation.
45.58 Initiation of hearings.
45.59 Hearing officers.
45.60 Impartial hearing officer.
45.61 Hearing reports.
45.62 Timeliness and convenience of hearings and reviews.
45.63 Administrative appeal: impartial review.
25 CFR 43.23 Subpart E -- Personnel
45.65 In-service training.
45.66 Qualifications of staff.
25 CFR 43.23 Subpart F -- School Administration
45.70 Assurance of compliance.
45.71 Annual evaluation.
45.72 Comparability of facilities.
45.73 Non-discrimination.
25 CFR 43.23 Subpart G -- Responsibilities of the Division
45.74 The Division.
45.75 Monitoring.
45.76 Complaint procedures.
45.77 Use of available funds.
45.78 Children for whom the Division of Social Services has accepted
financial responsibility.
45.79 Cooperative agreements.
45.80 Bureau of Indian Affairs Advisory Committee for Exceptional
Children.
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 20 U.S.C. 1411-1420.
Source: 50 FR 34102, Aug. 23, 1985, unless otherwise noted.
25 CFR 43.23 Subpart A -- General
25 CFR 45.1 General responsibility.
(a) Schools are responsible for providing a free appropriate
education to all handicapped Indian children enrolled in a school
operated or funded by the Bureau of Indian Affairs (BIA) who are between
the ages of five (5) and twenty-one (21). Children whose fifth birthday
occurs on or before December 31 or whose twenty-second birthday occurs
during the course of the regular school year shall be regarded as
eligible children for the entire school year.
(b) The BIA has the responsibility to ensure the provision of a free
appropriate education until a handicapped child successfully completes a
secondary school program, voluntarily withdraws or attains the age of
twenty-two (22) years, regardless of whether the handicapped child is
provided special education and related services:
(1) By a school directly;
(2) Through a contract entered into by the school with a public or
private agency;
(3) By an educational cooperative of which the school is a member;
or
(4) By an approved public or non-public school program (following
placement or referral).
25 CFR 45.2 Provision of early childhood special education programs and
services.
(a) Children from birth to four (4) years of age, who are not
enrolled in BIA funded or operated schools, may receive special
education services through coordination with Head Start and other
existing Early Childhood Special Education programs (ECSE).
(b) Early Childhood Special Education (ECSE) means specially designed
special education and related services, to meet the unique needs of a
child under the age of five (5) years whose handicap or impairment
adversely affects the child's educational performance or learning
abilities.
25 CFR 45.3 Children of ages eighteen through twenty-one.
A child of ages eighteen (18) through twenty-one (21) shall be
entitled to all of the rights given to children and parents by this
part.
25 CFR 45.4 Full educational opportunity.
A full educational opportunity must be provided to all handicapped
children, ages five (5) through twenty-one (21) who are enrolled in
schools operated or funded by the BIA.
25 CFR 45.5 Definitions.
(a) Agency means an organizational unit of the Bureau which provides
direct services to the governing body or bodies of one or more specified
Indian tribes. The term includes Bureau Area Education offices only
with respect to off-reservation boarding schools, cooperative schools,
and tribally operated contract schools located in the Area for which the
Director has not designated an Agency.
(b) Agency Superintendent for Education means the Bureau official in
charge of Bureau education programs and functions in an Agency, and who
reports to the Director, Office of Indian Education Programs (OIEP).
(c) Approved public or non-public school means:
(1) Either a public school operated by an intermediate educational
unit, a local education agency or other public agency (as those terms
are defined in 34 CFR 300.7, 300.8, 300.11) of a State which receives
funds under part B of the Education of the Handicapped Act, as amended
(20 U.S.C. 1411-1420) pursuant to a current annual program plan approved
by the Secretary of Education; or
(2) A non-public school located in a State determined by the State
educational agency to be in full compliance with all applicable State
and Federal special education requirements.
(d) Area Education Program Administrator means the Bureau official in
charge of Bureau Education programs and functions in a Bureau Area
office and who reports to the Director.
(e) Assistant Secretary means the Assistant Secretary -- Indian
Affairs, Department of the Interior, or his/her designee.
(f) Boarding school means a Bureau school offering a residential
center and support services as well as an academic program.
(g) Bureau means the Bureau of Indian Affairs of the Department of
the Interior.
(h) Child identification means the identification, location, and
individual evaluation of handicapped children.
(i) Cooperative agreements means an agreement between schools
operated or funded by the BIA and state and local education agencies for
the provision of special education and related services to handicapped
children enrolled or eligible to be enrolled in the BIA school.
(j) Counseling services means services provided by qualified social
workers (with training as counselors), psychologists, guidance
counselors, or other qualified personnel.
(k) Days mean consecutive calendar days.
(l) Director means the Director, Office of Indian Education Programs.
(m) The Division means the Branch of Exceptional Education, Office of
Indian Education Programs, Bureau of Indian Affairs, Department of the
Interior.
(n) EHA means part B of the Education of the Handicapped Act as
amended by the Education for All Handicapped Children Act of 1975 (Pub.
L. 94-142), 20 U.S.C. 1411-1420, and the regulations issued by the U.S.
Department of Education, 34 CFR 300.1.
(o) Handicapped child means a child evaluated in accordance with the
requirements of this Part who is determined to be mentally retarded,
hard of hearing, deaf, deaf-blind, speech impaired, visually
handicapped, seriously emotionally disturbed, multi-handicapped,
orthopedically impaired, other health impaired or as having specific
learning disabilities and who because of these impairments needs special
education and related services. The terms used in this definition are
defined as follows:
(1) Deaf means a hearing impairment which is so severe that the child
is impaired in processing linguistic information through hearing, with
or without amplification, which adversely affects educational
performance.
(2) Deaf-blind means concomitant hearing and visual impairments, the
combination of which causes such severe communication and other
developmental and educational problems that they cannot be accommodated
in special education programs solely for deaf or blind children.
(3) Hard of hearing means a hearing impairment, whether permanent or
fluctuating, which adversely affects a child's educational performance
but which is not included under the definition of deaf in this section.
(4) Mentally retarded means significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the developmental period, which adversely
affects a child's educational performance.
(5) Multi-handicapped means concomitant impairments (such as mentally
retarded-blind, mentally retarded-orthopedically impaired, etc., but not
including speech impaired), the combination of which causes such severe
educational problems that they cannot be accommodated in special
education programs solely for one of the impairments. The term does not
include deaf-blind children.
(6) Orthopedically impaired means a severe orthopedic impairment
which adversely affects a child's educational performance. The term
includes impairments caused by congenital anomaly (e.g., clubfoot,
absence of member, etc.), impairments caused by disease (e.g.,
poliomyelitis, bone tuberculosis, etc.), and impairments from other
causes (e.g., cerebral palsy, amputations, and fractures or burns which
cause contractures).
(7) Other health impaired means (i) having an autistic condition
which is manifested by severe communication and other developmental and
educational problems; or (ii) having limited strength, vitality or
alertness, due to chronic or acute health problems such as a heart
condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell
anemia, hemophilia, epilepsy, lead poisoning, leukemia, or diabetes,
which adversely affects a child's educational performance.
(8) Seriously emotionally disturbed is defined as follows:
(i) The term means a condition exhibiting one or more of the
following characteristics over a long period of time and to a marked
degree, which adversely affects educational performance including:
(A) An inability to learn which cannot be explained by intellectual,
sensory, or health factors;
(B) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers;
(C) Inappropriate types of behavior or feelings under normal
circumstances;
(D) A general pervasive mood of unhappiness or depression; or
(E) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(ii) The term includes children who are schizophrenic. The term does
not include children who are socially maladjusted, unless it is
determined that they are seriously emotionally disturbed.
(9) Specific learning disability means a disorder in one or more of
the basic psychological processes involved in understanding or in using
language, spoken or written, which may manifest itself in an imperfect
ability to listen, think, speak, read, write, spell, or to do
mathematical calculations. The term includes such conditions as
perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia,
and developmental aphasia. The term does not include children who have
learning problems which are primarily the result of visual, hearing, or
motor handicaps, or mental retardation, or emotional disturbance, or of
environmental, cultural, or economic disadvantage.
(10) Speech impaired means a communication disorder, such as
stuttering, impaired articulation, a language impairment, or a voice
impairment, which adversely affects a child's educational performance.
(11) Visually handicapped means a visual impairment which even with
correction, adversely affects a child's educational performance. The
term includes both partially seeing and blind children.
(p) Independent education evaluation means an evaluation conducted by
a qualified examiner who is not employed by the Agency responsible for
the education of the child in question.
(q) Individualized Education Program (IEP) means the written
individualized education for a handicapped child which is consistent
with all the requirements of 45.31 -- 45.38 of this part.
(r) Indian means a person who is a member of an Indian tribe.
(s) Indian Tribe means any Indian Tribe, Band, Nation, Rancheria,
Pueblo, Colony or Community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688) which is
recognized by the Secretary as eligible for the special programs and
services provided through the Bureau to Indians because of their status
as Indians.
(t) Individual Intelligent Quotient (IQ) test means any individual
test, device, or measure which purports to assess a child's current
mental abilities, capacity, intellectual functioning, intellectual
development or aptitude, but does not include achievement test or
adaptive behavior scales.
(u) In-service training means training other than that received by an
individual in a full-time program which leads to a degree.
(v) Least Restrictive Environment (LRE) means that to the maximum
extent appropriate, handicapped children in public or private
institutions or other care facilities, are educated with children who
are not handicapped; and that special classes, separate schooling or
other removal of handicapped children from the regular environment
occurs only when the nature or severity of the handicap is such that
education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.
(w) Native language when used with reference to a person of limited
English-speaking ability, means the language normally used by that
person, or in the case of a child, the language normally used by the
parents of the child. In all direct contact with a child (including
evaluation of the child), communication would be in the language
normally used by the child and not that of the parents, if there is a
difference between the two.
(x) Parent means a parent, a guardian, or person acting as a parent
of a child, or a surrogate parent who has been appointed in accordance
with 45.56. The term parent is defined to include persons acting in the
place of a parent, such as a grandmother or step-parent with whom a
child lives, as well as persons who are legally responsible for a
child's welfare.
(y) Parental consent means: (1) that the parent has been fully
informed of all information relevant to the activity for which consent
is sought, in his or her native language, or other mode of
communication; (2) the parent understands and agrees in writing to the
carrying out of the activity for which his or her consent is sought, and
the consent describes that activity and lists the records (if any) which
will be released and to whom; and (3) the parent understands that the
granting of consent is voluntary on the part of the parent and may be
revoked at any time.
(z) Parent counseling and training means assisting parents in
understanding the special needs of their child and providing parents
with information about child development.
(aa) Physical education means the development of physical and motor
fitness; fundamental motor skills and patterns; skills in aquatics,
dance, individual, and group games and sports. The term includes
special physical education, adaptive physical education, movement
education and motor development.
(bb) Related services means transportation and such developmental,
corrective, and other supportive services as are required to assist a
handicapped child to benefit from special education and includes speech
pathology and audiology, psychological services, physical and
occupational therapy, recreation, early identification and assessment of
disabilities in children, counseling services, and medical services for
diagnostic or evaluation purposes. The term also includes school health
services, social work services in schools, and parent counseling and
training.
(cc) School means educational or residential centers operated by or
under contract with the Bureau of Indian Affairs offering services to
Indian students under the authority of a local school board and the
direction of the school supervisor. A school may be located on more
than one physical site. The term school, unless otherwise specified, is
meant to encompass day schools, boarding schools, cooperative schools,
and contract schools as those terms are commonly used. The term school
shall also encompass private schools, facilities, and institutions, with
which the Bureau of Indian Affairs may contract for services to
handicapped Indian children.
(dd) Section 504 means section 504 of the Rehabilitation Act of 1973,
29 U.S.C. 794.
(ee) Special education means specially designed instruction, at no
cost to the parent, to meet the unique needs of a handicapped child,
including classroom instruction, instruction in physical education, home
instruction, and instruction in hospitals and institutions.
(ff) Special education coordinator means the qualified employee of an
Area/Agency responsible for ensuring that all requirements of this part
are complied with by the schools within the jurisdiction of the
Area/Agency.
(gg) Supervisor or school supervisor means the individual in the
position of authority at any school.
(hh) Tribally operated contract school means a school (other than a
public school) which is financially assisted under a contract with the
Bureau.
(ii) Vocational education means organized educational programs which
are directly related to the preparations of individuals for paid or
unpaid employment, or for additional preparation for a career requiring
other than a baccalaureate or advanced degree.
25 CFR 45.5 Subpart B -- Identification and Evaluation of Handicapped Children
25 CFR 45.11 Child find.
Each Agency must insure that every child within its jurisdiction
between the ages of birth and twenty-two years who is suspected of being
handicapped and in need of special education and related services is
identified and located. A formal child find effort must be conducted at
least once each school year and must include procedures to identify
children:
(a) Enrolled in a regular education program operated by the schools
of the Agency;
(b) Enrolled in a pre-school or day-care program on or near the
reservation; or
(c) Currently out-of-school, including dropouts but excluding
children who have graduated or otherwise successfully completed
programs. Schools shall conduct child find activities for in-school
identification as described in 45.12.
25 CFR 45.12 Child find -- elements.
Each Agency shall:
(a) Conduct a formal community survey through any effective method to
identify children of all ages who may be in need of special education
and related services.
(b) Regularly present or distribute child find information at tribal
government or agency meetings, tribal fairs, chapter/district meetings,
etc.
(c) Establish a system of in-school identification by which each
local school supervisor or designee refers children whose academic
performance, attendance, or other behavior indicates the possibility of
a handicapping condition for an individual evaluation.
(d) Establish a procedure by which child identification data is
regularly collected from the Indian Health Service, local Headstart
programs, day care facilities, group homes, local public and non-public
schools, the state education agency (of the state in which the Agency is
located), tribal agencies and/or organizations and any other appropriate
education, health, welfare or social service organization in the
community served by the Agency. A formal procedure for the exchange of
information between the State Organizational Unit conducting the ''Early
Periodic Screening, Diagnosis and Treatment Program'' (mandated by Title
XIX of the Social Security Act) for the state in which the school is
located and the Agency in which the school is located shall be
established within 180 days from the effective date of this part.
(e) Publish public information articles and programs in local media,
including announcements of times, dates, and places of free orientation
workshops and free screening.
(f) Initiate annual community-wide communication to all parents of
school age children which describes the special education program. Such
communication shall emphasize the availability of programs and services
for school age children.
25 CFR 45.13 Register of children.
Each school shall maintain information on each handicapped child
enrolled in the program. All information collected and maintained must
be kept in accordance with the confidentiality requirements of Pub. L.
94-142 and the Privacy Act.
25 CFR 45.14 General entry screening.
Each school shall participate in a screening program for all newly
enrolled children and children who have not previously been screened in
the school. Such screening shall be conducted by the school in order to
identify those children who should be referred for a full individual
evaluation. The general entry screening shall consist of the following
elements, appropriately adapted for use with children of his/her
particular age. This screening must be completed within thirty (30)
days of the child's enrollment and include at a minimum:
(a) An appropriate vision screening;
(b) An appropriate hearing screening;
(c) A screening of the child's primary language skills;
(d) The administration by a classroom teacher of a general screening
instrument (i.e., rating scale) to provide information regarding:
(1) Current academic performances,
(2) Social and emotional behavior,
(3) Gross motor skills,
(4) Fine motor skills,
(5) Any observable health problems, and
(6) The teachers impression of the need for additional assessment.
25 CFR 45.15 Periodic school screening.
(a) At a minimum, schools must annually screen all students enrolled
in odd numbered grades (i.e., first, third, fifth, seventh, ninth and
eleventh grades) within the first thirty (30) days of enrollment.
(b) For schools using a non-graded system, the screening must occur
every other year, beginning with the first level of enrollment at the
school. The periodic school screening must meet the requirements set
forth in 45.14. Nothing in this part exempts newly enrolled students in
even numbered grades, kindergarten, or pre-school from being screened as
required in 45.14.
