31 CFR 535.441 Subpart E -- Licenses, Authorizations and Statements of Licensing Policy
31 CFR 535.502 Effect of license or authorization.
(a) No license or other authorization contained in this part or
otherwise issued by or under the direction of the Secretary of the
Treasury pursuant to section 203 of the International Emergency Economic
Powers Act, shall be deemed to authorize or validate any transaction
effected prior to the issuance thereof, unless such license or other
authorization specifically so provides.
(b) No regulation, ruling, instruction, or license authorizes a
transaction prohibited under this part unless the regulation, ruling,
instruction, or license is issued by the Treasury Department and
specifically refers to this part. No regulation, ruling, instruction or
license referring to this part shall be deemed to authorize any
transaction prohibited by any provision of parts 500, 505, 515, 520 or
530 of this chapter unless the regulation, ruling, instruction or
license specifically refers to such provision.
(c) Any regulation, ruling, instruction or license authorizing a
transaction otherwise prohibited under this part has the effect of
removing a prohibition or prohibitions in subpart B from the
transaction, but only to the extent specifically stated by its terms.
Unless the regulation, ruling, instruction or license otherwise
specifies, such an authorization does not create any right, duty,
obligation, claim, or interest in, or with respect to, any property
which would not otherwise exist under ordinary principles of law.
(44 FR 66833, Nov. 21, 1979, as amended at 44 FR 75353, Dec. 19,
1979)
31 CFR 535.503 Exclusion from licenses and authorizations.
The Secretary of the Treasury reserves the right to exclude any
person from the operation of any license or from the privileges therein
conferred or to restrict the applicability thereof with respect to
particular persons, transactions or property or classes thereof. Such
action shall be binding upon all persons receiving actual notice or
constructive notice thereof.
(44 FR 66833, Nov. 21, 1979)
31 CFR 535.504 Certain judicial proceedings with respect to property of
Iran or Iranian entities.
(a) Subject to the limitations of paragraphs (b) and (c) of this
section and 535.222, judicial proceedings are authorized with respect
to property in which on or after 8:10 a.m., e.s.t., November 14, 1979,
there has existed an interest of Iran or an Iranian entity.
(b) This section does not authorize:
(1) Any pre-judgment attachment or any other proceeding of similar or
analogous effect pertaining to any property (and any income earned
thereon) subject to the provisions of 535.211, 535.212, 535.213,
535.214 or 535.215 on January 19, 1981, including, but not limited to, a
temporary restraining order or preliminary injunction, which operates as
a restraint on property, for purposes of holding it within the
jurisdiction of a court, or otherwise;
(2) Any payment or delivery out of a blocked account based upon a
judicial proceeding, pertaining to any property subject to the
provisions of 535.211, 535.212, 535.213, 535.214 or 535.215 on January
19, 1981;
(3)(i) Any final judicial judgment or order (A) permanently
enjoining, (B) terminating or nullifying, or (C) otherwise permanently
disposing of any interest of Iran in any standby letter of credit,
performance bond or similar obligation. Any license authorizing such
action is hereby revoked and withdrawn. This revocation and withdrawal
of prior licenses prohibits judgments or orders that are within the
terms of this paragraph (b)(3)(i), including any such judgments or
orders which may have been previously entered but which had not become
final by July 2, 1982, through the conclusion of appellate proceedings
or the expiration of the time for appeal.
(ii) Nothing in this paragraph (b)(3) shall prohibit the assertion of
any defense, set-off or counterclaim in any pending or subsequent
judicial proceeding commenced by the Government of Iran, any political
subdivision of Iran, or any agency, instrumentality or entity owned or
controlled by the Government of Iran or any political subdivision
thereof.
(iii) Nothing in this paragraph (b)(3) shall preclude the
commencement of an action for the purpose of tolling the period of
limitations for commencement of such action.
(iv) Nothing in this paragraph (b)(3) shall require dismissal of any
action for want of prosecution.
(c) For purposes of this section, contested and contingent
liabilities and property interests of the Government of Iran, its
agencies, instrumentalities, or controlled entities, including debts,
shall be deemed to be subject to 535.215.
(d) A judicial proceeding is not authorized by this section if it is
based on transactions which violated the prohibitions of this part.
(e) Judicial proceedings to obtain attachments on standby letters of
credit, performance bonds or similar obligations and on substitute
blocked accounts established under 535.568 relating to standby letters
of credit, performance bonds and similar obligations are not authorized
or licensed.
(Secs. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44
FR 65729; E.O. 12205, 45 FR 24099; E.O. 12211, 45 FR 26685; E.O.
12276, 46 FR 7913; E.O. 12279, 46 FR 7919; E.O. 12280, 46 FR 7921;
E.O. 12281, 46 FR 7923; E.O. 12282, 46 FR 7925; E.O. 12283, 46 FR
7927, and E.O. 12294, 46 FR 14111)
(46 FR 14336, Feb. 26, 1981, as amended at 46 FR 26477, May 13, 1981;
47 FR 29529, July 7, 1982; 47 FR 55482, Dec. 10, 1982; 48 FR 57129,
Dec. 28, 1983)
31 CFR 535.508 Payments to blocked accounts in domestic banks.
(a) Any payment or transfer of credit, including any payment or
transfer by any U.S.-owned or controlled foreign firm or branch to a
blocked account in a domestic bank in the name of Iran or any Iranian
entity is hereby authorized: Provided, Such payment or transfer shall
not be made from any blocked account if such payment or transfer
represents, directly or indirectly, a transfer of the interest of Iran
or an Iranian entity to any other country or person.
(b) This section does not authorize:
(1) Any payment or transfer to any blocked account held in a name
other than that of Iran or the Iranian entity who is the ultimate
beneficiary of such payment or transfer; or
(2) Any foreign exchange transaction including, but not by way of
limitation, any transfer of credit, or payment of an obligation,
expressed in terms of the currency of any foreign country.
(c) This section does not authorize any payment or transfer of credit
comprising an integral part of a transaction which cannot be effected
without the subsequent issuance of a further license.
(d) This section does not authorize the crediting of the proceeds of
the sale of securities held in a blocked account or a sub-account
thereof, or the income derived from such securities to a blocked account
or sub-account under any name or designation which differs from the name
or designation of the specific blocked account or sub-account in which
such securities were held.
(e) This section does not authorize any payment or transfer from a
blocked account in a domestic bank to a blocked account held under any
name or designation which differs from the name or designation of the
specified blocked account or sub-account from which the payment or
transfer is made.
(f) The authorization in paragraph (a) of this section is subject to
the condition that a notification from the domestic bank receiving an
authorized payment or transfer is furnished by the transferor to the
Office of Foreign Assets Control confirming that the payment or transfer
has been deposited in a blocked account under the regulations in this
part and providing the name and address of Iran or the Iranian entity in
whose name the account is held.
(44 FR 66590, Nov. 20, 1979)
31 CFR 535.528 Certain transactions with respect to Iranian patents,
trademarks and copyrights authorized.
(a) The following transactions by any person subject to the
jurisdiction of the United States are authorized:
(1) The filing and prosecution of any application for an Iranian
patent, trademark or copyright, or for the renewal thereof;
(2) The receipt of any Iranian patent, trademark or copyright;
(3) The filing and prosecution of opposition or infringement
proceedings with respect to any Iranian patent, trademark, or copyright,
and the prosecution of a defense to any such proceedings;
(4) The payment of fees currently due to the government of Iran,
either directly or through an attorney or representative, in connection
with any of the transactions authorized by paragraphs (a)(1), (2), and
(3) of this section or for the maintenance of any Iranian patent,
trademark or copyright; and
(5) The payment of reasonable and customary fees currently due to
attorneys or representatives in Iran incurred in connection with any of
the transactions authorized by paragraphs (a)(1), (2), (3) or (4) of
this section.
(b) Payments effected pursuant to the terms of paragraphs (a)(4) and
(5) of this section may not be made from any blocked account.
(c) As used in this section the term ''Iranian patent, trademark, or
copyright'' shall mean any patent, petty patent, design patent,
trademark or copyright issued by Iran.
(45 FR 29288, May 2, 1980)
31 CFR 535.531 Payment of certain checks and drafts.
(a) A bank subject to the jurisdiction of the United States is hereby
authorized to make payments from blocked accounts with such banking
institution of checks and drafts drawn or issued prior to the effective
date, Provided, That:
(1) The amount involved in any one payment, acceptance, or debit does
not exceed $3000; or
(2) The check or draft was within the United States in process of
collection by a domestic bank on or prior to the effective date and does
not exceed $50,000.
(3) The authorization contained in this paragraph shall expire at the
close of business on January 14, 1980.
(b) A bank subject to the jurisdiction of the United States as its
own obligation may make payment to a person subject to the jurisdiction
of the United States who is the beneficiary of any letter of credit
issued or confirmed by it, or on a draft accepted by it, prior to the
effective date, where the letter of credit was issued or confirmed on
behalf of Iran or an Iranian entity, Provided, That:
(1) Notwithstanding the provisions of 535.902, no blocked account
may at any time be debited in connection with such a payment.
(2) Such a payment shall give the bank making payment no special
priority or other right to blocked accounts it holds in the event that
such blocked accounts are vested or otherwise lawfully used in
connection with a settlement of claims.
(3) Nothing in this paragraph prevents payment being made to the
beneficiary of any draft or letter of credit or to any banking
institution pursuant to 535.904.
(c) The office will consider on a case-by-case basis, without any
commitment on its part to authorize any transaction or class of
transactions, applications for specific licenses to make payments from
blocked accounts of documentary drafts drawn under irrevocable letters
of credit issued or confirmed by a domestic bank prior to the effective
date, in favor of any person subject to the jurisdiction of the United
States. Any bank or payee submitting such an application should include
data on all such letters of credit in which it is involved.
Applications should be submitted not later than January 10, 1980.
(d) Paragraphs (a) and (b) of this section do not authorize any
payment to Iran or an Iranian entity except payments into a blocked
account in a domestic bank unless Iran or the Iranian entity is
otherwise licensed to receive such payment.
(44 FR 75352, Dec. 19, 1979)
31 CFR 535.532 Completion of certain securities transactions.
(a) Banking institutions within the United States are hereby
authorized to complete, on or before November 21, 1979, purchases and
sales made prior to the effective date of securities purchased or sold
for the account of Iran or an Iranian entity provided the following
terms and conditions are complied with, respectively.
(1) The proceeds of such sale are credited to a blocked account in a
banking institution in the name of the person for whose account the sale
was made; and
(2) The securities so purchased are held in a blocked account in a
banking institution in the name of the person for whose account the
purchase was made.
(b) This section does not authorize the crediting of the proceeds of
the sale of securities held in a blocked account or a sub-account
thereof, to a blocked account or sub-account under any name or
designation which differs from the name or designation of the specific
blocked account or sub-account in which such securities were held.
31 CFR 535.540 Disposition of certain tangible property.
(a) Specific licenses may be issued in appropriate cases at the
discretion of the Secretary of the Treasury for the public sale and
transfer of certain tangible property that is encumbered or contested
within the meaning of 535.333 (b) and (c) and that, because it is
blocked by 535.201, may not be sold or transferred without a specific
license, provided that each of the following conditions is met:
(1) The holder or supplier of the property has made a good faith
effort over a reasonable period of time to obtain payment of any amounts
owed by Iran or the Iranian entity, or adequate assurance of such
payment;
(2) Neither payment nor adequate assurance of payment has been
received;
(3) The license applicant has, under provisions of law applicable
prior to November 14, 1979, a right to sell, or reclaim and sell, such
property by methods not requiring judicial proceedings, and would be
able to exercise such right under applicable law, but for the
prohibitions in this part, and
(4) The license applicant shall enter into an indemnification
agreement acceptable to the United States providing for the applicant to
indemnify the United States, in an amount up to 150 percent of the
proceeds of sale, for any monetary loss which may accrue to the United
States from a decision by the Iran-U.S. Claims Tribunal that the United
States is liable to Iran for damages that are in any way attributable to
the issuance of such license. In the event the applicant and those
acting for or on its behalf are the only bidders on the property, the
United States shall have the right to establish a reasonable
indemnification amount.
(b) An applicant for a license under this section shall provide the
Office of Foreign Assets Control with documentation on the points
enumerated in paragraph (a) of this section. The applicant normally
will be required to submit an opinion of legal counsel regarding the
legal right claimed under paragraph (a)(3) of this section.
(c) Any sale of property licensed under this section shall be at
public auction and shall be made in good faith in a commercially
reasonable manner. Notwithstanding any provision of State law, the
license applicant shall give detailed notice to the appropriate Iranian
entity of the proposed sale or transfer at least 30 days prior to the
sale or other transfer. In addition, if the license applicant has filed
a claim with the Iran-U.S. Claims Tribunal, the license applicant shall
give at least 30 days' advance notice of the sale to the Tribunal.
(d) The disposition of the proceeds of any sale licensed under this
section, minus such reasonable costs of sale as are authorized by
applicable law (which will be licensed to be deducted), shall be in
accordance with either of the following methods:
(1) Deposit into a separate blocked, interest-bearing account at a
domestic bank in the name of the licensed applicant; or
(2) Any reasonable disposition in accordance with provisions of law
applicable prior to November 14, 1979, which may include unrestricted
use of all or a portion of the proceeds, provided that the applicant
shall post a bond or establish a standby letter of credit, subject to
the prior approval of the Secretary of the Treasury, in favor of the
United States in the amount of the proceeds of sale, prior to any such
disposition.
(e) For purposes of this section, the term ''proceeds'' means any
gross amount of money or other value realized from the sale. The
proceeds shall include any amount equal to any debt owed by Iran which
may have constituted all or part of a successful bid at the licensed
sale.
(f) The proceeds of any such sale shall be deemed to be property
governed by 535.215 of this part. Any part of the proceeds that
constitutes Iranian property which under 535.215 is to be transferred
to Iran shall be so transferred in accordance with that section.
(g) Any license pursuant to this section may be granted subject to
conditions deemed appropriate by the Secretary of the Treasury.
(h) Any person licensed pursuant to this section is required to
submit a report to the Chief of Licensing, Office of Foreign Assets
Control, within ten business days of the licensed sale or other
transfer, providing a full accounting of the transaction, including the
costs, any payment to lienholders or others, including payments to Iran
or Iranian entities, and documentation concerning any blocked account
established or payments made.
(Sec. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44 FR
65729; E.O. 12205, 45 FR 24099; E.O. 12211, 45 FR 26605; E.O. 12276,
46 FR 7913; E.O. 12279, 46 FR 7919; E.O. 12280, 46 FR 7921; E.O.
12281, 46 FR 7923; E.O. 12282, 46 FR 7925; and E.O. 12294, 46 FR
14111)
(47 FR 31683, July 22, 1982)
31 CFR 535.566 Unblocking of foreign currency deposits held by
U.S.-owned or controlled foreign firms.
Deposits held abroad in currencies other than U.S. dollars by
branches and subsidiaries of persons subject to the jurisdiction of the
United States are unblocked, provided however that conversions of
blocked dollar deposits into foreign currencies are not authorized.
(44 FR 66833, Nov. 21, 1979)
31 CFR 535.567 Payment under advised letters of credit.
(a) Specific licenses may be issued for presentation, acceptance, or
payment of documentary drafts under a letter of credit opened by an
Iranian entity and advised by a domestic bank or an Iranian bank subject
to the jurisdiction of the United States, provided, That:
(1) The letter of credit was advised prior to the effective date;
(2) The property which is the subject of the payment under the letter
of credit was not in the possession or control of the exporter on or
after the effective date;
(3) The Beneficiary is a person subject to the jurisdiction of the
United States.
(b) As a general matter, licenses will not be issued if the amount to
be paid to a single payee exceeds $500,000, or if hardship cannot be
shown.
(44 FR 75354, Dec. 19, 1979)
31 CFR 535.568 Certain standby letters of credit and performance bonds.
(a) Notwithstanding any other provision of law, payment into a
blocked account in a domestic bank by an issuing or confirming bank
under a standby letter of credit in favor of an Iranian entity is
prohibited by 535.201 and not authorized, notwithstanding the
provisions of 535.508, if either:
(1) A specific license has been issued pursuant to the provisions of
paragraph (b) of this section, or
(2) Eight business days have not expired after notice to the account
party pursuant to paragraph (b) of this section.