25 CFR 45.16 Screening personnel.
The school shall utilize personnel who are trained to do the specific
screening which is being performed.
25 CFR 45.17 Screening results and referrals.
The school supervisor or designee shall review all results obtained
through the screening procedures indicated in 45.14-15 with the
classroom teacher as a team within ten (10) days of completion of this
screening and determine if an individual evaluation is warranted.
(a) Upon the determination that an individual evaluation is needed,
the school supervisor or designee shall within twenty (20) days complete
the following:
(1) Inform the parents of the screening results and the
recommendations of the team.
(2) Explain parental rights as required in 45.51 to the parents.
(3) Obtain parental consent to perform an individual evaluation.
(4) When parental consent for an individual evaluation is obtained a
formal referral must be prepared according to procedures established by
the Agency Special Education Coordinator in consultation with the school
supervisor. The referral shall be fowarded to the appropriate personnel
for action.
(b) Should parental consent be denied, possible alternatives to
formal evaluation such as modifications to the regular classroom program
must be considered and discussed with the parent and classroom teacher
prior to implementing due process procedures as provided in 45.58. The
discussion required in this part must be held within five (5) days of
formal denial of consent and any modifications agreed upon must be
implemented within thirty (30) days. If no agreement can be reached
through these ''conciliation'' measures the due process procedures in
45.58 should be considered.
(c) Nothing in this part is to be interpreted as prohibiting the
child's parent, teacher or school administrator from referring a child
for an individual evaluation should they feel that an evaluation is
needed regardless of the screening cycle.
(d) Screening scales completed on children must be kept in the
child's cumulative file until the succeeding scale is completed. If a
child is placed in a Special Education Program, the screening results
will then become a part of the child's handling file. The child, once
placed, will become exempt from the screening procedures conducted
thereafter.
25 CFR 45.18 Individual evaluations.
(a) An individual evaluation must be conducted after receiving
parental consent when:
(1) The child is referred based on the screening results, or
(2) Requested by the parent, teacher or administrator in writing.
(b) A student must be re-evaluated when:
(1) A disagreement occurs between the school and parent regarding a
change of placement from one program to another (i.e., full-time special
education to regular classroom, part-time special education to regular
classroom, etc.),
(2) A change is proposed for the identification of a student's
handicapping condition to a different condition (i.e., seriously
emotionally disturbed to specific learning disabled, mentally retarded
to specific learning disability, etc.),
(3) A child is currently enrolled in a special education program and
the last evaluation was administered three years ago, or
(4) Requested by the parent.
25 CFR 45.19 Evaluation procedures.
Procedures for selecting testing and evaluation materials and
procedures developed for the purpose of evaluation and placement of
handicapped children will not be racially or culturally discriminatory.
Materials or procedures shall be provided and administered in the
child's native (primary) language or mode of communication unless it is
clearly not feasible to do so. No single procedure shall be the sole
criterion for determining an appropriate educational program for a
child. Assessment instruments should be selected on a child-by-child
basis. Assessments must be reported in such a manner as to indicate
present levels of the child's performance, to determine the need for
special education and related services. Based on the individual needs
of the child, additional specialized assessments may be required.
Assessment reports should contain a summary of the diagnosis and
specific educational recommendations for remediation. Assessment of a
handicapped child will be multi-disciplinary, in order to provide a
comprehensive view of the child from the perspective of the school,
home, and community.
(a) For the purposes of non-discriminatory testing and evaluation
practices, the following shall apply:
(1) Assessment instruments shall be appropriately adapted when used
with children of impaired sensory, physical, or speaking skills and such
adaptation shall consider each child's age and socio-economic and
cultural background.
(2) Specialists implementing evaluation procedures must be familiar
with local, cultural, language, and social patterns and practices.
(3) Interpretors, in the native language and/or sign language may be
used throughout all phases of the evaluation.
(4) Communication with parents and the child shall be in the native
language of the home (through the use of an interpretor) unless the
English language is well understood by the parents, guardians, or child.
(5) Local community norms shall be considered when norm referenced
tests are used.
(6) Criterion referenced instruments should be used.
(7) Developmental checklist(s) should be used where appropriate.
(8) Instruments shall be administered only by trained personnel and
according to the producer's instructions.
(9) Instruments shall assess specific abilities, not merely produce a
single IQ score.
(10) No one result shall determine placement.
(b) Assessment instruments should be adapted in accordance with the
producers instructions to meet the individual needs of the child being
evaluated. This requires that:
(1) Instruments be adapted according to age, socioeconomic, and
cultural background of each child before or during a child's evaluation.
(2) Instruments be adapted for children with perceptual problems
either before or during an evaluation.
(c) Evaluation shall be conducted in educationally related areas to
verify a child's suspected need for special education. Evaluations
shall be accomplished through coordination with the school supervisor
and the Agency Special Education Coordinator when appropriate.
(d) An assessment by a psychologist shall be provided when
appropriate to the child's needs. Such assessment may include:
(1) An individually appropriate psychological examination culminating
in specific recommendations, based upon the child's developmental and
social history.
(2) Observation of the child in familiar surroundings, such as a
classroom or home.
(3) Inventory of sensory, motor, language, perceptual, attentional,
cognitive, affective, attitudinal, self-image, interpersonal,
behavioral, interest and vocational factors, in regard to the child's
maturity, integrity and interaction with the educational and/or home
context.
(e) An assessment by a nurse, social worker, or a counselor shall be
provided when appropriate for the child. Such assessment of pertinent
family history and home situation factors shall include:
(1) A description of pertinent family history and individual
developmental history and estimates of adaptive behavior at home in the
neighborhood and in local peer groups.
(2) Estimates of adaptive behavior shall be based to the greatest
possible degree on information obtained by direct observation or
interview of the child and/or parent in the neighborhood setting.
(f) Each qualified specialist providing an assessment component shall
give the child a professionally sound, complete and suitable
individualized examination or assessment in the context of the child's
physical, developmental, social and educational history and current
circumstances.
(g) Individual evaluations shall be conducted on a child unless there
are written and documented reasons determined on an individual basis,
for waiving evaluations. Acceptable reasons may include but are not
limited to circumstances where:
(1) The parents refuse to permit an evaluation.
(2) The parents arrange for an equivalent evaluation of their child
by a qualified professional.
(3) An equivalent evaluation has been completed within the past three
(3) years.
25 CFR 45.20 Individual evaluation objectives.
The objectives of an individual evaluation are to:
(a) Determine where a child is handicapped;
(b) Diagnose and evaluate the nature and extent of the effect of such
impairment or condition on the educational performance of the child;
and
(c) Assess the need for special education and related services and to
recommend intervention strategies.
25 CFR 45.21 Formation of multi-disciplinary evaluation teams.
(a) The school supervisor will be responsible for the overall conduct
of the individual evaluation and shall collect and review all pertinent
information regarding the child to be evaluated.
(b) The Special Education Coordinator shall coordinate through the
school supervisor, the selection of a multi-disciplinary evaluation team
for the conduct of the evaluation.
25 CFR 45.22 Composition of multi-disciplinary evaluation teams.
The multi-disciplinary evaluation team shall be composed of qualified
persons appropriate to complete an assessment of the suspected
disability. In all cases the classroom teacher (or other instructional
staff member) familiar with the child and a person knowledgeable with
respect to the suspected disability must be included on the team.
25 CFR 45.23 Content of individual evaluations.
Each individual evaluation must include:
(a) An assessment of the child's educational status which includes:
(1) A history of the child's prior evaluations.
(2) A statement of the child's attendance pattern to include schools
attended and average daily attendance in prior years.
(3) An educational history including:
(i) The child's academic grades.
(ii) The child's achievement and aptitude test scores and a statement
of the child's current academic standing or school readiness.
(iii) Previous educational strategies used to remediate the child's
educational need.
(iv) A statement of the child's social relations with groups, peers,
and adults based on classroom and teacher observations.
(v) A description of the child's academic strengths that promote
learning.
(vi) A description of the child's physical limitations and behavior
that inhibit learning.
(vii) A statement of the child's attentional capacity and
communication skills.
(b) A health assessment which includes:
(1) Present and past medical review.
(2) Physical examination.
(3) Current existing medical conditions and prescribed treatment(s).
(c) An assessment by a psychologist, including an individual
psychological examination culminating in specific recommendations, as
contained in 45.19.
(d) Children who have a speech impairment as their primary handicap
may not need a complete battery of assessments (e.g., psychological,
physical, or adaptive behavior). However, a qualified speech-language
pathologist will:
(1) Evaluate each speech impaired child using procedures that are
appropriate for the diagnosis and appraisal of speech and language
disorders, and
(2) Where necessary, make referrals for additional assessments needed
to make an appropriate placement decision. For example, if a child is
suspected of being seriously emotionally disturbed, the child should be
evaluated by either a clinical psychologist or a psychiatrist.
25 CFR 45.24 Test administration.
Agencies shall insure, at a minimum, that:
(a) Tests and other evaluation materials:
(1) Are provided and administered in the child's native language or
other mode of communication, unless it is clearly not feasible to do so;
(2) Have been validated for the specific purpose for which they are
used; and
(3) Are administered by trained personnel in conformance with the
instructions provided by their producer;
(b) Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those which are
designed to provide a single general intelligence quotient;
(c) Tests are selected and administered so as best to ensure that
when a test is administered to a child with impaired sensory, manual, or
speaking skills, the test results accurately reflect the child's
aptitude or achievement level or whatever other factors the test
purports to measure rather than reflecting the child's impaired sensory,
manual, or speaking skills (except where those skills are the factors
which the test purports to measure);
(d) No single procedure is used as the sole criterion for determining
an appropriate educational program for a child;
(e) The child is assessed in all areas related to the suspected
disability, including, where appropriate, health, vision, hearing,
social and emotional status, general intelligence, academic performance,
communicative status, and motor abilities;
(f) Tests, to the greatest extent possible, are free from racial,
cultural and sexual bias; and
(g) Determinations of mental retardation are based on an assessment
of a variety of factors including adaptive behavior and past and current
development activities (e.g., indices or manifestations of social,
intellectual, adaptive, verbal, motor, language, emotional and self-care
development for age).
25 CFR 45.25 Location of evaluation.
(a) The evaluation shall take place in the school or at another
facility which is jointly approved by the child's parents and school
officials.
(b) When a child has been referred for an evaluation and, at the time
of such referral, such child is in a hospital or is otherwise living
away from home, the Agency shall make appropriate arrangements for the
provision of the evaluation.
25 CFR 45.26 Multi-disciplinary evaluation team procedures.
(a) Each individual evaluation must be completed, with full attention
to its comprehensiveness and thoroughness, within thirty days from the
date of written parental consent. An extension of time of thirty
additional days may be approved in writing by the Agency Superintendent
for Education after written documentation by the school that unusual
circumstances exist preventing completion of the individual evaluation
in the specified time. No more than one extension may be approved in
connection with a single individual evaluation unless approved in
writing by the Director, or designee.
(b) The comprehensive assessment must reflect a compilation of
information drawn from different assessment sources. The depth of the
assessment in each area will vary based on the initial review of
screening information conducted by the school supervisor.
(c) The Special Education Coordinator is responsible for ensuring
that full and complete records of information collected or generated in
connection with an individual evaluation are maintained. A report
setting forth a full written explanation of the findings and the
recommendations made by the multi-disciplinary evaluation team must be
prepared. The report must include:
(1) A description of the child's present level of functioning;
(2) A description of the needs of the child in rank order of
importance;
(3) A recommendation of the types of services which should be
provided for each listed need;
(4) A written summary of the procedures employed, the results, and
the diagnostic impression;
(5) A proposed date for the review of the child's progress prior to
the review required in 45.38, if such assessment so indicates; and
(6) Criteria by which at that time, the effectiveness of the child's
program may be determined.
(d) Each member of the multi-disciplinary evaluation team shall
certify in writing whether the report prepared by the team reflects his
or her conclusions, and if not, shall submit a separate statement
presenting his or her conclusions. The report must be prepared no later
than fifteen (15) days after completion of the evaluation.
(e) Members of the multi-disciplinary evaluation teams must be
responsible for all aspects of the individual evaluation including: the
selection; administration and interpretation of evaluation materials;
the collection of all appropriate social and cultural background and
adaptive behavior information related to each evaluation; and the
confidentiality of information collected during the individual
evaluation.
25 CFR 45.27 Emergency evaluation and placement.
(a) Where a child demonstrates documented instances of dangerously
assaultive or self-abusive behavior, the school supervisor may approve a
temporary change in placement (i.e., to a special education setting
other than the regular classroom) on an emergency basis. The school
supervisor shall immediately notify the Special Education Coordinator of
the placement. The Agency shall no later than the following day
determine the appropriateness of the placement and initiate the
evaluation process.
(b) The parent shall be informed immediately of the child's behavior
and shall participate (if possible within the constraints of time) in
the emergency placement decision and consent for evaluation will be
obtained.
(c) An individual evaluation must be completed within fifteen days of
the emergency placement. Procedures as outlined in 45.23 must be
followed. A final placement determination, made by the IEP committee,
must be made within five (5) days following completion of the individual
evaluation.
25 CFR 45.28 Independent educational evaluation.
(a) The parents of a handicapped child have the right under this part
to obtain an independent educational evaluation of the child, subject to
paragraphs (b) through (e) of this section. Each school/Agency shall
provide to parents, on request, information about where an independent
educational evaluation may be obtained.
(b) A parent has the right to an independent education evaluation at
public expense if the parent disagrees with an evaluation obtained by
the school or Agency. However, the school or Agency may initiate a
hearing in accordance with the procedures of this part to show that its
evaluation is appropriate. If the final decision is that the evaluation
is appropriate, the parent still has the right to an independent
educational evaluation, but not at school expense.
(c) If the parent obtains an independent educational evaluation at
private expense, the results of the evaluation:
(1) Must be considered by the school in any decision made with
respect to the provision of a free appropriate public education to the
child; and
(2) May be presented as evidence at a hearing regarding that child.
(d) If a hearing officer requests an independent educational
evaluation as part of a hearing, the cost of the evaluation must be at
school or Agency expense.
(e) Whenever an independent evaluation is at school or Agency
expense, the criteria under which the evaluation is obtained, including
the location of the evaluation and the qualifications of the examiner,
must be the same as the criteria which the school or Agency uses when it
initiates an evaluation.
25 CFR 45.29 Additional procedures for evaluating specific learning
disabilities.
(a) In evaluating a child suspected of having a specific learning
disability, in addition to the requirements of 45.22, each Agency shall
include on the multi-disciplinary evaluation team:
(1) The child's regular teacher; or
(2) If the child does not have a regular teacher, a regular classroom
teacher qualified to teach a child of his or her age; or
(3) For a child of less than school age, an individual qualified to
teach a child of his or her age; and
(4) At least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-language
pathologist, or remedial reading teacher.
(b) At least one team member other than the child's regular teacher
shall observe the child's academic performance in the regular classroom
setting. (In the case of a child of less than school age or out of
school, a team member shall observe the child in an environment
appropriate for a child of that age.)
(c) The team may determine that a child has a specific learning
disability if:
(1) The child does not achieve commensurate with his or her age and
ability levels in one or more of the areas listed in paragraph (c)(2) of
this section, when provided with learning experiences appropriate for
the child's age and ability levels; and
(2) The team finds that a child has a severe discrepancy between
achievement and intellectual ability in one or more of the following
areas:
(i) Oral expression;
(ii) Listening comprehension;
(iii) Written expression;
(iv) Basic reading skill;
(v) Reading comprehension;
(vi) Mathematics calculation; or
(vii) Mathematics reasoning.
(d) The multi-disciplinary team may not identify a child as having a
specific learning disability if the severe discrepancy between ability
and achievement is primarily the result of:
(1) A visual, hearing, or motor handicap;
(2) Mental retardation;
(3) Emotional disturbance; or
(4) Environmental, cultural or economic disadvantage.
(e) The multi-disciplinary team shall prepare a written report of the
results of the evaluation. The report must include a statement of:
(1) Whether the child has a specific learning disability;
(2) The basis for making the determination;
(3) The relevant behavior noted during the observation of the child;
(4) The relationship of that behavior to the child's academic
functioning;
(5) The educationally relevant medical findings, if any;
(6) Whether there is a severe discrepancy between achievement and
ability which is not correctable without special education and related
services; and
(7) The determination of the team concerning the effects of
environmental, cultural, or economic disadvantage.
(f) Each team member shall certify in writing whether the report
reflects his or her conclusion. If it does not reflect his or her
conclusion, the team member must submit a separate statement presenting
his or her conclusions. The report must be prepared no later than
fifteen (15) days after completion of the evalution.
25 CFR 45.29 Subpart C -- Provision of Special Education and Related Services
25 CFR 45.30 Free appropriate public education.
(a) Each BIA funded or operated school must ensure that a free
appropriate public education is provided to every handicapped Indian
child enrolled in the school between the ages of five (5) and twenty-one
(21) years.
(b) An appropriate education is one which meets the needs of a
handicapped child as set forth in the individual education program in
the least restrictive educational setting. An appropriate education
involves the provision of regular education, special education and
related aids or services and may include pre-school, elementary school,
or secondary school education.
(c) The provision of a free education is the provision of educational
and related services without cost to the child (or parents), except for
those fees that are imposed on a non-handicapped child, and may consist
of the provision of free services or the payment of the costs of the
program. Transportation must be provided in order to assure access of
persons to services.
25 CFR 45.31 Individualized education program (IEP).
If, as a result of the determination of a multi-disciplinary team, a
child is diagnosed as being handicapped and in need of special education
and related services, schools are required to develop an IEP within
thirty (30) days from the date of receipt of the written individual
evaluation report. The IEP shall set forth the approach which will be
taken to ensure that the child will be provided a free, appropriate
education.
25 CFR 45.32 Content of individualized education program (IEP).
At a minimum, the IEP must contain:
(a) A statement of the child's present levels of educational
performance;
(b) A statement of annual goals, including short term instructional
objectives;
(c) A statement of the specific special education and related
services to be provided to the child, and the extent to which the child
will be able to participate in regular education programs;
(d) The projected dates for initiation of services and the
anticipated duration of the services;
(e) Appropriate objective criteria and evaluation procedures and
schedules for determining, on at least an annual basis, whether the
short term instructional objectives are being achieved;
(f) A description of the nature and duration of physical education
services to be provided to the child; and
(g) A statement that all services recommended by the
multi-disciplinary team are being provided, or if all recommended
services are not provided, a justification for the exclusion of the
services.
25 CFR 45.33 Individualized education program (IEP) development.
(a) Overall responsibility for the development of each IEP rests with
the school supervisor.
(b) The IEP shall be developed by a committee which shall hold at
least one meeting and includes among its members the following:
(1) The School Supervisor, or designee (who shall chair the
committee) other than the child's teacher, who is qualified to provide
or supervise the provision of special education;
(2) The child's teacher and/or other relevant instructional staff;
(3) One or both of the child's parents;
(4) The child, where appropriate; and
(5) Other individuals at the discretion of the parent, Agency, or
school.
(c) For a handicapped child who has been evaluated for the first
time, the Agency shall insure:
(1) That a member of the evaluation team participates in the meeting;
or
(2) That the representative of the school, the child's teacher, or
some other person is present at the meeting, who is knowledgeable about
the evaluation procedures used with the child and is familiar with the
results of the evaluation.
(d) Upon receiving written application from the school, the Agency
Superintendent for Education may allow the school to postpone the
development of an initial IEP to the beginning of a new school year, if
the written evaluation report is completed within fifteen (15) days of
the end of the current school year and, if the Agency Superintendent for
Education determines that an IEP need not be implemented during the
summer.
(e) Schools must prepare a progress report related to the
instructional objectives specified in the IEP for each handicapped child
and must include it with, or in lieu of the grading report prepared by
the school for all elementary and secondary students.
25 CFR 45.34 Placement recommendation in the IEP.
(a) Placement recommendations shall be made by the School Supervisor
or designee in concert with the IEP committee and shall be incorporated
in the IEP.
(b) The appropriate placement must be selected from the following:
(1) The regular classroom;
(2) The regular classroom with consultation;
(3) The regular classroom with resource teacher;
(4) The regular classroom with itinerant resource teacher;
(5) The regular classroom in conjunction with a resource room;
(6) A self-contained special classroom with part-time instruction in
regular class;
(7) A self-contained special class (regular campus);
(8) A self-contained special class in a special day facility;
(9) Homebound instruction; and
(10) Instruction in hospitals and residential facilities.
(c) Schools may not decline to propose placement for a child or
recommend to parents that a child be enrolled ''voluntarily'' in a
non-BIA operated/funded school program. In selecting from the continuum
of alternative settings, no handicapped child may be proposed for
placement in any alternative settings unless it can be demonstrated that
the nature or severity of the child's disability is such that education
in regular class (in the school the child attends if not handicapped)
with the use of supplementary aids and services cannot be achieved
satisfactorily. Each school must insure that a continuum of alternative
placements which meets the particular needs of each enrolled handicapped
child is available.
(d) Placement of a handicapped child in a boarding school operated by
the Bureau which concurrently enrolls non-handicapped children of the
same age and grade shall be considered a placement in a regular school
campus.
(e) Alternative placements may be provided directly by the school, or
through cooperative arrangements with local and state education agencies
or, except as provided in paragraph (h) of this section, through
contractual arrangements with approved non-public schools, agencies or
institutions.
(f) Alternative (9), homebound instruction may be selected only when
the handicapped child:
(1) Currently possesses a physical impairment or illness which
directly (or because of treatment required) precludes the movement of
the child from a hospital or home environment to the general education
environment; or
(2) Has been determined (after an individual evaluation) to require a
program of continuous mental health care and treatment which would be
seriously disrupted by movement to the general educational environment.
The proposed homebound instruction should permit the return of the child
to the general education environment at a specified date. The Agency
Superintendent for Education must be immediately notified in writing of
each homebound placement made by the school.
(g) Alternative placement (10) may be selected only when the health
or safety of the child precludes the child's attendance at a nearby
school for special education services.
(h) Alternative placements (1) through (8) may not be provided
through contractual arrangements with approved non-BIA operated/funded
schools, Agencies or institutions if there are a sufficient number of
handicapped children with similar educational needs who live within the
attendance area served by the school to justify the allocation of one
teacher.
(i) Handicapped individuals who do not meet the age requirements of
the Bureau may be served by the local school, provided they are not
counted for ISEP formula funding, with the approval of the local school
board and the Agency Superintendent for Education, and so long as such
placement does not dilute the quality and/or quantity of services
provided to eligible handicapped students.
(j) If the multi-disciplinary team determines that a residential
placement for a child is appropriate they should notify the Agency
Special Education Coordinator in writing. Upon receipt of such notice,
the Special Education Coordinator, with the approval of the Agency
Superintendent for Education, will consult with the Education Specialist
for institutional placement to determine that the placement is in
compliance with Federal laws regarding the education of handicapped
children.
25 CFR 45.35 Approval of IEP and placement recommendation.
(a) The school must attempt to schedule a meeting which includes the
school supervisor or designee, the child's parent(s), and the receiving
teacher and others as identified in 45.33.
(b) The parent(s) of the child must be provided full and effective
written notice of the meeting and all reasonable efforts must be made by
the school supervisor to ensure parental participation. The written
notice to parents shall also contain the following information:
(1) A statement that the evaluation has been completed and that the
parents have the right to meet with the School Supervisor, the Special
Education Coordinator or any member of the IEP committee to discuss and
plan the IEP.
(2) A statement that all papers relevant to the evaluation, including
the actual written assessments, are available for inspection by the
parents or a designated representative of the parents;
(3) A statement that the parent has a right to an independent
evaluation as provided in 45.28;
(4) A statement of the parent's options under paragraph (c) of this
section and a form for indicating the option selected by the parent;
and
(5) A statement explaining the consequences of the parent's rejection
of the proposed IEP under the due process procedures established by
45.58.
(c) The parent of a child, upon receipt of full and effective notice,
may exercise any of the following options (by giving written notice to
the school):
(1) To accept or reject a written evaluation finding that the child
does not need special education;
(2) To accept or reject the IEP. A parent may accept an IEP in whole
or in part and the school shall immediately implement the mutually
accepted elements of the IEP;
(3) To accept a modified IEP that has been mutually agreed upon with
the School Supervisor or designee following the meeting described in
paragraph (a) of this section; or
(4) To postpone a decision on the IEP until the completion of an
independent evaluation; and
(5) To obtain an independent evaluation of their child.
(d) This meeting may be the first and only full meeting of the IEP
committee. The meeting must include a thorough discussion of the
results of the child's individual evaluation, the child's proposed IEP
and the child's proposed educational placement. The school supervisor
or designee should take whatever action is necessary to insure that the
parents understand the proposed IEP and the proposed educational
placement before requesting consent for placement. At the close of the
final meeting, each member of the committee shall sign the completed IEP
to signify their participation and agreement with the educational plan.
25 CFR 45.36 Parent participation.
(a) Each school shall take steps to encourage that one or both of the
parents of the handicapped child are present at each meeting including:
(1) Try to schedule the meeting at a mutually agreed upon time and
place.
(2) Notifying parents of the meeting early enough to insure that they
will have an opportunity to attend.
(b) The notice under paragraph (a)(2) of this section must indicate
the purpose, time, and location of the meeting, and who will be in
attendance.
(c) If neither parent can attend, the school shall use other methods
to insure parent participation, including individual or conference
telephone calls.
(d) A meeting may be conducted without a parent in attendance if the
school is unable to convince the parents that they should attend. In
this case the school must have a record of its attempts to arrange a
mutually agreed on time and place such as:
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place of
employment and the results of those visits.
(e) The school shall take whatever action is necessary to insure that
the parent understands the proceedings at a meeting, including arranging
for an interpreter for parents who are deaf or whose native language is
other than English.
(f) The school shall give the parent a copy of the IEP.
25 CFR 45.37 IEP implementation and placement.
(a) For newly identified children, the IEP must be implemented and
educational placement must be made:
(1) Within thirty (30) days after the written parental approval of
the placement has been received; or
(2) In cases involving due process, placement will be made within
thirty (30) days of the final written decision of the hearing officer,
unless an appeal is filed by the aggrieved party.
(b) If the school cannot, within thirty (30) days, provide any or all
of the services called for in the IEP the School Supervisor must consult
the Agency Superintendent for Education on alternate means of providing
the services to fully implement the IEP. The Agency Superintendent for
Education must make provision for the service within fourteen (14) days
of the consultation.
25 CFR 45.38 IEP revision, review of placement.
Consistent with the requirements of 45.37, the IEP must be reviewed
and updated annually. The review and revision of the IEP must be
completed no later than the first day of school of the next full term.
Whenever possible, the review shall be scheduled near the time that
there may be a change in the personnel providing the major services to
the child under the IEP, as when the child is to move from one grade or
school to another. The review shall be conducted as follows:
(a) The school supervisor, the parents, and the person(s) providing
the major services to the child under the IEP shall meet and make a
careful review of the child's progress based upon the progress reports
submitted by the school during the grading period, and the observations
of those working with the child.
(b) The School Supervisor shall invite (in writing) the child's
parents and, where appropriate, the child, to attend and participate in
the review meeting. The School Supervisor or the parents may, at their
discretion, invite other person(s) who have worked with, are working
with, or will be working with the child to attend the review meeting.
(c) The participants in the review meeting shall determine:
(1) Whether the child has achieved the goals set forth in the IEP;
(2) Whether the child has met the criteria which indicate readiness
to enter a less restrictive program;
(3) Whether the program the child is in should be specifically
modified to make it more suitable to the child's needs; and
(4) Whether it is desirable to refer the child for an individual
re-evaluation.
(d) The participants in the review meeting shall review the current
IEP and revise it as appropriate in accordance with 45.34. If a
re-evaluation of the child is scheduled in accordance with 45.39, the
revision of the new IEP shall be deferred until completion of the
re-evaluation. If the parent is unable to attend the review meeting,
the school shall provide the parent with copies of all relevant
documents within five (5) days after the review meeting has been
completed.
(e) During the annual review, the description of current educational
performance in the IEP must be updated and the overall educational
needs, long-term educational goals, short-term objectives, and related
services modifications made. Schools are required to rewrite sections
of the IEP only to the extent necessary to update or modify the plan.
25 CFR 45.39 Re-evaluation.
Parental approval is not required for the conduct of a re-evaluation
if the child has been initially placed and his/her individualized
education program has been reviewed following the requirements of this
part. Notice of the conduct of the re-evaluation must be provided to
the parent prior to re-evaluation. A written summary of the
re-evaluation must be provided to the parents within five (5) days of
the scheduled review meeting. A child must be re-evaluated at least
every three (3) years.
25 CFR 45.40 Extended school year services.
(a) The IEP may provide for continuous instruction (uninterrupted by
the regular summer recess) whenever:
(1) Continuous instruction is likely to be necessary in order to
sustain, with only minor regression, current important educational
skills and information retention; or
(2) The child lives in a residential facility or institution.
(b) The extension of an IEP for a ten (10) to twelve (12) month
instructional program shall not result in a more restrictive change in
placement on the continuum of alternative placements nor shall it
constitute a basis for any deviation from any other educational
placement requirement of 45.34 of this part. However, the increased
isolation of handicapped children which could result from the operation
of an instructional program for handicapped children during a period of
time when non-handicapped children are not attending school would not
violate any requirements of this part.
25 CFR 45.41 Outcome goals.
IEP's for children over the age of fifteen (15) years may contain, as
appropriate, either a description of regular and/or special education
instructional services leading to the attainment of a regular high
school diploma before the age of twenty-two or a program of regular or
special vocational education leading to participation in a
work-experience (or sheltered employment) program and the attainment of
an appropriate level of vocational proficiency to permit, whenever
possible, the child's entry into competitive employment upon or before
reaching the age of twenty-two.
25 CFR 45.42 Related services.
The school must ensure that each handicapped child has developmental,
corrective and other supportive services (to the maximum extent
feasible) to benefit from special education.
25 CFR 45.43 Non-academic and extracurricular services.
(a) Non-academic and extracurricular services and activities must be
offered in a way which allows equal opportunity for handicapped children
to participate in services and activities.
(b) Non-academic and extracurricular services, meals and recess
periods must be provided in the most integrated setting appropriate to
the needs of the child.
25 CFR 45.44 Physical education and athletics.
(a) Handicapped children must be provided an equal opportunity for
participation in physical education courses and inter-scholastic, club
or intramural athletics sponsored by the school.
(b) Physical education services must be provided to handicapped
children in the regular physical education program and may not be
different from those provided other children, unless:
(1) The child is enrolled full time in a separate facility or needs
specially designed physical education; and
(2) A separate physical education setting is the least restrictive
environment.
25 CFR 45.45 Expulsion/suspension.
A handicapped child may not be expelled or suspended from school if
the behavior for which action is being taken is related to the child's
disability. If the child's behavior is so disruptive that the education
of others is impaired, a review of the child's IEP and placement as
described in 45.38 of this part must be undertaken in order to meet the
needs of the child.
25 CFR 45.46 Geographic accessibility.
Consistent with the requirements of the IEP, the educational
placement of a child must be as close to the child's home as possible.
The placement of a handicapped child in an off-reservation boarding
school operated by the Bureau shall not be regarded as inconsistent with
this requirement to the extent that similarly situated non-handicapped
students are also placed in such a school.
25 CFR 45.47 Architectural barriers and program accessibility.
(a) Facilities used by schools, directly, or through contractual
arrangement, must be accessible to and usable by handicapped children.