(b) Whenever an issuing or confirming bank shall receive such demand
for payment under a standby letter of credit, it shall promptly notify
the person for whose account the credit was opened. Such person may
then apply within five business days for a specific license authorizing
the account party to establish a blocked account on its books in the
name of the Iranian entity in the amount payable under the credit, in
lieu of payment by the issuing or confirming bank into a blocked account
and reimbursement therefor by the account party.
(c) Where there is outstanding a demand for payment under a standby
letter of credit, and the issuing or confirming bank has been enjoined
from making payment, upon removal of the injunction, the person for
whose account the credit was opened may apply for a specific license for
the same purpose and in the same manner as that set forth in paragraph
(b) of this section. The issuing or confirming bank shall not make
payment under the standby letter of credit unless:
(1) Eight business days have expired since the bank has received
notice of the removal of the injunction and;
(2) A specific license issued to the account party pursuant to the
provisions of this paragraph has not been presented to the bank.
(d) If necessary to assure the availability of the funds blocked, the
Secretary may at any time require the payment of the amounts due under
any letter of credit described in paragraph (a) of this section into a
blocked account in a domestic bank or the supplying of any form of
security deemed necessary.
(e) Nothing in this section precludes any person for whose account a
standby letter of credit was opened or any other person from at any time
contesting the legality of the demand from the Iranian entity or from
raising any other legal defense to payment under the standby letter of
credit.
(f) This section does not affect the obligation of the various
parties of the instruments covered by this section if the instruments
and payment thereunder are subsequently unblocked.
(g) For the purposes of this section, the term ''standby letter of
credit'' shall mean a letter of credit securing performance of, or
repayment of, any advance payments of deposits, under a contract with
Iran or an Iranian entity, or any similar obligation in the nature of a
performance bond.
(h) The regulations do not authorize any person subject to the
jurisdiction of the United States to reimburse a non-U.S. bank for
payment to Iran or an Iranian entity under a standby letter of credit,
except by payment into a blocked account in accordance with 535.508 or
paragraph (b) or (c) of this section.
(i) A person receiving a specific license under paragraph (b) or (c)
of this section shall certify to the Office of Foreign Assets Control
within five business days after receipt of that license that it has
established the blocked account on its books as provided for in those
paragraphs. However, in appropriate cases, this time may be extended
upon application to the Office of Foreign Assets Control when the
account party has filed a petition with an appropriate court seeking a
judicial order barring payment by the issuing or confirming bank.
(j) The extension or renewal of a standby letter of credit is
authorized.
(k) All specific licenses previously issued under this section to
account parties to standby letters of credit are revoked, effective
February 28, 1991, unless the license holder submits documentation to
the Office of Foreign Assets Control establishing that the specific
license pertains to a standby letter of credit obligation that (i) is at
issue in any claim brought before the Iran-United States Claims Tribunal
(''Tribunal''), (ii) is or was at issue in any claim that the Tribunal
resolves, or has resolved, on the merits in favor of the account party,
or (iii) was at issue in a matter that was settled by the parties. The
documentation required for such a showing may include such items as a
copy of a Tribunal Award, a copy of a signed settlement agreement, or
copies of cover pages of recent filings in pending Tribunal cases.
(47 FR 12339, Mar. 23, 1982, as amended at 56 FR 6546, Feb. 15, 1991)
31 CFR 535.569 Licensed letter of credit transactions; forwarding of
documents.
When payment of a letter of credit issued, advised, or confirmed by a
bank subject to the jurisdiction of the United States is authorized by
either general or specific license, the forwarding of the letter of
credit documents to the account party is authorized.
(45 FR 1877, Jan. 9, 1980)
31 CFR 535.576 Payment of non-dollar letters of credit to Iran.
Notwithstanding the prohibitions of 535.201 and 535.206(a)(4),
payment of existing non-dollar letters of credit in favor of Iranian
entities or any person in Iran by any foreign branch or subsidiary of a
U.S. firm is authorized, provided that the credit was opened prior to
the respective effective date.
(45 FR 29288, May 2, 1980)
31 CFR 535.579 Authorization of new transactions concerning certain
Iranian property.
(a) Transactions involving property in which Iran or an Iranian
entity has an interest are authorized where:
(1) The property comes within the jurisdiction of the United States
or into the control or possession of any person subject to the
jurisdiction of the United States after January 19, 1981, or
(2) The interest in the property of Iran or an Iranian entity (e.g.
exports consigned to Iran or an Iranian entity) arises after January 19,
1981.
(b) Transactions involving standby letters of credit, performance or
payment bonds and similar obligations, entered into prior to January 20,
1981, described in 535.568 remain subject to the prohibitions and
procedures contained in 535.201 and 535.568.
(c) Property not blocked under 535.201 as of January 19, 1981, in
which the Government of Iran or an Iranian entity has an interest, which
after that date is or becomes subject to the jurisdiction of the United
States or comes within the control or possession of a person subject to
the jurisdiction of the United States for the express purpose of
settling claims against Iran or Iranian entities, is excluded from any
authorization in this part for any attachment, injunction or other order
of similar or analogous effect and any such attachment, injunction or
order is prohibited by 535.201 and 535.203.
(Secs. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44
FR 65729; E.O. 12205, 45 FR 24099; E.O. 12211, 45 FR 26685; E.O.
12276, 46 FR 7913; E.O. 12279, 46 FR 7919; E.O. 12280, 46 FR 7921;
E.O. 12281, 46 FR 7923; E.O. 12282, 46 FR 7925; E.O. 12283, 46 FR
7927, and E.O. 12294, 46 FR 14111)
(46 FR 14336, Feb. 26, 1981)
31 CFR 535.580 Necessary living expenses of relatives of the former
Shah of Iran.
The transfer, payment or withdrawal of property described in 535.217
is authorized to the extent necessary to pay living expenses of any
individual listed in that section. Living expenses for this purpose
shall include food, housing, transportation, security and other personal
expenses.
(Secs. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44
FR 65729; E.O. 12211, 45 FR 26685; E.O. 12284, 46 FR 7929)
(46 FR 14330, Feb. 26, 1981)
31 CFR 535.580 Subpart F -- Reports
31 CFR 535.601 Records.
Every person engaging in any transaction subject to the provisions of
this part shall keep a full and accurate record of each such transaction
engaged in by him, regardless of whether such transaction is effected
pursuant to license or otherwise, and such record shall be available for
examination for at least two years after the date of such transaction.
(44 FR 75354, Dec. 19, 1979)
31 CFR 535.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, from time to time and at any time as may be
required by the Secretary of the Treasury or any person acting under his
direction or authorization complete information relative to any
transaction subject to the provisions of this part or relative to any
property in which any foreign country or any national thereof has any
interest of any nature whatsoever, direct or indirect. The Secretary of
the Treasury or any person acting under his direction may require that
such reports include the production of any books of account, contracts,
letters or other papers, connected with any such transaction or
property, in the custody or control of the persons required to make such
reports. Reports with respect to transactions may be required either
before or after such transactions are completed. The Secretary of the
Treasury may, through any person or agency, investigate any such
transaction or property or any violation of the provisions of this part
regardless of whether any report has been required or filed in
connection therewith.
(44 FR 75354, Dec. 19, 1979)
31 CFR 535.615 Reports on Form TFR-615.
(a) Requirement for report. Reports on Form TFR-615 are hereby
required to be filed on or before May 15, 1980, in the manner prescribed
herein, with respect to all property subject to the jurisdiction of the
United States or in the possession or control of any person subject to
the jurisdiction of the United States at any time between the effective
date and March 31, 1980, in which Iran or an Iranian entity has or has
had any interest.
(1) Who must report. Reports on Form TFR-615 must be filed by each
of the following:
(i) Any person subject to the jurisdiction of the United States or
his successor, who on the effective date or any subsequent date up to
and including March 31, 1980, had in his custody, possession or control,
directly or indirectly, in trust or otherwise, property in which there
was any direct or indirect interest of Iran or any Iranian entity,
whether or not the property continued to be held by that person on March
31, 1980; and
(ii) Any business or non-business entity in the United States in
which Iran or an Iranian entity held any financial interest on the
effective date or on any subsequent date.