The accessibility standards of the American National Standards Institute
(ANSI A117.1-1961 (R 1971)) shall be followed. Schools located in
isolated locations may make application to the Director for an annual
waiver of any standard. Such a request must be based on documented
inability to meet the standards. In no event may architectural barriers
prevent a handicapped child from being educated in the least restrictive
educational environment as defined in 45.34.
(b) Program accessibility (i.e., where each program or activity, when
viewed in its entirety, is readily accessible to handicapped children)
must be ensured in all existing facilities.
(c) Program accessibility may be accomplished through the following
methods:
(1) Redesign of equipment;
(2) Reassignment of classes or other services to accessible building;
(3) Assignment of aides to children;
(4) Home visits;
(5) Alteration of existing facilities; or
(6) Other methods.
(d) The method for accomplishing program accessibility which offers
programs and activities to children in the least restrictive
environment.
25 CFR 45.48 Handicapped children in private schools placed or referred
by agencies.
Requirements of this section apply to handicapped children who are or
have been placed in or referred to a private school or facility by an
Agency as a means of providing special education and related services.
(a) Each Agency shall insure that a handicapped child who is placed
in or referred to a private school or facility is:
(1) Provided special education and related services in conformance
with an IEP which meets the requirements under 45.30 -- 45.38 at no
cost to the parents; and
(2) At a school or facility which meets the standards that apply to
the Agencies (including the requirements in this part).
(b) In implementing the requirements of this part the Agency shall:
(1) Monitor compliance through procedures such as written reports,
on-site visits, and parent questionnaires;
(2) Disseminate copies of applicable standards to each private school
and facility to which an Agency has referred or placed a handicapped
child;
(3) Provide an opportunity for those private schools and facilities
to participate in the development and revision of BIA standards which
apply to them; and
(c) Assure that handicapped children have all of the rights of a
non-handicapped child.
25 CFR 45.49 Handicapped children in private schools placed by parents.
(a) If a handicapped child has available a free appropriate public
education and the parents choose to place the child in a private school
or facility, the Agency is not required by this part to pay for the
child's education at the private school or facility.
(b) Disagreements between a parent and a public agency regarding the
availability of a program appropriate for the child, and the question of
financial responsibility, are subject to the due process procedures
under 45.57 through 45.63.
25 CFR 45.49 Subpart D -- Procedural Safeguards
25 CFR 45.51 Notice to parents.
(a) Written notice must be given to the parents of a handicapped
child a reasonable time before the school:
(1) Proposes to initiate or change the identification, evaluation, or
educational placement of the child or the provision of a free
appropriate public education to the child, or
(2) Refuses to initiate or change the identification, evaluation, or
educational placement of the child or the provision of a free
appropriate public education to the child.
(b) The notice described under paragraph (a) of this section must
include:
(1) A full explanation of all the procedural safeguards available to
the parents including confidentiality requirements;
(2) A description of the proposed (or refused) action, explaining the
reasons for such action and describing any options which were considered
and rejected;
(3) A description of each evaluation procedure, test, record or
report used as a basis for the action and any other relevant factors;
(4) The name(s) of the employee(s) of the school who may be contacted
for further information;
(5) Language understandable to the general public, provided in the
language of the parent or other mode of communication used by the
parent(s) unless clearly not feasible.
(c) The notice must be communicated orally (where necessary) in the
primary language or other mode of communication to insure that the
parent understands the content.
(d) If an interpreter is used as part of the procedure for providing
full and effective notice, the school must maintain a written statement,
signed by the interpreter, to the effect that the parent understood the
content of the matter presented.
25 CFR 45.52 Parental consent.
(a) Parental consent must be obtained before:
(1) Conducting a preplacement evaluation; and
(2) Initial placement of a handicapped child in a program providing
special education and related services.
(b) Parental consent must also be obtained before personally
identifiable information is:
(1) Disclosed to anyone other than officials of participating
agencies collecting or using the information consistant with the
dislosure provisions of the Privacy Act of 1974, as amended;
(2) Used for any purpose other than meeting a requirement under this
part; or
(3) Used for purposes other than those previously specified to the
parent.
25 CFR 45.53 Rights of handicapped children.
Handicapped children shall have the right to:
(a) Non-discrimination on the basis of being handicapped;
(b) A free appropriate education;
(c) An independent educational evaluation as provided in this part,
and careful consideration of the results of an independent evaluation
with respect to the provision of a free appropriate education;
(d) Be accompanied and represented by persons of his/her choice at
any meeting or conference required or permitted by this part;
(e) Inspect and review all relevant records with respect to the
identification, evaluation and placement of the child and the provisions
of a free appropriate education;
(f) A hearing on any action for which notice is required with
opportunity for direct participation, representation by counsel, and
other procedural rights;
(g) Appeal to the Agency Superintendent for Education, or the Area
Education Program Administrator, as appropriate, and to the Director
relating to identification, evaluation or placement or to the provision
of a free, appropriate education;
(h) A surrogate parent, when appropriate;
(i) A copy of the full written explanation and findings of the
individual evaluation as soon as it is completed together with a full
oral explanation (effectively communicated) of both the findings and the
recommendations;
(j) A personal consultation with the members of the
multi-disciplinary team;
(k) Full and effective notice of proposed actions as provided in this
part;
(l) Parental approval or disapproval as provided in this part; and
(m) Information concerning any free or low-cost legal and other
relevant services available upon request or if a hearing is initiated.
25 CFR 45.54 Access rights.
(a) Each school and Agency must permit parents to inspect and review
any records directly relating to their children which are collected and
maintained by them or by a party acting for the school.
(b) A parental request to inspect and review records must be honored
without unnecessary delay and before any meeting regarding an IEP or
hearing relating to the identification, evaluation, or placement of the
child, and in no case more than fourteen (14) days after the request has
been made. The right to inspect and review educational records under
this section includes:
(1) The right to a response to reasonable requests for explanations
and interpretations of the records;
(2) The right to request that copies of the records containing the
information be provided at no cost to the parents;
(3) The right to have a representative of the parent (authorized in
writing) inspect and review the records.
(4) The right to place a statement in the records a school maintains
on a child. Such statement may comment on any information or set forth
any reason for disagreeing with the decisions of the Agency. Any
explanation placed in the records must be maintained by the Agency. If
the contested portion of the record is disclosed to any party, the
parent's explanation must also be disclosed.
(c) The parent shall be presumed to have authority to inspect and
review records relating to his or her child unless the school has been
advised, in writing, that the parent does not have the authority under
applicable tribal or state law governing such matters as guardianship,
separation, and divorce.
(d) A record of parties obtaining access to education records (except
access by parents and authorized employees of the school) must be kept
and must include the name of the party, and the date access took place.
(e) Parents, upon request, shall be provided with a list of the types
and the purpose of the authorized use of education records of their
child.
(f) If any education record includes information on more than one
child, the parents of those children shall have the right to inspect and
review only the information relating to their child or to be informed of
that specific information.
(g) A parent who believes that information in the education records
is inaccurate or misleading or violates the privacy or other rights of
the child, may request that the information be amended. The school or
Agency must decide whether to amend the information as requested within
fourteen (14) days of receipt of request. If the school or Agency
decides to refuse to amend the information, it must inform the parent of
the refusal and advise the parent of the right to a hearing.
25 CFR 45.55 Confidentiality of information.
(a) The confidentiality of personally identifiable information must
be protected at collection, storage, disclosure, and destruction stages.
(b) One person designated by the school must assume responsibility
for insuring the confidentiality of any personally identifiable
information.
(c) All persons collecting or using personally identifiable
information must receive training or instruction regarding the policies
and procedures set forth in this subpart.
(d) Schools must maintain, for public inspection, a current listing
of the names and positions of the employees who may have access to
personally identifiable information.
(e) Schools must inform parents when personally identifiable
information collected, maintained, or used under this part is no longer
needed to provide educational services to the child. The information
must be destroyed at the request of the parents. However, a permanent
record of a student's name, address, phone number, grades, attendance
record, classes attended, grade level completed, and year completed may
be maintained without time limitation.
25 CFR 45.56 Surrogate parents.
(a) After documented, repeated and reasonable efforts to identify and
locate a parent of a handicapped child, or of a child suspected of being
a handicapped child, or whenever a child is a ward of a court, the
School Supervisor must institute a proceeding before an appropriate
tribunal to determine the need for a surrogate parent and, if need is
found, for the appointment of a surrogate parent.
(b) The person appointed as a surrogate parent shall:
(1) Have no interest that conflicts with the interests of the child
and shall not be a present employee of the school involved in the
education or care of the child or a present employee of Office of Indian
Education Programs;
(2) Have knowledge and skills that insure adequate representation of
the child; and
(3) Wherever possible, be a member of the child's extended family, or
if that is not possible, a member of the same tribe as the child.
(c) The surrogate parent shall represent the child in all matters
relating to the identification, individual evaluation and educational
placement of the child and the provision of a free appropriate public
education.
(d) Surrogate parents may not be appointed for the sale purpose of
representing parents at the IEP conference.
(e) Payment of fees for service as a surrogate parent does not, in
and of itself, render a person an employee of the BIA.
25 CFR 45.57 Conciliation/mediation.
(a) The school must make all reasonable efforts consistent with its
obligations under this part, to resolve informally any ongoing disputes
between the parent and the school.
(b) Prior to the initiation of a due process hearing, the Bureau
shall attempt to intervene with the mediation process. The following is
a statement which describes this technique.
(1) Mediation is a dispute resolution process which is
non-adversarial in nature. It seeks not to declare winners or losers,
but to find reconciliation between disputing parties. This process is
conducted through the skills of a trained mediator. Its focus is the
mutually satisfactory resolution of disputes. No third party acts as
judge or jury. The parties themselves arrive at an assessment through
the process. Mediation can be initiated by either a parent or the
Bureau in order to resolve informally a disagreement with respect to the
identification, evaluation, or educational placement of, or the free
appropriate education provided to an Indian child. Mediation shall
consist of, but not be limited to, an informal discussion of the
differences between the parties in an effort to resolve those
differences. The parents and the appropriate school officials may
attend mediation sessions between the parties in an effort to resolve
those differences.
(2) Mediation must be conducted, attempted, or refused in writing by
concerned parties of the handicapped child whose education is at issue
before a request for, or initiation of, a hearing authorized by this
part. Any request by the Bureau for a hearing shall state in writing
how this requirement has been satisfied. No stigma may be attached to
the refusal of the concerned parties to mediate or to an unsuccessful
attempt to mediate. Mediation may not be used to deny or delay a
parent's right to impartial due process hearing.
25 CFR 45.58 Initiation of hearings.
(a) If the parent disagrees with any action taken by a school for
which full and effective notice to parents is required by this part, a
hearing may be initiated by the parent of a handicapped child or a child
suspected of being a handicapped child, by sending a written request for
hearing to the Agency Superintendent for Education. The Agency
Superintendent for Education must acknowledge receipt of the written
request within five (5) days of actual receipt.
(b) Hearings may be initiated by a school by providing full and
effective notice to parents in any instance where, after reasonable
efforts at conciliation, a parent either fails to provide written
approval of a proposed action, or provides a formal disapproval.
(c) Whenever a hearing is initiated, full and effective notice of the
initiation of the hearing must be provided by the hearing officer to all
persons concerned.
(d) The written notice of hearing shall include:
(1) A statement of the date, time, place and nature of the hearing;
(2) A statement of the legal authority and jurisdiction under which
the hearing is to be held;
(3) A reference to the particular sections of the statutes or
regulations involved; and
(4) A short and plain statement of matters asserted.
25 CFR 45.59 Hearing officers.
(a) A proposed hearing officer must be selected by the Agency
Superintendent for Education within one (1) day of receipt of a request
for a hearing, from a list established and maintained by the Agency.
(b) After selecting a proposed hearing officer, the Agency
Superintendent for Education must, within three (3) days, give the
parent(s) and the school full and effective notice of the name of the
proposed hearing officer.
(c) The parent and school, each upon notice of the selection of
proposed hearing officer, may request that the Agency/Area determine
that the person so proposed is not impartial and may exercise one
automatic disqualification during the appointment process. The Director
shall resolve all challenges for cause (i.e., partiality).
(d) If the proposed hearing officer is automatically disqualified or
found to be not impartial by the Director, the Agency Superintendent for
Education must within three (3) days designate another person.
(e) Final appointment of a hearing officer occurs whenever a proposed
hearing officer is selected by the Agency Superintendent for Education
and the parent or the school fails to notify the Agency Superintendent
for Education of a decision to challenge the impartiality of the
proposed hearing officer or of a decision to automatically disqualify
the proposed hearing officer (available only once for each party), or
when the Director determines that no doubt exists as to the impartiality
of a proposed hearing officer.
25 CFR 45.60 Impartial hearing officer.
(a) A hearing may not be conducted:
(1) By a person who is an employee of a school, or of the BIA, who is
involved in the education or care of the child, or
(2) By any person having a personal or professional interest which
would conflict with his or her objectivity in the hearing.
(b) A person who otherwise qualifies to conduct a hearing under
paragraph (a) of this section is not an employee of the Agency solely
because he or she is paid by the Agency to serve as a hearing officer.
25 CFR 45.61 Hearing reports.
(a) Any party to a hearing has the right to:
(1) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of
handicapped children. The cost for such counsel or expert
representatives shall be borne by the party employing them:
(2) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;
(3) Prohibit the introduction of any evidence at the hearing that has
not been disclosed to that party at least five (5) days before the
hearing;
(4) Obtain a written or electronic verbatim record of the hearing;
and
(5) Obtain written findings of fact and decisions.
(b) Parents involved in hearings must be given the right to:
(1) Have the child who is the subject of the hearing present; and
(2) Open the hearing to the public.
25 CFR 45.62 Timelines and convenience of hearings and reviews.
(a) The Agency shall ensure that a final decision is reached by the
hearing officer and a copy of the decision is mailed to each of the
parties within 45 days after receipt of a request for a hearing.
(b) A copy of the decision made in a review conducted by the
Assistant Secretary -- Indian Affairs must be mailed to each of the
parties within 30 days of the request for a review.
(c) The hearing or reviewing officer may grant specific extensions of
time at the request of either party.
(d) Each hearing and each review involving oral arguments must be
conducted at a time and place which is reasonably convenient to the
parents and child involved.
25 CFR 45.63 Administrative appeal: impartial review.
(a) A decision made in a hearing conducted under this subpart is
final, unless a party to the hearing appeals the hearing decision.
(b) A party aggrieved by the findings and decision in the hearing
may, within ten (10) days of the decision, appeal to the Assistant
Secretary -- Indian Affairs who may designate an official to conduct the
review.
(c) The Official conducting the review shall:
(1) Examine the entire hearing record;
(2) Insure that the procedures at the hearing more consistent with
the requirements of due process;
(3) Seek additional evidence if necessary. If a hearing is held to
receive additional evidence, the rights in 45.62 apply;
(4) Afford the parties an opportunity for oral or written argument,
or both, at the discretion of the reviewing official;
(5) Make an independent decision on completion of the review; and
(6) Provide written findings and the decision to the parties.
(d) The Department of the Interior considers the decision made by the
reviewing official as final.
25 CFR 45.63 Subpart E -- Personnel
25 CFR 45.65 In-service training.
(a) Each Agency must provide a written plan which insures that
ongoing in-service training programs are made available to all personnel
who are engaged in the education of handicapped children. To avoid
duplication, Agencies and schools must jointly determine training needs.
(b) Each plan must:
(1) Describe the process used in determining the in-service training
needs of personnel engaged in the education of handicapped children;
(2) Identify the areas in which training is needed (i.e.
individualized education programs, non-discriminatory assessment, least
restrictive environment, procedural safeguards, and surrogate parents);
(3) Specify the groups requiring training (i.e. special education
teachers, regular teachers, administrators, psychologists,
speech-language pathologists, audiologists, physical education teachers,
physical therapists, occupational therapists, medical personnel,
parents, volunteers, hearing officers, and surrogate parents);
(4) Describe the content and nature of training for each area under
paragraph (b)(2) of this section;
(5) Describe how the training will be provided in terms of:
(i) Location and scope; and
(ii) Staff training source (i.e. college and university staff, state,
school, Agency personnel, and non-Agency personnel);
(6) Specify:
(i) The funding sources to be used;
(ii) The timeframe for providing staff training; and
(iii) Procedures for effective evaluation of the extent to which
program objectives are met.
25 CFR 45.66 Qualifications of staff.
Job qualifications requirements shall be in conformance with 25 CFR
38.4 of the BIA Education Personnel Regulations.
25 CFR 45.66 Subpart F -- School Administration
25 CFR 45.70 Assurance of compliance.
In connection with each annual application for assistance under this
part, each School Supervisor must sign a written assurance that the
special education elementary and secondary program operated by the
school is currently in compliance with and will, in the future, be
operated in compliance with this part and any other applicable Federal
law.
25 CFR 45.71 Annual evaluation.
Each Agency must insure that an annual evaluation of the
effectiveness of programs in meeting the educational needs of
handicapped children is completed. The annual evaluation will be
performed in accordance with the following:
(a) The evaluation will be based on the projections made in each
agency/school funding application and must include an evaluation of the
individual education programs.
(b) Local School Boards and parents must be given the opportunity to
be involved in the evaluation.
(c) The Agency Special Education Coordinator will, through a review
and comparison of the report with monitoring findings, certify the
validity for the annual report.
(d) The Agency Special Education Coordinator will compile the reports
and submit the compilation to the Division of Exceptional Education.
(e) The Division will consolidate the evaluation data into a single
report on the BIA special education programs.
25 CFR 45.72 Comparability of facilities.
Facilities which are identifiable as being for handicapped children
and the services and activities provided therein, must meet the same
standards and level of quality as do facilities, services and activities
provided to non-handicapped children.
25 CFR 45.73 Non-discrimination.
(a) No Bureau of Indian Affairs operated and/or funded school shall
deny admission to any qualified Indian handicapped child on the basis of
handicap.
(b) Each school must provide each handicapped Indian child enrolled
therein whatever educational support services (including tutoring,
access to instructional equipment, auxiliary aids) are necessary to
permit the child to fully benefit from the program of special education
and related services.
25 CFR 45.73 Subpart G -- Responsibilities of the Division
25 CFR 45.74 The Division.
(a) The Division of Exceptional Education shall provide staff
assistance to the Director, Office of Indian Education Programs to
insure conformance with the requirements of this part. The Division
shall prepare and submit the annual program plan required by the
Education of the Handicapped Act. The Division shall be under the
supervision of a Division Chief who reports to the Director.
(b) The Director is responsible for educational programs for
handicapped children and has overall responsibility for insuring that
every handicapped Indian child enrolled in a Bureau operated or funded
school is provided a free appropriate education, and that all
requirements of this part are fully complied with by schools, Agencies,
and Areas.
25 CFR 45.75 Monitoring.
(a) The Division of Exceptional Education shall monitor and evaluate
the compliance of schools, Agencies, Areas and other affected public and
non-public agencies with the requirements of this part consistent with
written procedures. This monitoring will include:
(1) Data collection;
(2) On-site visits;
(3) Review of special education Federal fund utilization;
(4) Review of IEP implementation; and
(5) Review of the continued need for residential placements.
(b) Schools, Agencies, Areas, non-public school programs and other
affected Agencies shall keep timely, complete and accurate compliance
reports. These reports shall contain information to enable the Division
to ascertain compliance with the requirements of this part.
(c) Schools, Agencies, Areas, non-public school programs and other
affected Agencies must permit the staff of the Division of Exceptional
Education access to books, records, accounts, and other pertinent
information necessary to ascertain compliance.
(d) The Division of Exceptional Education may conduct inquiries on
behalf of an individual child or group of children, regarding failure to
comply with any provision of this part.
(e) The Division of Exceptional Education shall monitor
implementation of the procedural safeguard requirements of this part.
(f) The Division will provide a written report on the findings and
will recommend actions for compliance to the responsible Agency. The
Agency has the responsibility of providing this information to the
individual school boards and appropriate school officials.
25 CFR 45.76 Complaint procedures.
(a) The Director shall receive, review, and resolve complaints and
act on any allegations of substance on actions taken by a school or
Agency that are contrary to the requirements of this part.
(b) In carrying out the requirements of paragraph (a) of this section
the Division will assist Agencies to achieve compliance through:
(1) Technical assistance;
(2) Negotiation; and/or
(3) Third party mediation.
(c) Failure to comply with the requirements of this part (after
appropriate action as described in paragraph (b) of this section) shall
result in sanctions under existing BIA procedures including the
withholding of Pub. L. 94-142 Subpart B funds until the Agency or
school achieves compliance with the requirements of this part.
25 CFR 45.77 Use of available funds.
The Director shall insure that all funds to which schools become
entitled because of the enrollment of handicapped children, be used for
the identification, evaluation, and the provision of a free, appropriate
education to handicapped Indian children.
25 CFR 45.78 Children for whom the Division of Social Services has
accepted financial responsibility.
(a) After the effective date of this part, no handicapped Indian
child in the care of the Division of Social Services may be placed in,
or referred to any public or private residential facility until the
Director is consulted and the education component has been approved.
(b) The Director shall insure that no later than one (1) year from
the effective date of this part, every handicapped child currently the
responsibility of the Division of Social Services in a public or private
residential facility has been evaluated and provided an IEP in full
conformance with the requirements of this part. The need of the
children for continued residentially-based education services will be
carefully accessed during this process.
(c) Nothing in this part relieves an insurer or similar third party
from an otherwise valid obligation to provide or pay for services
provided to a handicapped child.
25 CFR 45.79 Cooperative agreements.
(a) The Director, or designee, is authorized to enter into
cooperative agreements with state and local education agencies for the
provision of special education and related services to handicapped
children enrolled in schools, operated and/or funded by the Bureau.
(b) The Director may not enter into any cooperative agreement for the
provision of special education and related services with state or local
education agencies which, with respect to any aspect of the cooperative
special education program, discriminates or has the effect of
discriminating, against any child on the basis of race, creed, national
origin, tribal affiliation, religion, sex, handicap or eligibility for
services provided by the Bureau.
(c) The Director is responsible for ensuring that every eligible
Indian handicapped child participating in a cooperative special
education program is provided a free, appropriate education in the least
restrictive environment consistent with the procedural safeguards
required by 45.34.
25 CFR 45.80 Bureau of Indian Affairs Advisory Committee for
Exceptional Children.
(a) The BIA Advisory Committee for Exceptional Children has been
chartered under and is subject to the provisions of the Federal Advisory
Committee Act, Pub. L. 92-463. The membership of the BIA Advisory
Committee for Exceptional Children must be composed of persons involved
in or concerned with the education of handicapped Indian children. The
membership shall include, but not be limited to:
(1) Handicapped individuals.
(2) Teachers of handicapped children.
(3) Parents of handicapped children.
(4) Agency and school officials.
(5) Special education program administrators.
(b) The advisory committee shall:
(1) Advise the Secretary of Interior, through the Assistant Secretary
-- Indian Affairs, of unmet special education needs of Indian children;
(2) Comment publicly on the annual program plan and rules or
regulations proposed for issuance by the Assistant Secretary -- Indian
Affairs regarding the education of handicapped Indian children attending
BIA operated or funded schools and the procedures for distribution of
funds under this part; and
(3) Assist the Assistant Secretary -- Indian Affairs in developing
and reporting such information and evaluation.
(c) The advisory committee shall meet as often as necessary to
conduct its business.
(d) By July 1 of each year, the advisory committee shall submit an
annual report of panel activities and suggestions to the Director and
the Assistant Secretary -- Indian Affairs. This report must be made
available to the public.
(e) Official minutes must be kept on all panel meetings and shall be
made available to the public upon request.
(f) All advisory committee meetings and agenda items must be publicly
announced prior to the meeting, and meetings must be open to the public.
(g) Interpreters and other necessary services must be provided at
committee meetings for committee members or participants.
(h) The advisory panel shall serve without compensation but will be
reimbursed for travel and expenses, in compliance with current Federal
travel regulations, as published by GSA, for attending meetings and
performing duties.
25 CFR 45.80 SUBCHAPTER F -- TRIBAL GOVERNMENT
25 CFR 45.80 PART 61 -- PREPARATION OF ROLLS OF INDIANS
Sec.
61.1 Definitions.
61.2 Purpose.
61.3 Information collection.
61.4 Qualifications for enrollment and the deadline for filing
application forms.
61.5 Notices.
61.6 Application forms.
61.7 Filing of application forms.
61.8 Verification forms.
61.9 Burden of proof.
61.10 Review of applications by tribal authorities.
61.11 Action by the Director or Superintendent.
61.12 Appeals.
61.13 Decision of the Assistant Secretary on appeals.
61.14 Preparation, certification and approval of the roll.
61.15 Special instructions.
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 U.S.C. 1401 et seq.
, as amended; Pub. L. 100-139; Pub. L. 100-580; Pub. L. 101-42.
Source: 50 FR 46430, Nov. 8, 1985, unless otherwise noted.
25 CFR 61.1 Definitions.
As used in these regulations:
Act means any act of Congress authorizing or directing the Secretary
to prepare a roll of a specific tribe, band, or group of Indians.
Adopted person means a person whose natural parents' parental rights
have been given to others to exercise by court order.
Approved roll means a roll of Indians approved by the Secretary.
Assistant Secretary means the Assistant Secretary of the Interior for
Indian Affairs or an authorized representative acting under delegated
authority.
Basic roll means the specified allotment, annuity, census or other
roll designated in the Act or Plan as the basis upon which a new roll is
to be compiled.
Commissioner means the Commissioner of Indian Affairs or an
authorized representative acting under delegated authority.
Descendant(s) means those persons who are the issue of the ancestor
through whom enrollment rights are claimed; namely, the children,
grandchildren, etc. It does not include collateral relatives such as
brothers, sisters, nieces, nephews, cousins, etc. or adopted children,
grandchildren, etc.
Director means the Area Director of the Bureau of Indian Affairs area
office which has administrative jurisdiction over the local field office
responsible for administering the affairs of the tribe, band, or group
for which a roll is being prepared or an authorized representative
acting under delegated authority.
Enrollee(s) means persons who have met specific requirements for
enrollment and whose names appear on a particular roll of Indians.
Lineal ancestor means an ancestor, living or deceased, who is related
to a person by direct ascent; namely, the parent, grandparent, etc. It
does not include collateral relatives such as brothers, sisters, aunts,
uncles, etc., or adopted parents, grandparents, etc.
Living means born on or before and alive on the date specified.
Plan means any effective plan prepared under the provisions of the
Act of October 19, 1973, Pub. L. 93-134, 87 Stat. 466, as amended,
which authorizes and directs the Secretary to prepare a roll of a
specific tribe, band, or group of Indians.
Secretary means the Secretary of Interior or an authorized
representative acting under delegated authority.
Sponsor means any person who files an application for enrollment or
appeal on behalf of another person.
Staff Officer means the Enrollment Officer or other person authorized
to prepare the roll.
Superintendent means the official or other designated representative
of the Bureau of Indian Affairs in charge of the field office which has
immediate administrative responsibility for the affairs of the tribe,
band, or group for which a roll is being prepared.
Tribal Committee means the body of a federally recognized tribal
entity vested with final authority to act on enrollment matters.
Tribal Governing Document means the written organizational statement
governing the tribe, band, or group of Indians and/or any valid
document, enrollment ordinance, or resolution enacted thereunder.
25 CFR 61.2 Purpose.
The regulations in this part 61 are to govern the compilation of
rolls of Indians by the Secretary of the Interior pursuant to statutory
authority. The regulations are not to apply in the compilation of
tribal membership rolls where the responsibility for the preparation and
maintenance of such rolls rests with the tribes.
25 CFR 61.3 Information collection.
The Office of Management and Budget has informed the Department of
the Interior that the information collection requirements contained in
61.4 need not be reviewed by them under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.).
25 CFR 61.4 Qualifications for enrollment and the deadline for filing
application forms.
(a) The qualifications which must be met to establish eligibility for
enrollment and the deadline for filing application forms will be
included in this part 61 by appropriate amendments to this section;
except that, when an Act or Plan states the qualifications for
enrollment and the deadline for filing application forms and specifies
that the regulations contained in this part 61 will apply, amendment to
this section will not be required for the procedures contained in this
part 61 to govern the preparation of the roll; provided further, the
provisions contained in this part 61 that were in effect when the
regulations were amended to include paragraphs (r), (s), (w), (x), (y),
and (z) shall control the preparation of the rolls under paragraphs (r),
(s), (w), (x), (y), and (z) of this section.
(b) Pembina Band of Chippewa Indians. (1) Pursuant to Section 7(a)
of the Act of December 31, 1982, Pub. L. 97-403, 96 Stat. 2022, a roll
is to be prepared and used as the basis for the distribution of an
apportioned share of judgment funds awarded the Pembina Chippewa Indians
in dockets numbered 113, 191, 221 and 246 of the Court of Claims of all
persons who:
(i) Are of at least 1/4 degree Pembina Chippewa blood;
(ii) Are citizens of the United States;
(iii) Were living on December 31, 1982;
(iv) Are not members of the Red Lake Band of Chippewa Indians, the
Turtle Mountain Band of Chippewa Indians, the Chippewa Cree Tribe of the
Rocky Boy's Reservation, or Minnesota Chippewa Tribe, or the Little
Shell Band of Chippewa Indians of Montana; and
(v) Are enrolled or are lineal descendants of persons enrolled:
(A) As Pembina descendants under the provisions of the Act of July
29, 1971 (85 Stat. 158), for the disposition of the 1863 Pembina Award,
or
(B) On the McCumber roll of the Turtle Mountain Indians of 1892, or
(C) On the Davis roll of the Turtle Mountain Indians of 1904; or
(D) As Chippewa on the tentative roll of the Rocky Boy Indians of May
30, 1917, or the McLaughlin census report of the Rocky Boy Indians of
July 7, 1917, or the Roe Cloud Roll of Landless Indians of Montana; or
(vi) Are able to establish Pembina ancestry on the basis of any other
rolls or records acceptable to the Secretary.
(2) Application forms for eligibility must be filed with the
Superintendent, Turtle Mountain Agency, Bureau of Indian Affairs,
Belcourt, North Dakota 58316, by March 10, 1986. Application forms
filed after that date will be rejected for failure to file on time
regardless of whether the applicant otherwise meets the qualifications
for eligibility.
(3) Each application for enrollment as a member of any of the tribes
specified in paragraph (b)(1)(iv) of this section, except the Red Lake
Band of Chippewa Indians, which may be rejected by the tribes shall be
reviewed by the Superintendent to determine whether the applicant meets
the qualifications for eligibility as a descendant of the Pembina Band
of Chippewas under paragraph (b)(1) of this section. Each rejection
notice shall contain a statement to the effect that the application is
being given such review.
(c) Cherokee Band of Shawnee Indians. (1) Pursuant to section 5 of
the Act of December 20, 1982, Pub. L. 97-372, 96 Stat. 1815, a roll is
to be prepared and used as the basis for the distribution of an
apportioned share of judgment funds awarded the Shawnee Tribe in dockets
64, 335, and 338 by the Indian Claims Commission and in docket 64-A by
the U.S. Court of Claims of all persons of Cherokee Shawnee ancestry:
(i) Who were living on December 20, 1982;
(ii) Who are lineal descendants of the Shawnee Nation as it existed
in 1854, based on the roll of the Cherokee Shawnee compiled pursuant to
the Act of March 2, 1889 (25 Stat. 994), or any other records acceptable
to the Secretary including eligibility to share in the distribution of
judgment funds awarded the Absentee Shawnee Tribe of Oklahoma on behalf
of the Shawnee Nation in Indian Claims Commission docket 334-B as a
Cherokee Shawnee descendant; and
(iii) Who are not members of the Absentee Shawnee Tribe of Oklahoma
or the Eastern Shawnee Tribe of Oklahoma.