(2) Property not required to be reported. A report on Form TFR-615
is not required with respect to:
(i) Property of a private Iranian national; and
(ii) Patents, copyrights, trademarks and inventions; Provided,
however, That a report is required with respect to any royalties due and
unpaid in connection with such property.
(b) Filing Form TFR-615. Reports on Form TFR-615 shall be prepared
in triplicate. On or before May 15, 1980, two copies shall be sent in a
set to Unit 615, Office of Foreign Assets Control, Department of the
Treasury, Washington, DC 20220. The third copy must be retained with
the reporter's records.
(c) Certification. Every report on Form TFR-615 shall contain the
certification required in part F of the Form. Failure to complete the
certification shall render the report ineffective, and the submission of
such a report shall not constitute compliance with this section.
(d) Confidentiality of reports. Reports on Form TFR-615 are regarded
as privileged and confidential.
(45 FR 24408, Apr. 9, 1980)
31 CFR 535.616 Reports on Form TFR-616.
(a) Requirement for reports. Reports on Form TFR-616 are hereby
required to be filed on or before May 15, 1980, in the manner prescribed
herein, with respect to claims for losses due to expropriation,
nationalization, or other taking of property or businesses in Iran,
including any special measures such as Iranian exchange controls
directed against such property or businesses; claims for debt defaults,
for damages for breach of contract or similar damages; and personal
claims for salaries or for injury to person or property.
(b) Who must report. Reports on Form TFR-616 must be filed by every
person subject to the jurisdiction of the United States which had a
claim against Iran or an Iranian entity which arose before April 15,
1980. No report is to be submitted by a U.S. branch of a foreign firm
not owned or controlled by a person subject to the jurisdiction of the
United States or by a nonresident alien.
(c) Filing Form TFR-616. Reports on Form TFR-616 shall be prepared
in triplicate. On or before May 15, 1980, two copies shall be sent in a
set to Unit 616, Office of Foreign Assets Control, Department of the
Treasury, Washington, DC 20220. The third copy must be retained with
the reporter's record.
(d) Certification. Every report on Form TFR-616 shall contain the
certification required on part E of the Form. Failure to complete the
certification shall render the report ineffective, and the submission of
such a report shall not constitute compliance with this section.
(e) Confidentiality of reports. Reports on Form TFR-616 are regarded
as privileged and confidential.
(45 FR 24408, Apr. 9, 1980)
31 CFR 535.618 Report of contested property.
(a) Requirement for reports. Reports are required to be filed within
15 days of receipt of a direction from Iran to transfer any interests in
property claimed or believed to be an interest of Iran which was blocked
by the Iranian Assets Control Regulations if the party receiving the
direction to transfer has not transferred such claimed interest in
property.
(b) Who must report. Reports must be filed by every person subject
to the jurisdiction of the United States who does not transfer any
interest or claimed interest in property described in paragraph (a) of
this section within 15 days of a direction from Iran to transfer it.
(c) Contents of report. Each report shall contain the following
information.
(1) Name and address of entity making the report.
(2) Name of person and entity directing the transfer.
(3) Date of the direction and date of its receipt.
(4) Description of the interest or claimed interest in property
directed to be transferred.
(5) Statement or estimate of value of the interest or claimed
interest in property.
(6) Explanation why property was not transferred as directed.
(7) Statement of any planned actions with respect to the interest or
claimed interest in the property described.
(d) Filing. Reports shall be prepared in triplicate. Two copies
shall be sent in a set to Unit 617, Office of Foreign Assets Control,
Department of the Treasury, Washington, DC 20220. The third copy must
be retained with the reporter's records.
(e) Confidentiality of reports. Reports under this section are
regarded as privileged and confidential.
(Secs. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44
FR 65729; E.O. 12205, 45 FR 24099; E.O. 12211, 45 FR 26685; E.O.
12276, 46 FR 7913; E.O. 12279, 46 FR 7919; E.O. 12280, 46 FR 7921;
E.O. 12281, 46 FR 7923; E.O. 12282, 46 FR 7925; E.O. 12283, 46 FR
7927, and E.O. 12294, 46 FR 14111)
(46 FR 14337, Feb. 26, 1981)
31 CFR 535.619 Reports on Form TFR-619.
(a) Reporting requirements. Within 30 days after publication in the
Federal Register of the name of any person or estate in 535.217(b), the
following persons who are subject to the jurisdiction of the United
States shall file reports on Form TFR-619 with respect to their
knowledge of the property of such person or estate at any time between
November 3, 1979 and the date designated after the name of any person in
535.217(b):
(1) Any person whose name is published for inclusion in 535.217(b);
(2) Any person who has or had, from November 3, 1979 to the date of
designation of the relevant person in 535.217(b), actual or
constructive possession or control, directly or indirectly, in trust or
otherwise, of property in which there was any direct or indirect
interest of any person listed in 535.217(b) of the Regulations;
(3) Any business or non-business entity in the United States in which
any person listed in 535.217(b) of the Regulations held any financial
interest at any time between November 3, 1979 and the date of
designation of the relevant person in 535.217(b);
(4) Any person having knowledge of property or assets of a person
listed in 535.217(b) of the Regulations, by reason of a business
relationship with such property;
(5) Any person having actual knowledge of property of a person named
in 535.217(b) because of a personal relationship with the named person;
and
(6) Any agency of the United States Government which has in any of
its official financial books and records any information which serves to
identify any property or assets of a person listed in 535.217(b) of the
Regulations.
(b) What must be reported. Form TFR-619 reports shall include the
information specified in the form with respect to any interest of any
nature whatsoever that a person named in 535.217(b) had in any property
subject to the jurisdiction of the United States between November 3,
1979, and the date of any designation of the relevant person in
535.217(b). The term ''property'' is defined in 535.311 of this part.
(c) Filing Form TFR-619. Reports on Forms TFR-619 shall be prepared
in triplicate, two copies of which shall be sent in a set to Unit 619,
Office of Foreign Assets Control, Department of the Treasury,
Washington, DC 20220. The third copy is to be retained for the
reporter's records.
(d) Certification. Every reporter is required to complete the
certification portion of Form TFR-619. Failure to complete the
certification shall render the report ineffective and the submission
shall not constitute compliance with this section.
(Secs. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44
FR 65729; E.O. 12211, 45 FR 26685; E.O. 12284, 46 FR 7929)
(46 FR 26478, May 13, 1981)
31 CFR 535.620 Report on transfer of domestic bank assets and financial
assets held by nonbanking institutions.
(a) Requirement for reports. A report shall be filed by June 26,
1981 on Form TFR-620 by any bank or nonbanking institution regarding any
transfer to the Federal Reserve Bank of New York that is required by
535.213 or 535.214. Any reporter that transfers property to the Federal
Reserve Bank of New York by June 19, pursuant to 535.213 or 535.214,
shall describe the property so transferred. Property (including
interest through July 8, 1981, not transferred but required by 535.213
or 535.214 to be transferred shall be separately described.
(b) Contents of report. Each report shall contain the following
information:
(1) Name and address of the transferor (indicate whether bank or
nonbanking institution).
(2) Name and telephone number of person to be contacted about the
transfer.
(3) Description of the property transferred or required to be
transferred with a list of accounts, including branch, account party,
account number, and account amount, with breakdown between principal and
interest (as of date transferred or as of July 8 if not yet
transferred).
(4) Total value (market value in the case of securities) of each
transfer.
(5) Date and time of transfer (if applicable).
(6) A statement as to how interest was calculated, including rate(s)
of interst and period(s) for which the rate(s) was applied.
(c) Filing. Reports shall be prepared in triplicate. Two copies
shall be sent in a set to Unit 620, Office of Foreign Assets Control,
Department of the Treasury, Washington, DC 20220. The third copy shall
be retained for the reporter's records.
(d) Confidentiality of reports. Reports under this section are
regarded as privileged and confidential but may be disclosed to Iran.