(2) Application forms for enrollment must be filed with the Director,
Muskogee Area Office, Bureau of Indian Affairs, Federal Building,
Muskogee, Oklahoma 74401, by May 9, 1986. Application forms filed after
that date will be rejected for inclusion on the roll being prepared for
failure to file on time regardless of whether the applicant otherwise
meets the qualifications for enrollment.
(d) Miami Indians of Indiana. (1) Pursuant to section 3 of the Act
of December 21, 1982, Pub. L. 97-376, 96 Stat. 1828, a roll is to be
prepared and used as the basis for the distribution of an apportioned
share of judgment funds awarded the Miami Tribe of Oklahoma and the
Miami Indians of Indiana in dockets 124-B and 254 by the U.S. Court of
Claims of all persons of Miami Indian ancestry:
(i) Who were living on December 21, 1982;
(ii) Whose name or the name of a lineal ancestor appears on:
(A) The roll of Miami Indians of Oklahoma and Indiana prepared
pursuant to the Act of June 2, 1972 (86 Stat. 199), or
(B) The roll of Miami Indians of Indiana of June 12, 1895, or
(C) The roll of ''Miami Indians of Indiana, now living in Kansas,
Quapaw Agency, I.T., and Oklahoma Territory,'' prepared and completed
pursuant to the Act of March 2, 1895 (28 Stat. 903), or
(D) The roll of the Eel River Miami Tribe of Indians of May 27, 1889,
prepared and completed pursuant to the Act of June 29, 1888 (25 Stat.
223), or
(E) The roll of the Western Miami Tribe of Indians of June 12, 1891
(26 Stat. 1001); and
(iii) Who are not members of the Miami Tribe of Oklahoma.
(2) Application forms for enrollment must be filed with the Director,
Muskogee Area Office, Bureau of Indian Affairs, Federal Building,
Muskogee, Oklahoma 74401, by May 9, 1986. Application forms filed after
that date will be rejected for inclusion on the roll being prepared for
failure to file on time regardless of whether the applicant otherwise
meets the qualifications for enrollment.
(e) Cow Creek Band of Umpqua Tribe of Indians. (1) Pursuant to
section 5 of the Cow Creek Band of Umpqua Tribe of Indians Distribution
of Judgment Funds Act of October 26, 1987, Pub. L. 100-139, a tribal
membership roll is to be prepared comprised of all persons who are able
to establish that they are of Cow Creek or other Indian ancestry
indigenous to the United States based on any rolls or records acceptable
to the Secretary and were not members of any other Federally recognized
Indian tribe on July 30, 1987; and:
(i) Who are named on the tribal roll dated September 13, 1980, the
so-called Interrogatory No. 14 roll;
(ii) Who are descendants of individuals named on the tribal roll
dated September 13, 1980, the so-called Interrogatory No. 14 roll, and
were born on or prior to October 26, 1987; or
(iii) Who are descendants of individuals who were considered to be
members of the Cow Creek Band of Umpqua Tribe of Indians for the
purposes of the treaty entered between such Band and the United States
on September 19, 1853.
(2) Application forms for enrollment must be filed with the
Superintendent, Siletz Agency, Bureau of Indian Affairs, P.O. Box 539,
Siletz, Oregon 97380 by June 1, 1990. Application forms filed after
that date will be rejected for inclusion on the tribal membership roll
for failure to file on time regardless of whether the applicant
otherwise meets the qualifications for enrollment.
(f) Cow Creek Band of Umpqua Tribe of Indians descendants. (1)
Pursuant to section 6(a)(1) of the Cow Creek Band of Umpqua Tribe of
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L.
100-139, a roll of nontribal members eligible to participate in the
Higher Education and Vocational Training Program and the Housing
Assistance Program of the Cow Creek Band of Umpqua Tribe of Indians is
to be prepared of individuals:
(i) Who are descended from persons considered members of the Cow
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered
into between such band and the United States on September 19, 1853 (10
Stat. 1027), as ratified by the Senate on April 12, 1854; and
(ii) Who did not share or are not descendants of persons who shared
in the distribution of funds under the Act entitled ''An Act to provide
for the termination of Federal supervision over the property of the
Klamath Tribe of Indians located in the State of Oregon and the
individuals members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ''An Act to
provide for the termination of Federal supervision over the property of
certain tribes and bands of Indians located in western Oregon and the
individual members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 691 et seq.).
(2) Application forms for enrollment must be filed with the
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539,
Siletz, Oregon 97380. Upon receipt of an application form, the
Superintendent shall furnish a copy to the Cow Creek Band of Umpqua
Tribe of Indians.
(g) Cow Creek Band of Umpqua Tribe of Indians descendants. (1)
Pursuant to section 6(a)(2) of the Cow Creek Band of Umpqua Tribe of
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L.
100-139, a roll of nontribal members eligible to participate in the
Elderly Assistance Program of the Cow Creek Band of Umpqua Tribe of
Indians is to be prepared of individuals:
(i) Who are descended from persons considered members of the Cow
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered
into between such Band and the United States on September 19, 1853 (10
Stat. 1027), as ratified by the Senate on April 12, 1854;
(ii) Who did not share or are not descendants of persons who shared
in the distribution of funds under the Act entitled ''An act to provide
for the termination of Federal supervision over the property of the
Klamath Tribe of Indians located in the State of Oregon and the
individual members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ''An Act to
provide for the termination of Federal supervision over the property of
certain tribes and bands of Indians located in western Oregon and the
individual members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 691 et seq.); and
(iii) Who were 50 years or older as of December 31, 1985.
(2) Application forms for enrollment must be filed with the
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539,
Siletz, Oregon 97380 by April 25, 1988, and with the Cow Creek Band of
Umpqua Tribe of Indians. Application forms filed after that date will
be rejected for failure to file on time regardless of whether the
applicant otherwise meets the qualifications for eligibility for
inclusion on the roll of persons eligible to participate in the Elderly
Assistance Program, but will be considered for inclusion on the roll of
persons eligible to participate in the Higher Education and Vocation
Training Program and the Housing Assistance Program. Upon receipt of an
application form, the Superintendent shall furnish a copy to the Cow
Creek Band of Umpqua Tribe of Indians.
(h) Indians of the Hoopa Valley Indian Reservation. Pursuant to
section 5 of the Hoopa-Yurok Settlement Act of October 31, 1988, Pub.
L. 100-580, a roll of Indians of the Reservation eligible to participate
in certain settlement provisions is to be prepared of all persons:
(1) Who were born on or prior to and living on October 31, 1988; and
(2) Who are citizens of the United States; and
(3) Who were not, on August 8, 1988, enrolled members of the Hoopa
Valley Tribe; and
(4) Who meet the criteria to qualify as an ''Indian of the
Reservation'' under one of the following standards established by the
U.S. Court of Claims in its March 31, 1982, decision, and the United
States Claims Court in its May 14, 1987, and March 1, 1988, decisions in
the cases of Short v. United States, (Cl. Ct. No. 102-63):
(i) Standards A-E which are:
(A) Allottees of land on any part of the Reservation, living on
October 1, 1949, and lineal descendants of allottees living on October
1, 1949;
(B) Persons living on October 1, 1949, and resident on the
reservation at that time, who have received Reservation benefits or
services, and hold an assignment, or can make other proof that though
eligible to receive an allotment, they have not been allotted, and the
lineal descendants of such persons, living on October 1, 1949;
(C) Persons living on June 2, 1953, who have at least 1/4 degree
Reservation blood, as defined in paragraph (h)(6)(i) of this section,
have forebears born on the Reservation and were resident on the
Reservation for 15 years prior to June 2, 1953;
(D) Persons of at least 1/4 degree Indian blood, born after October
1, 1949, and before August 9, 1963, to a parent who is or would have
been, when alive a qualified Indian of the Reservation under the
standards in paragraphs (h)(4)(i) (A), (B) and (C) of this section, or
has previously been held entitled to recover in the Short cases;
(E) Persons born on or after August 9, 1963, who are of at least 1/4
degree Indian blood, derived exclusively from the qualified parent or
parents who is or would have been, when alive, a qualified Indian of the
Reservation under the standards in paragraphs (h)(4)(i) (A), (B) and (C)
of this section, or has previously been held entitled to recover in the
Short cases; or
(ii) Manifest Injustice Standard which is: Persons who do not
qualify under the standards in paragraph (h)(4)(i) of this section, but
who it would be manifestly unjust to exclude from enrollment. To
qualify under the manifest injustice standard, persons must adequately
demonstrate all of the following:
(A) A significant degree of Indian blood (at least 1/4 degree Indian
blood, and
(B) Personal connections to the Reservation shown through a
substantial period of residence on the Reservation (nearly ten years of
residence), and
(C) Personal ties to the land of the Reservation and/or ties to the
land through a lineal ancestor; and
(5) Who file or have filed on their behalf application forms for
enrollment with the Superintendent, Northern California Agency, Bureau
of Indian Affairs, P.O. Box 494879, Redding, California 96049, by April
10, 1989. Applications filed after that date will not be considered for
inclusion on the roll regardless of whether the applicant otherwise
meets the qualifications for enrollment, except for plaintiffs
determined to be an ''Indian of the Reservation'' in the Short cases,
who will, if they otherwise meet the requirements of the Act, be
included on the roll.
(6) As used in paragraph (h) of this section:
(i) Reservation blood means the blood of the following tribes or
bands: Yurok; Hoopa/Hupa; Grouse Creek;
Hunstand/Hoonsotton/Hoonsolton; Miskut/Miscotts/Miscolts;
Redwood/Chilula; Saiaz/Nongatl/Siahs; Sermaltion; South Fork;
Tish-tang-atan; Karok; Tolowa; Sinkyone/Sinkiene; Wailake/Wylacki;
Wiyot/Humboldt; and Wintun.
(ii) Short cases means the cases entitled Jessie Short et al. v.
United States, (Cl. Ct. No. 102-63); Charlene Ackley v. United States,
(Cl. Ct. No. 460-78); Bret Aastadt v. United States, (Cl. Ct. No.
146-85L); and Norman Giffen v. United States, (Cl. Ct. No. 746-85L).
(i) (Reserved)
(j) Coquille Tribe of Indians. (1) Pursuant to section 7 of the
Coquille Restoration Act of June 28, 1989, Pub. L. 101-42, a tribal
membership roll is to be prepared comprised of persons of Coquille
Indian ancestry:
(i) Who were born on or before and living on June 28, 1989;
(ii) Who possess at least one-eighth ( 1/8) degree or more Indian
blood;
(iii) Who are not enrolled members of another federally recognized
tribe; and
(iv) Whose names were listed on the Coquille roll prepared pursuant
to the Act of August 30, 1954 (68 Stat. 979; 25 U.S.C. 771), and
approved by the Bureau of Indian Affairs on August 29, 1960;
(v) Whose names were not listed on but who met the requirements to be
listed on the Coquille roll prepared pursuant to the Act of August 30,
1954, and approved by the Bureau of Indian Affairs on August 29, 1960;
or
(vi) Who are lineal descendants of persons, living or dead,
identified in paragraphs (j)(1)(iv) and (j)(1)(v) of this section.
(2) To establish eligibility for inclusion on the tribal membership
roll, all persons must file an application form with the Superintendent,
Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, Siletz, Oregon
97380 by January 10, 1991. Application forms filed after that date will
be rejected for inclusion on the roll being prepared for failure to file
on time regardless of whether the applicant otherwise meets the
qualifications for enrollment.
(3) For the purposes of establishing eligibility under paragraph (j)
of this section, any available evidence establishing Coquille ancestry
and the required degree of Indian blood shall be accepted. However,
information shown on the Coquille roll prepared pursuant to the Act of
August 30, 1954, shall be accepted as conclusive evidence of Coquille
ancestry and blood degree information shown on the January 1, 1940,
census roll of nonreservation Indians of the Grand Ronde-Siletz Agency
shall be accepted as conclusive evidence in determining degree of Indian
blood for applicants.
(4) For the purposes of establishing eligibility under paragraph (j)
of this section, persons who may be enrolled members of another
federally recognized tribe or tribes may submit a conditional
relinquishment of membership document in the other tribe or tribes with
their application forms. A conditional relinquishment of membership
document in the other tribe or tribes with their application forms. A
conditional relinquishment will be accepted by the Superintendent only
if it is executed by the person himself or herself unless the person is
legally incompetent, in which case the legal guardian and only the legal
guardian may execute the conditional relinquishment document. In the
case of minors, only the parent or legal guardian may execute a
conditional relinquishment document.
(k)-(q) (Reserved)
(r) Mdewakanton and Wahpakoota Tribe of Sioux Indians. (1) All
lineal descendants of the Mdewakanton and Wahpakoota Tribe of Sioux
Indians who were born on or prior to and were living on October 25,
1972, whose names or the name of a lineal ancestor appears on any
available records and rolls acceptable to the Secretary of the Interior
and who are not members of the Flandreau Santee Sioux Tribe of South
Dakota, the Santee Sioux Tribe of Nebraska, the Lower Sioux Indian
Community at Morton, Minn., the Prairie Island Indian Community at
Welch, Minn., or the Shakopee Mdewakanton Sioux Community of Minnesota
shall be entitled to be enrolled under title I, section 101(b) of the
act of October 25, 1972 (86 Stat. 1168), to share in the distribution of
funds derived from a judgment awarded the Mississippi Sioux Indians.
(2) Applications for enrollment must have been filed with the
Director, Aberdeen Area Office, Bureau of Indian Affairs, 820 South Main
Street, Aberdeen, S. Dak. 57401, and must have been received no later
than November 1, 1973. Applications received after that date will be
denied for failure to file in time regardless of whether the applicant
otherwise meets the requirements for enrollment.
(3) Each application for enrollment with any of the tribes named in
paragraph (r)(1) of this section which may be rejected by the tribes
shall be reviewed by the Director to determine whether the applicant
meets the requirements for enrollment as a descendant of the Mdewakanton
and Wahpakoota Tribe of Sioux Indians under paragraph (r)(1) of this
section. Each rejection notice issued by the tribes shall contain a
statement to the effect that the application is being given such review.
(s) Sisseton and Wahpeton Mississippi Sioux Tribe. (1) All lineal
descendants of the Sisseton and Wahpeton Mississippi Sioux Tribe who
were born on or prior to and were living on October 25, 1972, whose
names or the name of a lineal ancestor appears on any available records
and rolls acceptable to the Secretary of the Interior and who are not
members of the Devils Lake Sioux Tribe of North Dakota, the Sisseton and
the Wahpeton Sioux Tribe of South Dakota, or the Assiniboine and Sioux
Tribes of the Fort Peck Reservation shall be entitled to be enrolled
under title II, section 201(b) of the act of October 25, 1972 (86 Stat.
1168), to share in the distribution of certain funds derived from a
judgment awarded the Mississippi Sioux Indians.
(2) Applications for enrollment must have been filed with the
Director, Aberdeen Area Office, Bureau of Indian Affairs, 820 South Main
Street, Aberdeen, S. Dak. 57401, and must have been received no later
than November 1, 1973. Applications received after that date will be
denied for failure to file in time regardless of whether the applicant
otherwise meets the requirements for enrollment.
(3) Each application for enrollment with any of the tribes named in
paragraph (s)(1) of this section which may be rejected by the tribes
shall be reviewed by the Director to determine whether the applicant
meets the requirements for enrollment as a descendant of the Sisseton
and Wahpeton Mississippi Sioux Tribe under paragraph (s)(1) of this
section. Each rejection notice issued by the tribe shall contain a
statement to the effect that the application is being given such review.