(e) Updating of reports. The Form TFR-620 report shall be updated
within five business days of the transfer date to be determined by the
Treasury Department by any reporter that does not transfer to the
Federal Reserve Bank of New York, on or before that date, the property
described in the reporter's TFR-620 report. The required updating shall
include a full explanation as to why the property actually transferred
was not the same as the property described in the reporter's TFR-620
report.
(Secs. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44
FR 65729; E.O. 12205, 45 FR 24099; E.O. 12211, 45 FR 26685; E.O.
12276, 46 FR 7913; E.O. 12279, 46 FR 7919; E.O. 12280, 46 FR 7921;
E.O. 12281, 46 FR 7923; E.O. 12282, 46 FR 7925; E.O. 12283, 46 FR
7927, and E.O. 12294, 46 FR 14111)
(46 FR 31630, June 16, 1981)
31 CFR 535.621 Registration of bank claims against the escrow account
at the Bank of England.
(a) Registration requirements. Any U.S. banking institution that
has, and intends to assert, a claim against the account established by
the deposit of $1.418 billion in escrow (''the Escrow Account,'' also
known as ''Dollar Account No. 2'') at the Bank of England pursuant to
paragraph 2(B) of the Undertakings of the Government of the United
States of America and the Government of the Islamic Republic of Iran
with Respect to the Declaration of the Government of the Democratic and
Popular Republic of Algeria, is required to register with the Office of
Foreign Assets Control, in writing, on or before December 16, 1981.
(b) Contents of registration notice. The required registration shall
refer to this section of the Regulations and contain the following:
(1) Name and address of the banking institution; and
(2) Name, title, and telephone number of person who may be contacted
about this registration.
(c) Filing. One copy of this registration notice, which shall be in
the form of a letter or a telex (Telex No. 710-822-9201), should be sent
to Unit 621, Office of Foreign Assets Control, Department of the
Treasury, Washington, DC 20220. Telexed notices should also include the
telephone number (376-0968) of the Census Unit. A copy of the notice
should be retained for the submitter's records.
(d) Failure to register. Any banking institution which does not
submit a registration notice pursuant to this section shall be precluded
from asserting any claim against the Escrow Account.
(Secs. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44
FR 65729; E.O. 12205, 45 FR 24099; E.O. 12211, 45 FR 26685; E.O.
12276, 46 FR 7913; E.O. 12279, 46 FR 7919; E.O. 12280, 46 FR 7921;
E.O. 12281, 46 FR 7923; E.O. 12282, 46 FR 7925; and E.O. 12294, 46 FR
14111)
(46 FR 59939, Dec. 7, 1981)
31 CFR 535.622 Registration of bank claims against the No. 1 Account,
and the escrow account at the Bank of England (Dollar Account No. 2);
registration of January Interest claims.
(a) Bank claims against the No. 1 Account -- (1) Registration
requirements. Any U.S. banking institution that is a member of a
syndicate of banking institutions and has, or any member of the
syndicate has, and intends to assert, a claim against the balance
remaining (the ''No. 1 Account'') of the $3.667 billion transferred to
the Federal Reserve Bank of New York (the ''Fed'') pursuant to paragraph
2(A) of the January 19, 1981 Undertakings of the Government of the
United States of America and the Government of the Islamic Republic of
Iran With Respect to the Declaration of the Government of the Democratic
and Popular Republic of Algeria (the ''Undertakings'') is required to
register with the Office of Foreign Assets Control, in writing, on or
before November 17, 1986, unless at least one other U.S. banking
institution that is a member of the syndicate has properly filed a
registration pursuant to this subsection relating to such claim. Each
registration shall relate only to one syndicate.
(2) Contents of registration. The required registration shall refer
to this subsection and contain the following:
(i) Name and address of the registrant banking institution;
(ii) Name, title, and telephone number of person who may be contacted
about the registration;
(iii) Identification of the syndicate;
(iv) The basis for each kind of claim together with the name of each
syndicate member (including the registrant, if applicable) on whose
behalf the registrant is asserting that kind of claim and the dollar
amount of that kind of claim for each such syndicate member;
(v) If there is more than one kind of claim, for each kind of claim
the total dollar amount claimed for all syndicate members (including the
registrant if applicable) on whose behalf the registrant is asserting
that kind of claim;
(vi) The aggregate total dollar amount claimed for all syndicate
members (including the registrant, if applicable) on whose behalf the
registrant is asserting claims; and
(vii) The interest rate(s) at which interest would accrue after
September 30, 1986, and, if different rates apply to different portions
of the aggregate total dollar amount claimed, the dollar amount to which
each rate applies.
All dollar amounts are to be stated as of September 30, 1986. Dollar
amounts and other information relating to a claim for interest
(including interest thereon) related to the period after December 31,
1980, on the syndicated loans and credits referred to in paragraph 2(A)
of the Undertakings (''January Interest'') shall not be included in
registrations pursuant to this subsection. If the interest rate(s)
referred to in clause (a)(2)(vii) may only be stated with reference to
an index, that index and the applicable margin shall be provided. For
all interest rates referred to in clause (a)(2)(vii), the calculation
period (e.g., semiannual), the starting date of the first interest
calculation period beginning after September 30, 1986, and the
calculation basis (e.g., 365/365, 365/360) shall be provided.
(3) Filing. One copy of the registration, which shall be in the form
of a letter or a telex (Telex No. 710-822-9201), shall be sent to Unit
622(a), Office of Foreign Assets Control, Department of the Treasury,
Washington, DC 20220. Telexed registrations should also include the
telephone number of the Census Unit (376-0968). A copy of the
registration should be retained for the registrant banking institution's
records.
(4) Failure to register. All members of a syndicate are precluded
from asserting any claim against the No. 1 Account arising out of the
syndicate, or participation in the syndicate, unless at least one U.S.
banking institution that is a member of the syndicate has registered a
claim against the No. 1 Account pursuant to this subsection and the
claim asserted is consistent with information provided in such
registration and with the purpose of Paragraph 2(A) of the Undertakings.
(b) Bank claims against the escrow account (Dollar Account No. 2) at
the Bank of England -- (1) Registration requirements. Any U.S. banking
institution that has, and intends to assert, any remaining claim against
the account established by the deposit of $1.418 billion in escrow (the
''Escrow Account,'' also known as Dollar Account No. 2'') at the Bank
of England pursuant to paragraph 2(B) of the Undertakings is required to
register with the Office of Foreign Assets Control, in writing, on or
before November 17, 1986.
(2) Contents of registration. The required registration shall refer
to this subsection and contain the following:
(i) Name and address of the registrant banking institution;
(ii) Name, title, and telephone number of person who may be contacted
about the registration;
(iii) The basis for each kind of claim together with the dollar
amount of that kind of claim;
(iv) The total dollar amount claimed; and
(v) The interest rate(s) at which interest would accrue after
September 30, 1986, and, if different rates apply to different portions
of the total dollar amount claimed, the dollar amount to which each rate
applies.
All dollar amounts are to be stated as of September 30, 1986. Dollar
amounts and other information relating to a January Interest claim shall
not be included in registrations pursuant to this subsection. If the
interest rate(s) referred to in clause (b)(2)(v) may only be stated with
reference to an index, that index and the applicable margin shall be
provided. For all interest rates referred to in clause (b)(2)(v), the
calculation period (e.g., semiannual), the starting date of the first
interest calculation period beginning after September 30, 1986, and the
calculation basis (e.g., 365/365, 365/360) shall be provided.
(3) Filing. One copy of the registration, which shall be in the form
of a letter or a telex (Telex No. 710-822-9201), shall be sent to Unit
622(b), Office of Foreign Assets Control, Department of the Treasury,
Washington, DC 20220. Telexed registrations should also include the
telephone number (376-0968) of the Census Unit. A copy of the
registration should be retained for the registrant banking institution's
records.
(4) Failure to register. Except for a January Interest claim, U.S.
banking institutions are precluded from asserting any claim against the
Escrow Account unless the U.S. banking institution has registered a
claim against the Escrow Account pursuant to this subsection and has
previously registered pursuant to 535.621 and the claim asserted is
consistent with information provided in the registration pursuant to
this subsection and with the purpose of Paragraph 2(A) of the
Undertakings.