(t)-(v) (Reserved)
(w) Lower Skagit Tribe of Indians. (1) All persons of Lower Skagit
ancestry born on or prior to and living on February 18, 1975, who are
lineal descendants of a member of the tribe as it existed in 1859 based
on the 1919 Roblin Roll and other records acceptable to the Assistant
Secretary, shall be entitled to have their names placed on the roll, to
be prepared and used as the basis to distribute the judgment funds
awarded the Lower Skagit Tribe in Indian Claims Commission docket 294.
Proof of Upper Skagit ancestry will not be acceptable as proof of Lower
Skagit ancestry.
(2) Applications for enrollment must have been filed with the
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby
Avenue, Everett, Washington 88201, and must have been received by close
of business on May 31, 1977. Applications received after that date will
be denied for failure to file in time regardless of whether the
applicant otherwise meets the requirements for enrollment.
(3) Payment of shares will be made in accordance with parts 87 and
115 of this chapter.
(x) Kikiallus Tribe of Indians. (1) All persons of Kikiallus
ancestry born on or prior to and living on February 18, 1975, who are
lineal descendants of a member of the tribe as it existed in 1859 based
on the 1919 Roblin Roll and other records acceptable to the Assistant
Secretary, shall be entitled to have their names placed on the roll, to
be prepared and used as the basis to distribute the judgment funds
awarded the Kikiallus Tribe in Indian Claims Commission docket 263.
(2) Applications for enrollment must have been filed with the
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby
Avenue, Everett, Washington 98021, and must have been received by close
of business on May 31, 1977. Applications received after that date will
be denied for failure to file in time regardless of whether the
applicant otherwise meets the requirements for enrollment.
(3) Payment of shares will be made in accordance with parts 87 and
115 of this chapter.
(y) Swinomish Tribe of Indians. (1) All persons of Swinomish
ancestry born on or prior to and living on December 10, 1975, who are
lineal descendants of a member of the tribe as it existed in 1859 based
on the 1919 Roblin Roll and other records acceptable to the Assistant
Secretary, shall be entitled to have their names placed on the roll, to
be prepared and used as the basis to distribute the judgment funds
awarded the Swinomish Tribe in Indian Claims Commission docket 233.
(2) Application for enrollment must have been filed with the
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby
Avenue, Everett, Washington 98201, and must have been received by close
of business on May 31, 1977. Applications received after that date will
be denied for failure to file in time regardless of whether the
applicant otherwise meets the requirements for enrollment.
(3) Payment of shares will be made in accordance with parts 87 and
115 of this chapter.
(z) Samish Tribe of Indians. (1) All persons of Samish ancestry born
on or prior to and living on December 10, 1975, who are lineal
descendants of a member of the tribe as it existed in 1859 based on any
records acceptable to the Secretary, shall be entitled to have their
names placed on the roll to be prepared and used as the basis to
distribute the judgment funds awarded the Samish Tribe in Indian Claims
Commission docket 261.
(2) Applications for enrollment must have been filed with the
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby
Avenue, Everett, Washington 98201, and must have been received by close
of business on May 31, 1977. Applicants received after that date will
be denied for failure to file in time regardless of whether the
applicant otherwise meets the requirements for enrollment.
(3) Payment of shares will be made in accordance with parts 87 and
115 of this chapter.
(50 FR 46430, Nov. 8, 1985, as amended at 53 FR 11272, Apr. 6, 1988;
54 FR 14193, Apr. 7, 1989; 55 FR 7494, Mar. 2, 1990; 55 FR 41519, Oct.
12, 1990; 56 FR 10806, Mar. 14, 1991)
25 CFR 61.5 Notices.
(a) The Director or Superintendent shall give notice to all Directors
of the Bureau of Indian Affairs and all Superintendents within the
jurisdiction of the Director, of the preparation of the roll for public
display in Bureau field offices. Reasonable efforts shall be made to
place notices for public display in community buildings, tribal
buildings, and Indian centers.
(b) The Director or Superintendent shall, on the basis of available
residence data, publish, and republish when advisable, notices of the
preparation of the roll in appropriate locales utilizing media suitable
to the circumstances.
(c) The Director or Superintendent shall, when applicable, mail
notices of the preparation of the roll to previous enrollees or tribal
members at the last address of record or in the case of tribal members,
the last address available.
(d) Notices shall advise of the preparation of the roll and the
relevant procedures to be followed including the qualifications for
enrollment and the deadline for filing application forms to be eligible
for enrollment. The notices shall also state how and where application
forms may be obtained as well as the name, address, and telephone number
of a person who may be contacted for further information.
25 CFR 61.6 Application forms.
(a) Application forms to be filed by or for applicants for enrollment
will be furnished by the Director, Superintendent, or other designated
persons, upon written or oral request. Each person furnishing
application forms shall keep a record of the names of individuals to
whom forms are given, as well as the control numbers of the forms and
the date furnished. Instructions for completing and filing applications
shall be furnished with each form. The form shall indicate prominently
the deadline for filing application forms.
(b) Among other information, each application form shall contain:
(1) Certification as to whether application form is for a natural
child or an adopted child of the parent through whom eligibility is
claimed.
(2) If the application form is filed by a sponsor, the name and
address of sponsor and relationship to applicant.
(3) A control number for the purpose of keeping a record of forms
furnished interested individuals.
(4) Certification that the information given on the application form
is true to the best of the knowledge and belief of the person filing the
application. Criminal penalties are provided by statute for knowingly
filing false information in such applications (18 U.S.C. 1001).
(c) Application forms may be filed by sponsors on behalf of other
persons.
(d) Every applicant or sponsor shall furnish the applicant's mailing
address on the application form. Thereafter, the applicant or sponsor
shall promptly notify the Director or Superintendent of any change in
address, giving appropriate identification of the application, otherwise
the mailing address as stated on the form shall be acceptable as the
address of record for all purposes under the regulations in this part
61.
25 CFR 61.7 Filing of application forms.
(a) Application forms filed by mail must be postmarked no later than
midnight on the deadline specified. Where there is no postmark date
showing on the envelope or the postmark date is illegible, application
forms mailed from within the United States, including Alaska and Hawaii,
received more than 15 days and application forms mailed from outside of
the United States received more than 30 days after the deadline
specified in the office of the designated Director or Superintendent,
will be denied for failure to file in time.
(b) Application forms filed by personal delivery must be received in
the office of the designated Director or Superintendent no later than
close of business on the deadline specified.
(c) If the deadline for filing application forms falls on a Saturday,
Sunday, legal holiday, or other nonbusiness day, the deadline will be
the next working day thereafter.
(d) The provisions of this section shall not apply in the preparation
of the rolls under paragraphs (r), (s), (w), (x), (y) and (z) of 61.4.
25 CFR 61.8 Verification forms.
If the Director or Superintendent is preparing a roll of Indians by
adding names of eligible persons to and deleting names of ineligible
persons from a previously approved roll, and individuals whose names
appear on the previously approved roll are not required to file
applications for enrollment, a verification form, to be completed and
returned, shall be mailed to each previous enrollee using the last
address of record. The verification form will be used to ascertain the
previous enrollee's current name and address and that the enrollee is
living, or if deceased, the enrollee's date of death. Name and/or
address changes will only be made if the verification form is signed by
an adult enrollee, if living, or the parent or guardian having legal
custody of a minor enrollee, or an authorized sponsor. The verification
form may also be used by any sponsor to notify the Director or
Superintendent of the date of death of a previous enrollee.
25 CFR 61.9 Burden of proof.
The burden of proof rests upon the applicant or tribal member to
establish eligibility for enrollment. Documentary evidence such as
birth certificates, death certificates, baptismal records, copies of
probate findings, or affidavits, may be used to support claim of
eligibility for enrollment. Records of the Bureau of Indian Affairs may
be used to establish eligibility.
25 CFR 61.10 Review of applications by tribal authorities.
(a) If tribal review is applicable, the Director or Superintendent
shall submit all applications to the Tribal Committee for review and
recommendations or determinations; except that, in the cases of adopted
persons where the Bureau of Indian Affairs has assured confidentiality
to obtain the information necessary to determine the eligibility for
enrollment of the individual or has the statutory obligation to maintain
the confidentiality of the information, the confidential information may
not be released to the Tribal Committee, but the Director or
Superintendent shall certify as to the eligibility for enrollment of the
individual to the Tribal Committee.
(b) The Tribal Committee shall review all applications and make its
recommendations or determinations in writing stating the reasons for
acceptance or rejection for enrollment.
(c) The Tribal Committee shall return the applications to the
Director or Superintendent with its recommendations or determinations
and any additional evidence used in determining eligibility for
enrollment within 30 days of receipt of the applications by the Tribal
Committee. The Director or Superintendent may grant the Tribal
Committee additional time, upon request, for its review.
(d) Acceptance of an individual for enrollment by the Tribal
Committee does not insure the individual's eligibility to share in the
distribution of the judgment funds.
25 CFR 61.11 Action by the Director or Superintendent.
(a) The Director or Superintendent shall consider each application,
all documentation, and when applicable, tribal recommendations or
determinations.
(b) The Director or Superintendent, when tribal recommendations or
determinations are applicable, shall accept the recommendations or
determinations of the Tribal Committee unless clearly erroneous.
(1) If the Director or Superintendent does not accept the tribal
recommendation or determination, the Tribal Committee shall be notified
in writing, by certified mail, return receipt requested, or by personal
delivery, of the action and the reasons therefor.
(2) The Tribal Committee may appeal the decision of the Director or
Superintendent not to accept the tribal recommendation or determination.
Such appeal must be in writing and must be filed pursuant to part 62 of
this chapter.
(3) Unless otherwise specified by law or in a tribal governing
document, the determination of the Director or Superintendent shall only
affect the individual's eligibility to share in the distribution of
judgment funds.
(c) The Director or Superintendent, upon determining an individual's
eligibility, shall notify the individual, parent or guardian having
legal custody of a minor, or sponsor, as applicable, in writing of the
decision. If an individual files applications on behalf of more than
one person, one notice of eligibility or adverse action may be addressed
to the person who filed the applications. However, the notice must list
the name of each person involved. Where an individual is represented by
a sponsor, notification of the sponsor of eligibility or adverse action
shall be considered to be notification of the individual.
(1) If the Director or Superintendent determines that the individual
is eligible, the name of the individual shall be placed on the roll.
(2) If the Director or Superintendent determines that the individual
is not eligible, he/she shall notify the individual's parent or guardian
having legal custody of a minor, or sponsor, as applicable, in writing
by certified mail, to be received by the addressee only, return receipt
requested, and shall explain fully the reasons for the adverse action
and the right to appeal to the Secretary. If correspondence is sent out
of the United States, registered mail will be used. If a certified or
registered notice is returned as ''Unclaimed'' the Director or
Superintendent shall remail the notice by regular mail together with an
acknowledgment of receipt form to be completed by the addressee and
returned to the Director or Superintendent. If the acknowledgment of
receipt is not returned, computation of the appeal period shall begin on
the date the notice was remailed. Certified or registered notices
returned for any reason other than ''Unclaimed'' need not be remailed.
(d) Except as provided in paragraph (c)(2) of this section, a notice
of adverse action is considered to have been made and computation of the
appeal period shall begin on the earliest of the following dates:
(1) Of delivery indicated on the return receipt;
(2) Of acknowledgment of receipt;
(3) Of personal delivery; or
(4) Of the return by the post office of an undelivered certified or
registered letter.
(e) In all cases where an applicant is represented by an attorney,
the attorney shall be recognized as fully controlling the application on
behalf of the applicant and service on the attorney of any document
relating to the application shall be considered to be service on the
applicant. Where an applicant is represented by more than one attorney,
service upon one of the attorneys shall be sufficient.
(f) To avoid hardship or gross injustice, the Director or
Superintendent may waive technical deficiencies in applications or other
submissions. Failure to file by the deadline does not constitute a
technical deficiency.
25 CFR 61.12 Appeals.
Appeals from or on behalf of tribal members or applicants who have
been denied enrollment must be in writing and must be filed pursuant to
part 62 of this chapter. When the appeal is on behalf of more than one
person, the name of each person must be listed in the appeal. A copy of
part 62 of this chapter shall be furnished with each notice of adverse
action.
25 CFR 61.13 Decision of the Assistant Secretary on appeals.
The decision of the Assistant Secretary on an appeal shall be final
and conclusive and written notice of the decision shall be given the
individual, parent or guardian having legal custody of a minor, or
sponsor, as applicable. The name of any person whose appeal has been
sustained will be added to the roll. Unless otherwise specified by law
or in a tribal governing document, the determination of the Assistant
Secretary shall only affect the individual's eligibility to share in the
distribution of the judgment funds.
25 CFR 61.14 Preparation, certification and approval of the roll.
(a) The staff officer shall prepare a minimum of five copies of the
roll of those persons determined to be eligible for enrollment. The
roll shall contain for each person a roll number, name, address, sex,
date of birth, date of death, when applicable, and when required by law,
degree of Indian blood, and, in the remarks column, when applicable, the
basic roll number, date of the basic roll, name and relationship of
ancestor on the basic roll through whom eligibility was established.
(b) A certificate shall be attached to the roll by the staff officer
or Superintendent certifying that to the best of his/her knowledge and
belief the roll contains only the names of those persons who were
determined to meet the qualifications for enrollment.
(c) The Director shall approve the roll.
25 CFR 61.15 Special instructions.
To facilitate the work of the Director or Superintendent, the
Assistant Secretary may issue special instructions not inconsistent with
the regulations in this part 61.
25 CFR 61.15 PART 62 -- ENROLLMENT APPEALS
Sec.
62.1 Definitions.
62.2 Purpose.
62.3 Information collection.
62.4 Who may appeal.
62.5 An appeal.
62.6 Filing of an appeal.
62.7 Burden of proof.
62.8 Advising the tribal committee.
62.9 Action by the Superintendent.
62.10 Action by the Director.
62.11 Action by the Assistant Secretary.
62.12 Special instructions
Authority: 5 U.S.C. 301, 25 U.S.C. 2 and 9.
Source: 52 FR 30160, Aug. 13, 1987, unless otherwise noted.
25 CFR 62.1 Definitions.
As used in these regulations:
Assistant Secretary means the Assistant Secretary of the Interior for
Indian Affairs or an authorized representative acting under delegated
authority.
Bureau means the Bureau of Indian Affairs of the Department of the
Interior.
Commissioner means the Commissioner of Indian Affairs or an
authorized representative acting under delegated authority.
Department means the Department of the Interior.
Director means the Area Director of the Bureau of Indian Affairs area
office which has administrative jurisdiction over the local field office
responsible for administering the affairs of a tribe, band, or group of
Indians or an authorized representative acting under delegated
authority.
Secretary means the Secretary of the Interior or an authorized
representative acting under delegate authority.
Sponsor means any authorized person, including an attorney, who files
an appeal on behalf of another person.
Superintendent means the official or other designated representative
of the Bureau of Indian Affairs in charge of the field office which has
immediate administrative responsibility with respect to the affairs of a
tribe, band, or group of Indians or an authorized representative acting
under delegated authority.
Tribal Committee means the body of a federally recognized tribal
entity vested with final authority to act on enrollment matters.
Tribal governing document means the written organizational statement
governing a tribe, band or group of Indians and/or any valid document,
enrollment ordinance or resolution enacted thereunder.
Tribal member means a person who meets the requirements for
enrollment in a tribal entity and has been duly enrolled.
25 CFR 62.2 Purpose.
(a) The regulations in this part are to provide procedures for the
filing and processing of appeals from adverse enrollment actions by
Bureau officials.
(b) The regulations in this part are not applicable and do not
provide procedures for the filing of appeals from adverse enrollment
actions by tribal committees, unless:
(1) The adverse enrollment action is incident to the preparation of a
tribal roll subject to Secretarial approval; or
(2) An appeal to the Secretary is provided for in the tribal
governing document.
25 CFR 62.3 Information collection.
In accordance with the Office of Management and Budget regulations
contained in 5 CFR 1320.3, approval of the information collection
requirements contained in this part is not required.
25 CFR 62.4 Who may appeal.
(a) A person who is the subject of an adverse enrollment action may
file or have filed on his/her behalf an appeal. An adverse enrollment
action is:
(1) The rejection of an application for enrollment by a Bureau
official incident to the preparation of a roll for Secretarial approval;
(2) The removal of a name from a tribal roll by a Bureau official
incident to review of the roll for Secretarial approval;
(3) The rejection of an application for enrollment or the
disenrollment of a tribal member by a tribal committee when the tribal
governing document provides for an appeal of the action to the
Secretary;
(4) The change in degree of Indian blood by a tribal committee which
affects a tribal member when the tribal governing document provides for
an appeal of the action to the Secretary;
(5) The change in degree of Indian blood by a Bureau official which
affects an individual; and
(6) The certification of degree of Indian blood by a Bureau official
which affects an individual.
(b) A tribal committee may file an appeal as provided for in 61.11
of this chapter.
(c) A sponsor may file an appeal on behalf of another person who is
subject to an adverse enrollment action.
25 CFR 62.5 An appeal.
(a) An appeal must be in writing and must be filed with the Bureau
official designated in the notification of an adverse enrollment action,
or in the absence of a designated official, with the Bureau official who
issued the notification of an adverse enrollment action; or when the
notification of an adverse action is made by a tribal committee with the
Superintendent.
(b) An appeal may be on behalf of more than one person. However, the
name of each appellant must be listed in the appeal.
(c) An appeal filed by mail or filed by personal delivery must be
received in the office of the designated Bureau official or of the
Bureau official who issued the notification of an adverse enrollment
action by close of business within 30 days of the notification of an
adverse enrollment action, except when the appeal is mailed from outside
the United States, in which case the appeal must be received by the
close of business within 60 days of the notification of an adverse
enrollment action.
(d) The appellant or sponsor shall furnish the appellant's mailing
address in the appeal. Thereafter, the appellant or sponsor shall
promptly notify the Bureau official with whom the appeal was filed of
any change of address, otherwise the address furnished in the appeal
shall be the address of record.
(e) An appellant or sponsor may request additional time to submit
supporting evidence. A period considered reasonable for such
submissions may be granted by the Bureau official with whom the appeal
is filed. However, no additional time will be granted for the filing of
the appeal.
(f) In all cases where an appellant is represented by a sponsor, the
sponsor shall be recognized as fully controlling the appeal on behalf of
the appellant. Service of any document relating to the appeal shall be
on the sponsor and shall be considered to be service on the appellant.
Where an appellant is represented by more than one sponsor, service upon
one of the sponsors shall be sufficient.
25 CFR 62.6 Filing of an appeal.
(a) Except as provided in paragraph (b) of this section, a
notification of an adverse enrollment action will be mailed to the
address of record or the last available address and will be considered
to have been made and computation of the appeal period shall begin on:
(1) The date of delivery indicated on the return receipt when notice
of the adverse enrollment action has been sent by certified mail, return
receipt requested; or
(2) Ten (10) days after the date of the decision letter to the
individual when notice of the adverse enrollment action has not been
sent by certified mail return receipt requested and the letter has not
been returned by the post office; or
(3) The date the letter is returned by the post office as undelivered
whether the notice of the adverse enrollment action has been sent by
certified mail return receipt requested or by regular mail.
(b) When notification of an adverse enrollment action is under the
regulations contained in part 61 of this chapter, computation of the
appeal period shall be in accordance with 61.11.
(c) In computing the 30 or 60 day appeal period, the count begins
with the day following the notification of an adverse enrollment action
and continues for 30 or 60 calendar days. If the 30th or 60th day falls
on a Saturday, Sunday, legal holiday, or other nonbusiness day, the
appeal period will end on the first working day thereafter.
25 CFR 62.7 Burden of proof.
(a) The burden of proof is on the appellant or sponsor. The appeal
should include any supporting evidence not previously furnished and may
include a copy or reference to any Bureau or tribal records having a
direct bearing on the action.
(b) Criminal penalties are provided by statute for knowingly filing
false or fraudulent information to an agency of the U.S. government (18
U.S.C. 1001).
25 CFR 62.8 Advising the tribal committee.
Whenever applicable, the Superintendent or Director shall notify the
tribal committee of the receipt of the appeal and shall give the tribal
committee the opportunity to examine the appeal and to present such
evidence as it may consider pertinent to the action being appealed. The
tribal committee shall have not to exceed 30 days from receipt of
notification of the appeal in which to present in writing such
statements as if may deem pertinent, supported by any tribal records
which have a bearing on the case. The Director or Superintendent may
grant the tribal committee additional time, upon request, for its
review.
25 CFR 62.9 Action by the Superintendent.
When an appeal is from an adverse enrollment action taken by a
Superintendent or tribal committee, the Superintendent shall acknowledge
in writing receipt of the appeal and shall forward the appeal to the
Director together with any relevant information or records; the
recommendations of the tribal committee, when applicable; and his/her
recommendations on the appeal.
25 CFR 62.10 Action by the Director.
(a) Except as provided in paragraph (c) of this section, when an
appeal is from an adverse enrollment action taken by a Superintendent or
tribal committee, the Director will consider the record as presented
together with such additional information as may be considered
pertinent. Any additional information relied upon shall be specifically
identified in the decision. The Director shall make a decision on the
appeal which shall be final for the Department and which shall so state
in the decision. The appellant or sponsor will be notified in writing
of the decision. Provided that, the Director may waive his/her
authority to make a final decision and forward the appeal to the
Assistant Secretary for final action.
(b) When an appeal is from an adverse enrollment action taken by a
Director, the Director shall acknowledge in writing receipt of the
appeal and shall forward the appeal to the Assistant Secretary for final
action together with any relevant information or records; the
recommendations of the tribal committee, when applicable; and his/her
recommendations.
(c) The Director shall forward the appeal to the Assistant Secretary
for final action together with any relevant information or records; the
recommendations of the tribal committee, when applicable; and his/her
recommendations when the adverse enrollment action which is being
appealed is either:
(1) The change in degree of Indian blood by a tribal committee which
affects a tribal member and the tribal governing document provides for
an appeal of the action to the Secretary; or
(2) The change in degree of Indian blood by a Bureau official which
affects an individual.
25 CFR 62.11 Action by the Assistant Secretary.
The Assistant Secretary will consider the record as presented,
together with such additional information as may be considered
pertinent. Any additional information relied upon shall be specifically
identified in the decision. The Assistant Secretary shall make a
decision on the appeal which shall be final for the Department and which
shall so state in the decision. The appellant or sponsor will be
notified in writing of the decision.
25 CFR 62.12 Special instructions.
To facilitate the work of the Director, the Assistant Secretary may
issue special instructions not inconsistent with the regulations in this
part 62.
25 CFR 62.12 PART 65 -- PREPARATION OF A MEMBERSHIP ROLL OF DELAWARE
INDIANS OF WESTERN OKLAHOMA
Sec.
65.1 Definitions.
65.2 Purpose.
65.3 Qualifications for enrollment and the deadline for filing.
65.4 Notices and application forms.
65.5 Filing of applications.
65.6 Burden of proof.
65.7 Action by the Tribe.
65.8 Action by the Superintendent.
65.9 Appeals.
65.10 Decision of the Secretary on appeals.
65.11 Preparation of roll.
65.12 Certification and approval of the roll.
65.13 Special instructions.
Authority: 5 U.S.C. 301; R.S. secs. 463 and 465; 25 U.S.C. 2 and
9, and sec. 10, Pub. L. 96-318, 94 Stat. 968, 971.
Source: 45 FR 82919, Dec. 17, 1980, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 65.1 Definitions.
As used in these regulations:
(a) 1980 Act means the Act of Congress approved August 1, 1980 (94
Stat. 968), Pub. L. 96-318, which authorizes and directs the Secretary
to prepare rolls of persons who meet the requirements specified in the
Act and to distribute certain judgment funds to such persons.
(b) Secretary means the Secretary of the Interior or his/her
authorized representative.
(c) Assistant Secretary means the Assistant Secretary of the Interior
for Indian Affairs or his/her authorized representative.
(d) Director means the Area Director, Anadarko Area Office, Bureau of
Indian Affairs or his/her authorized representative.
(e) Superintendent means the Superintendent, Anadarko Agency, Bureau
of Indian Affairs or his/her authorized representative.
(f) Staff Officer means the Enrollment Officer or other person
authorized to prepare the roll.
(g) Tribe means the Delaware Tribe of Western Oklahoma.
(h) Tribal Executive Committee means the governing body of the
Delaware Tribe of Western Oklahoma.
(i) Tribal Membership Committee means the tribal committee
responsible for preparing and maintaining the tribal membership roll.
(j) Tribal Membership Roll means the list of names of persons who the
tribe recognizes as members.
(k) Tribal Member means a person who has been enrolled by the tribe
and whose name appears on the tribal membership roll.
(l) Living means born or prior to and living on the date specified.
(m) Lineal descendants means those persons who are the issue of the
ancestor through whom enrollment rights are claimed, namely the
children, grandchildren, etc. It does not include collateral relatives
such as brothers, sisters, nieces, nephews, cousins, etc.
(n) Constitution and Bylaws means the written organizational
framework for the governing of the tribe.
(o) Sponsor means parent, recognized guardian, next friend, next of
kin, spouse, executor or administrator of estate, the Superintendent, or
other person who files an application for enrollment or appeal on behalf
of another person. Where an adult or guardian having custody of a minor
authorizes a sponsor to act on behalf of an individual, that sponsor
assumes the burden of proof of eligibility and will be recognized as
fully representative of the applicant in all matters arising under this
part. Service on the sponsor of any document relating to the
application or appeal shall be considered to be service on the
individual.
(p) 1968 enrollee means an individual whose name appeared on the roll
of persons eligible to share in the distribution of certain judgment
funds prepared pursuant to the Act of Congress approved September 21,
1968 (82 Stat. 861), Pub. L. 90-508, who established eligibility on the
basis that his/her name or the name of a lineal ancestor was on or was
eligible to be on the constructed base census roll as of 1940 of the
Absentee Delaware Tribe of Western Oklahoma, approved by the Secretary.
(q) 1972 enrollee means an individual whose name appeared on the roll
of persons eligible to share in the distribution of certain judgment
funds prepared pursuant to the Act of Congress approved October 3, 1972
(86 Stat. 762), Pub. L. 92-456, who established eligibility on the
basis that his/her name or the name of a lineal ancestor was on or was
eligible to be on the constructed base census roll as of 1940 of the
Absentee Delaware Tribe of Western Oklahoma, approved by the Secretary.
25 CFR 65.2 Purpose.
The regulations in this part are to govern the compilation of a
membership roll of persons who meet the requirements specified in
section 4 of the 1980 Act to serve as the basis for distributing
judgment funds awarded the Delaware Tribe of Indiana and the Absentee
Delaware Tribe of Western Oklahoma in Indian Claims Commission dockets
27-A and 241, 289, and 27-B and 338, 27-E and 202, and 27.
25 CFR 65.3 Qualifications for enrollment and the deadline for filing.
(a) The membership roll shall contain the names of persons living on
August 1, 1980, who are citizens of the United States; and whose names
appear on the tribal membership roll of the Delaware Tribe of Western
Oklahoma, i.e., they meet the following requirements:
(1) The criteria specified in Article III of the constitution and
bylaws of the Delaware Tribe of Western Oklahoma which states, in part:
Section 1. The membership of the Delaware Tribe of Western Oklahoma
shall consist of the following persons; provided they have not received
land or money by virtue of having been enrolled as a member of another
Indian tribe:
(a) Those persons who prior to the ratification of this amendment
(December 24, 1975) qualified for membership under previous membership
requirements.
(b) All persons of Delaware Indian blood who received an allotment of
land pursuant to the provisions of the Act of March 2, 1895 (28 Stat.
876), shall be included as full blood members of the tribe.
(c) All living lineal descendants of individuals eligible for
membership under the provisions of Section 1(b) and Section 2 of the
Article, who possess at least one-eighth ( 1/8) degree Delaware Indian
blood and one of whose natural parents is a member of the Delaware Tribe
of Western Oklahoma.
(d) All persons born on or after the effective date of the
Constitution and Bylaws, (December 24, 1975) both of whose natural
parents are members of the Delaware Tribe of Western Oklahoma regardless
of Delaware Indian blood.
Section 2. All persons identified in Section 1(b) of this Article
shall be considered as possessing 4/4ths degree Delaware Indian blood
for the purpose of computing eligibility of their descendants for
membership under Section 1(c) or 1(d) of this Article. Brothers and
sisters of Delaware Indian blood of all persons identified in Section
1(b) shall likewise be considered as possessing 4/4ths degree Delaware
Indian blood.
(2) They are adopted into membership by the tribe pursuant to any
ordinance or resolution adopted by the tribe in accordance with Article
III, Section 5 of the constitution and bylaws, and approved by the
Secretary or his/her authorized representative.
(b) They file an application with the Superintendent, Anadarko
Agency, Anadarko, Oklahoma 73005. Applications must be received by the
Superintendent no later than close of business on March 17, 1981.
Applications received after that date will be denied for inclusion on
the roll being prepared for failure to file on time regardless of
whether the applicant otherwise meets the requirements for enrollment.
However, persons denied for late-filed applications may be considered
for enrollment as members of the tribe for future purposes. If the
filing deadline falls on a Saturday, Sunday, legal holiday or other
nonbusiness day, the deadline will be the next working day thereafter.
Except that current tribal members shall not be required to file
applications in accordance with this paragraph.
25 CFR 65.4 Notices and application forms.
(a) The Director shall mail to each 1968 enrollee and/or 1972
enrollee at the last address of record a notice advising them of the
preparation of rolls of Delaware Indians pursuant to the 1980 Act, the
requirements for enrollment, and the need to file or have filed on their
behalf a completed application form before the deadline specified in
65.3 in order to be eligible to share in the distribution of judgment
funds. The notice shall also state how and where application forms may
be obtained.
(b) Application forms to be filed by applicants for enrollment will
be furnished by the Superintendent, or other designated persons, upon
written or oral request. Each person furnishing application forms shall
keep a record of the names of individuals to whom applications are
given, as well as the control numbers of the forms and the date
furnished. Instructions for completing and filing applications shall be
furnished with each form. The form shall indicate prominently the
deadline for filing applications.
(c) Among other information, each application shall contain:
(1) Certification as to whether the application is for a natural
child or an adopted child of the parent through whom eligibility is
claimed.
(2) If the application is filed by a sponsor, the name and address of
sponsor and relationship to applicant.
(3) A control number for the purpose of keeping a record of
applications furnished interested individuals.
25 CFR 65.5 Filing of applications.
(a) Any person not already a tribal member who desires to be enrolled
and who believes he/she meets the requirements for enrollment specified
in the 1980 Act and the regulations in this part, including any person
who has previously been denied enrollment by the Tribal Membership
Committee, must file or have filed for them a completed application form
with the Superintendent or other designated person on or before the
deadline specified in 65.
(b) Written application forms for minors, mentally incompetent
persons or other persons in need of assistance, for members of the Armed
Services or other services of the U.S. Government and/or members of
their families stationed in Alaska, Hawaii, or elsewhere outside the
continental United States, or for a person who died after June 12, 1979,
may be filed by the sponsor on or before the deadline.
(c) Every applicant or sponsor shall furnish the applicant's mailing
address on the application. Thereafter, he/she shall promptly notify
the Superintendent of any change in address, giving appropriate
identification of the application, otherwise the address as stated shall
be acceptable as the proper address.
(d) Criminal penalties are provided by statute for knowingly filing
false information in such applications (18 U.S.C. 1001).
25 CFR 65.6 Burden of proof.
The burden of proof of eligibility for enrollment rests upon the
person filing the application. Documentary evidence such as birth
certificates, death certificates, baptismal records, copies of probate
findings or affidavits must be used to support claims for enrollment.
Records of the Bureau of Indian Affairs may also be used to establish
eligibility.