(c) January Interest registration -- (1) Registration requirements.
Any U.S. banking institution that is a member of a syndicate of banking
institutions and has, or any member of the syndicate has, and intends to
assert, a claim for January Interest against the Escrow Account is
required to register with the Office of Foreign Assets Control, in
writing, on or before November 17, 1986, unless at least one other U.S.
banking institution that is a member of the syndicate has properly filed
a registration pursuant to this subsection relating to such claim.
(2) Contents of registration. The required registration shall refer
to this subsection and contain the following:
(i) Name and address of the registrant banking institution;
(ii) Name, title, and telephone number of person who may be contacted
about the registration;
(iii) Identification of syndicate(s);
(iv) For each syndicate the name of each syndicate member (including
the registrant, if applicable) on whose behalf the registrant is
asserting a claim and the dollar amount of the claim for such syndicate
member;
(v) If there is more than one syndicate, for each syndicate the total
dollar amount claimed for all syndicate members (including the
registrant if applicable) on whose behalf the registrant is asserting a
claim;
(vi) The aggregate total dollar amount claimed for all syndicate
members (including the registrant, if applicable) on whose behalf the
registrant is asserting claims; and
(vii) The interest rate(s) at which interest would accrue after
September 30, 1986, and, if different rates apply to different portions
of the aggregate total dollar amount claimed, the dollar amount to which
each rate applies.
All dollar amounts are to be stated as of September 30, 1986. If the
interest rate(s) referred to in clause (c)(2)(vii) may only be stated
with reference to an index, that index and the applicable margin shall
be provided. For all interest rates referred to in clause (c)(2)(vii),
the calculation period (e.g., semiannual), the starting date of the
first interest calculation period beginning after September 30, 1986,
and the calculation basis (e.g., 365/365, 365/360) shall be provided.
(3) Filing. One copy of the registration, which shall be in the form
of a letter or a telex (Telex No. 710-822-9201), shall be sent to Unit
622(c), Office of Foreign Assets Control, Department of the Treasury,
Washington, DC 20220. Telexed registrations should also include the
telephone number of the Census Unit (376-0968). A copy of the
registration should be retained for the registrant banking institution's
records.
(4) Failure to register. All members of a syndicate are precluded
from asserting any January Interest claim against the Escrow Account
arising out of the syndicate, or participation in the syndicate, unless
at least one U.S. banking institution that is a member of the syndicate
has registered a claim against the Escrow Account pursuant to this
subsection and the claim asserted is consistent with information
provided in such registration and with the purpose of Paragraph 2(B) of
the Undertakings.
(51 FR 37569, Oct. 23, 1986)
31 CFR 535.625 Reports on Form TFR-625.
(a) Requirement for report. Reports on Form TFR-625 are hereby
required to be filed on or before July 1, 1982, in the manner prescribed
herein, with respect to all tangible property subject to the
jurisdiction of the United States or in the possession or control of any
person subject to the jurisdiction of the United States at any time
between November 14, 1979, and January 19, 1981, in which Iran or an
Iranian entity has or has had any interest or asserted interest.
(b) Who must report. Reports on Form TFR-625 must be filed by any
person, or the successor to such person, subject to the jurisdiction of
the United States who has an interest in, or who, between November 14,
1979, and January 19, 1981, had in his custody, control, or possession,
directly or indirectly, in trust or otherwise, tangible property in
which there was or is any direct or indirect interest or an asserted
interest of Iran or an Iranian entity. This includes, but is not
limited to, all persons who reported holding tangible property as of
March 31, 1980 on Treasury Department Form TFR-615, ''Census of Blocked
Iranian Assets.''
(c) Filing Form TFR-625. Reports on Form TFR-625 shall be prepared
in triplicate. On or before July 1, 1982, two copies shall be sent in a
set to Unit 625, Office of Foreign Assets Control, Department of the
Treasury, Washington, DC 20220. The third copy must be retained with
the reporter's records.
(d) Certification. Every report on Form TFR-625 shall contain the
certification required in part D of the Form. Failure to complete the
certification shall render the report ineffective, and the submission of
such a report shall not constitute compliance with this section.
(e) Confidentiality of reports. Reports on Form TFR-625 are regarded
as privileged and confidential.
(Approved by the Office of Management and Budget under control number
1505-0056)
(Secs. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44
FR 65729; E.O. 12205, 45 FR 24099; E.O. 12211, 45 FR 26685; E.O.
12276, 46 FR 7913; E.O. 12279, 46 FR 7919; E.O. 12280, 46 FR 7921;
E.O. 12281, 46 FR 7923; E.O. 12282, 46 FR 7925; and E.O. 12294, 46 FR
14111)
(47 FR 22361, May 24, 1982)
Editorial Note: For a notice document affecting 535.625 Form
TFR-625, see 47 FR 25003, June 9, 1982.
31 CFR 535.625 Subpart G -- Penalties
31 CFR 535.701 Penalties.
(a) Attention is directed to section 206 of the International
Emergency Economic Powers Act which provides in part:
(a) A civil penalty of not to exceed $10,000 may be imposed on any
person who violates any license, order, or regulation issued under this
title.
(b) Whoever willfully violates any license, order, or regulation
issued under this title shall, upon conviction be fined not more than
$50,000, or, if a natural person, may be imprisoned for not more than
ten years, or both; and any officer, director, or agent of any
corporation who knowingly participates in such violation may be punished
by a like fine, imprisonment or both.
This section of the International Emergency Economic Powers Act is
applicable to violations of any provision of this part and to violations
of the provisions of any license, ruling, regulation, order, direction
or instruction issued by or pursuant to the direction or authorization
of the Secretary of the Treasury pursuant to this part or otherwise
under the International Emergency Economic Powers Act.
(b) Attention is also directed to 18 U.S.C. 1001 which provides:
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representation or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
31 CFR 535.702 Prepenalty notice.
(a) When required. If the Director of the Office of Foreign Assets
Control (hereinafter ''Director'') has reasonable cause to believe that
there has occurred a violation of any provision of this part or a
violation of the provisions of any license, ruling, regulation, order,
direction or instruction issued by or pursuant to the direction or
authorization of the Secretary of the Treasury pursuant to this part or
otherwise under the International Emergency Economic Powers Act, and the
Director determines that further proceedings are warranted, he shall
issue to the person concerned a notice of his intent to impose a
monetary penalty. The prepenalty notice shall be issued whether or not
another agency has taken any action with respect to this matter.
(b) Contents -- (1) Facts of violation.
The prepenalty notice shall: (i) Describe the violation.
(ii) Specify the laws and regulations allegedly violated.
(iii) State the amount of the proposed monetary penalty.
(2) Right to make presentations. The prepenalty notice also shall
inform the person of his right to make a written presentation within
thirty (30) days of mailing of the notice as to why a monetary penalty
should not be imposed, or, if imposed, why it should be in a lesser
amount than proposed.
(53 FR 7356, Mar. 8, 1988)
31 CFR 535.703 Presentation responding to prepenalty notice.
(a) Time within which to respond. The named person shall have 30
days from the date of mailing of the prepenalty notice to make a written
presentation to the Director.
(b) Form and contents of written presentation. The written
presentation need not be in any particular form, but shall contain
information sufficient to indicate that it is in response to the
prepenalty notice. It should contain responses to the allegations in
the prepenalty notice and set forth the reasons why the person believes
the penalty should not be imposed or, if imposed, why it should be in a
lesser amount than proposed.
(53 FR 7356, Mar. 8, 1988)
31 CFR 535.704 Penalty notice.
(a) No violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was no violation by the person named in the prepenalty notice, he
promptly shall notify the person in writing of that determination and
that no monetary penalty will be imposed.
(b) Violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was a violation by the person named in the prepenalty notice, he
promptly shall issue a written notice of the imposition of the monetary
penalty to that person.
(53 FR 7356, Mar. 8, 1988)
31 CFR 535.705 Referral to United States Department of Justice.
In the event that the person named does not pay the penalty imposed
pursuant to this subpart or make payment arrangements acceptable to the
Director within thirty days of the mailing of the written notice of the
imposition of the penalty, the matter shall be referred to the United
States Department of Justice for appropriate action to recover the
penalty in a civil suit in a Federal district court.
(53 FR 7356, Mar. 8, 1988)
31 CFR 535.705 Subpart H -- Procedures
Source: 44 FR 66833, Nov. 21, 1979, unless otherwise noted.
31 CFR 535.801 Licensing.
(a) General licenses. General licenses have been issued authorizing
under appropriate terms and conditions many types of transactions which
are subject to the prohibitions contained in subpart B of this part.
All such licenses are set forth in subpart E of this part. It is the
policy of the Office of Foreign Assets Control not to grant applications
for specific licenses authorizing transactions to which the provisions
of an outstanding general license are applicable. Persons availing
themselves of certain general licenses are required to file reports and
statements in accordance with the instructions specified in the
licenses.
(b) Specific licenses -- (1) General course of procedure.
Transactions subject to the prohibitions contained in subpart B of this
part which are not authorized by general license may be effected only
under specific license. When an unusual problem is presented, the
proposed action is cleared with the Director of the Office of Foreign
Assets Control or such person as he may designate.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transactions prohibited by or pursuant to this
part may be filed by letter with the Office of Foreign Assets Control.
Any person having an interest in a transaction or proposed transaction
may file an application for a license authorizing such transaction, but
the applicant for a specific license is required to make full disclosure
of all parties in interest to the transaction so that a decision on the
application may be made with full knowledge of all relevant facts and so
that the identity and location of the persons who know about the
transaction may be easily ascertained in the event of inquiry.
(3) Information to be supplied. The applicant must supply all
information specified by relevant instructions, and must fully disclose
the names of all the parties who are concerned with or interested in the
proposed transaction. If the application is filed by an agent, the
agent must disclose the name of his principal(s). Such documents as may
be relevant shall be attached to each application as a part of such
application except that documents previously filed with the Office of
Foreign Assets Control may, where appropriate, be incorporated by
reference. Applicants may be required to furnish such further
information as is deemed necessary to a proper determination by the
Office of Foreign Assets Control. Any applicant or other party in
interest desiring to present additional information concerning the
application may do so at any time. Arrangements for oral presentation
may be made with the Office of Foreign Assets Control.
(4) Effect of denial. The denial of a license does not preclude the
reopening of an application or the filing of a further application. The
applicant or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition upon the
issuance of any license, the licensee may be required to file reports
with respect to the transaction covered by the license, in such form and
at such times and places as may be prescribed in the license or
otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the
Treasury, acting in accordance with such regulations, rulings and
instructions as the Secretary of the Treasury or the Office of Foreign
Assets Control may from time to time prescribe, in such cases or classes
of cases as the Secretary of the Treasury or the Office of Foreign
Assets Control may determine, or licenses may be issued by the Secretary
of the Treasury acting directly or through any person, agency, or
instrumentality designated by him.
(c) Address. License applications, reports, and inquiries should be
addressed to the appropriate section or individual within the Office of
Foreign Assets Control, or to its Director, at the following address:
Office of Foreign Assets Control, U.S. Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220.
(44 FR 65956, Nov. 15, 1979, as amended at 57 FR 1389, Jan. 14, 1992)
31 CFR 535.802 Unblocking.
Any interested person desiring the unblocking of accounts or other
property on the ground that neither Iran nor any Iranian entity has an
interest in the property may file such an application. Such application
shall be filed in the manner provided in 535.801(b) and shall contain
full information in support of the administrative action requested.
The applicant is entitled to be heard on the application. If the
applicant desires a hearing, arrangements should be made with the Office
of Foreign Assets Control.
31 CFR 535.803 Decision.
The Office of Foreign Assets Control will advise each applicant of
the decision respecting applications filed by him. The decision of the
Office of Foreign Assets Control acting on behalf of the Secretary of
the Treasury with respect to an application shall constitute final
agency action.
(44 FR 65956, Nov. 15, 1979, as amended at 57 FR 1389, Jan. 14, 1992)
31 CFR 535.804 Records and reporting.
Records are required to be kept by every person engaging in any
transaction subject to the provisions of this part.
Reports may be required from any person with respect to any
transaction subject to the provisions of this chapter or relative to any
property in which any foreign country or any national thereof has any
interest.
31 CFR 535.805 Amendment, modification, or revocation.
The provisions of this part and any rulings, licenses,
authorizations, instructions, orders, or forms issued thereunder may be
amended, modified, or revoked at any time.
31 CFR 535.806 Rule making.
(a) In general, rule making by the Office of Foreign Assets Control
involves foreign affairs functions of the United States to which the
provisions of the Administrative Procedure Act, 5 U.S.C. 553, requiring
notice of proposed rule making, the opportunity for public participation
and a delay in effective date are inapplicable. However, the Office of
Foreign Assets Control may consult with interested groups or persons in
connection with the issuance of rules or the establishment of licensing
policies.
(b) Any interested person may recommend in writing to the Director of
the Office of Foreign Assets Control the issuance, amendment or the
repeal of any rule.
(44 FR 75353, Dec. 19, 1979)
31 CFR 535.807 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control required by
the Freedom of Information Act (5 U.S.C. 552) to be made available to
the public shall be made available in accordance with the definitions,
procedures, requirements for payment of fees, and other provisions of
the Regulations on the Disclosure of Records of the Departmental Offices
and of other bureaus and offices of the Department of the Treasury
issued under 5 U.S.C. 552 and published in part 1 of this title.
(b) The records of the Office of Foreign Assets Control required by
the Privacy Act (5 U.S.C. 552a) to be made available to an individual
shall be made available in accordance with the definitions, procedures,
requirements for payment of fees, and other provisions of the
Regulations on Disclosure of Records of the Departmental Offices and of
other bureaus and offices of the Department of the Treasury issued under
5 U.S.C. 552a and published in part 1 of this title.
(c) Any form used in connection with the Iranian Assets Control
Regulations may be obtained in person from or by writing to the Office
of Foreign Assets Control, U.S. Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220.
(57 FR 1389, Jan. 14, 1992)
31 CFR 535.807 Subpart I -- Miscellaneous Provisions
31 CFR 535.901 Dollar accounts at banks abroad.
Any domestic bank is hereby authorized to effect withdrawals or other
transfers from any account held in the name of a non-Iranian bank
located in a foreign country, provided such non-Iranian foreign bank is
not a person subject to the jurisdiction of the United States.
31 CFR 535.902 Set-offs by U.S. owned or controlled firms abroad.
(a) Branches and subsidiaries in foreign countries of persons subject
to the jurisdiction of the United States are licensed to set-off their
claims against Iran or Iranian entities by debit to blocked accounts
held by them for Iran or Iranian entities.
(b) The general license in paragraph (a) of this section is revoked
as of January 19, 1981.
(c) For purposes of this section, set-offs include combinations of
accounts and any similar actions.
(Secs. 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706; E.O. 12170, 44
FR 65729; E.O. 12205, 45 FR 24099; E.O. 12211, 45 FR 26685; E.O.
12276, 46 FR 7913; E.O. 12279, 46 FR 7919; E.O. 12280, 46 FR 7921;
E.O. 12281, 46 FR 7923; E.O. 12282, 46 FR 7925; E.O. 12283, 46 FR
7927, and E.O. 12294, 46 FR 14111)
(46 FR 14337, Feb. 26, 1981)
31 CFR 535.904 Payment by Iranian entities of obligations to persons
within the United States.
The transfer of funds after the effective date by, through or to any
U.S. banking institution or other person within the United States solely
for purposes of payment of obligations by Iranian entities owed to
persons within the United States is authorized: Provided, That there is
no debit to a blocked account. Property is not blocked by virtue of
being transferred or received pursuant to this section.
(44 FR 66591, Nov. 20, 1979)
31 CFR 535.905 Paperwork Reduction Act notice.
The information collection requirements in 535.568 and 535.801 have
been approved by the Office of Management and Budget and assigned
control number 1505-0096.
(50 FR 27438, July 3, 1985, as amended at 57 FR 6297, Feb. 24, 1992)
31 CFR 535.905 PART 540 -- NICARAGUAN TRADE CONTROL REGULATIONS
31 CFR 535.905 Pt. 540
31 CFR 535.905 Subpart A -- Relation of this Part to Other Laws and
Regulations
Sec.
540.101 Relation of this part to other laws and regulations.
31 CFR 535.905 Subpart B -- Prohibitions
540.204 Prohibited imports of goods and services from Nicaragua.
540.205 Prohibited exports of goods to Nicaragua.
540.206 Prohibited transactions with Nicaraguan vessels.
540.207 Prohibited transactions with Nicaraguan air carriers.
540.208 Prohibited related transactions.
540.209 Evasions; effective date.
31 CFR 535.905 Subpart C -- General Definitions
540.301 Effective date.
540.302 Nicaragua; Nicaraguan.
540.308 Person.
540.316 Nicaraguan origin.
540.321 United States.
31 CFR 535.905 Subpart D -- Interpretations
540.401 Offshore transactions.
540.402 Technical data.
540.403 Imports of services of Nicaraguan origin.
540.404 Transshipment through United States prohibited.
540.405 Imports from third countries; transshipments.
540.406 Exports to third countries; transshipments.
540.407 Imports into bonded warehouse or foreign trade zone.
540.408 Release from bonded warehouse or foreign trade zone.
540.409 Import and export of goods in transit before the effective
date.
540.410 Transactions relating to unprohibited offshore transactions.
31 CFR 535.905 Subpart E -- Licenses, Authorizations and Statements of
Licensing Policy
540.502 Effect of license or authorization.
540.503 Exclusion from licenses and authorizations.
540.504 Imports paid for prior to May 1, 1985.
540.505 Exports pursuant to prior contractual commitments.
540.533 Certain exports authorized.
540.534 Certain imports for diplomatic or official personnel
authorized.
540.535 Certain services relating to participation in various events
authorized.
540.536 Import of publications authorized.
540.537 Import of certain gifts authorized.
540.538 Import of accompanied baggage authorized.
540.539 Commercial exports of certain medical supplies.
540.540 Exports for humanitarian, educational and religious purposes.
540.541 Certain exports by intergovernmental organizations.
540.542 Telecommunications and mail transactions authorized.
540.599 Lifting of sanctions.
31 CFR 535.905 Subpart F -- Reports
540.601 Required records.
540.602 Reports to be furnished on demand.
31 CFR 535.905 Subpart G -- Penalties
540.701 Penalties.
540.702 Detention of shipments.
540.703 Prepenalty notice.
540.704 Presentation responding to prepenalty notice.
540.705 Penalty notice.
540.706 Referral to United States Department of Justice.
31 CFR 535.905 Subpart H -- Procedures
540.801 Licensing.
540.803 Decisions.
540.805 Amendment, modification, or revocation.
540.806 Rulemaking.
540.807 Delegation by the Secretary of the Treasury.
540.808 Customs procedures: Merchandise specified in 540.204.
540.809 Rules governing availability of information.
31 CFR 535.905 Subpart I -- Miscellaneous Provisions
540.901 Paperwork Reduction Act notice.
Authority: Sections 201-207, 91 Stat. 1626, 50 U.S.C. 1701-1706;
E.O. 12513.
Source: 50 FR 19890, May 10, 1985, unless otherwise noted.
31 CFR 535.905 Subpart A -- Relation of This Part to Other Laws and Regulations
31 CFR 540.101 Relation of this part to other laws and regulations.
(a) This part is independent of parts 500, 505, 515, 520, and 535 of
this chapter. Those parts do not relate to Nicaragua. No license or
authorization contained in or issued pursuant to those other parts
authorizes any transaction prohibited by this part. In addition,
licenses or authorizations contained in or issued pursuant to any other
provision of law or regulations do not authorize any transaction
prohibited by this part.
(b) No license or authorization contained in or issued pursuant to
this part relieves the involved parties from complying with any other
applicable laws or regulations. For example, no license or
authorization contained in or issued pursuant to this part authorizes
the export of goods or the export of technical data for which a
validated license would be required under the Export Administration
Regulations (15 CFR Part 368 et seq.) in the absence of such validated
license.
31 CFR 540.101 Subpart B -- Prohibitions
31 CFR 540.204 Prohibited imports of goods and services from Nicaragua.
Except as authorized by regulations, rulings, instructions, licenses,
or otherwise, the following may not be imported into the United States:
(a) Services of Nicaraguan origin; or
(b) Goods of Nicaraguan origin.
31 CFR 540.205 Prohibited exports of goods to Nicaragua.
Except as authorized, no goods may be exported from the United States
either to or destined for Nicaragua, except those for the organized
democratic resistance, and except donated articles such as food,
clothing, and medicine, intended to be used to relieve human suffering.
31 CFR 540.206 Prohibited transactions with Nicaraguan vessels.
Vessels of Nicaraguan registry are prohibited from entering into
United States ports.
31 CFR 540.207 Prohibited transactions with Nicaraguan air carriers.
Nicaraguan air carriers are prohibited from providing air
transportation to or from points in the United States.
31 CFR 540.208 Prohibited related transactions.
(a) No person may order, buy, receive, conceal, store, use, sell,
loan, dispose of, transfer, transport, finance, forward, or otherwise
service, in whole or in part, any commodity or technical data subject to
the prohibitions of this part, with knowledge or reason to know that a
violation of the International Emergency Economic Powers Act or any
regulation, order, or license has occurred, is about to occur, or is
intended to occur with respect to such commodity or technical data.
(b) Payments are not prohibited if the transaction to which they
relate is not prohibited.
31 CFR 540.209 Evasions; effective date.
(a) Any transaction for the purpose of, or which has the effect of,
evading or avoiding any of the prohibitions set forth in this subpart is
hereby prohibited.
(b) Unless otherwise specified, the prohibitions in this part shall
be effective from 12:01 a.m., Eastern Daylight Time, May 7, 1985.
31 CFR 540.209 Subpart C -- General Definitions
31 CFR 540.301 Effective date.
The term effective date means 12:01 a.m., Eastern Daylight Time, May
7, 1985.
31 CFR 540.302 Nicaragua; Nicaraguan.
The term Nicaragua means the country of Nicaragua and any Nicaraguan
territory, dependency, colony, protectorate, mandate, dominion,
possession or place subject to the jurisdiction thereof, or any
territory which is controlled or occupied by the military, naval or
police forces or other authority of Nicaragua. The term Nicaraguan
means pertaining to Nicaragua as defined in this section.
31 CFR 540.308 Person.
The term person means an individual, partnership, association,
corporation or other organization.
31 CFR 540.316 Nicaraguan origin.
The term goods or services of Nicaraguan origin includes:
(a) Goods produced, manufactured, grown, or processed within
Nicaragua;
(b) Goods which have entered into Nicaraguan commerce; and
(c) Services performed in Nicaragua or by a Nicaraguan national.
However, the term ''services of Nicaraguan origin'' does not include
diplomatic and consular services performed on behalf of the Nicaraguan
Government.
31 CFR 540.321 United States.
The term United States means the United States and all areas under
the jurisdiction or authority thereof, including the Trust Territory of
the Pacific Islands.
31 CFR 540.321 Subpart D -- Interpretations
31 CFR 540.401 Offshore transactions.
(a) The prohibitions contained in 540.204 do not apply to the
importation into locations outside the United States of goods or
services of Nicaraguan origin.
(b) The prohibitions contained in 540.205 do not apply to the export
of goods to or destined for Nicaragua from locations outside the United
States.
31 CFR 540.402 Technical data.
The term ''goods'' shall include, inter alia, technical data in
tangible form including, but not limited to, a model, prototype,
blueprint, drawing, operating manual, computer software, tape recording,
microfiche, or other material in machine readable form. The term
''goods'' does not apply to oral transmission of technical data in the
course of performance of services, telephone communications, lectures,
seminars, or plant visits.
31 CFR 540.403 Imports of services of Nicaraguan origin.
(a) Services of Nicaraguan origin are imported into the United States
when:
(1) Such services are performed in Nicaragua and are contracted for,
or on behalf of, a person within the United States and for the benefit
of a person within the United States; or
(2) Such services are performed in the United States by a national of
Nicaragua who is in the United States for purposes of performing such
services as an employee or contractor of a business or governmental
entity located in Nicaragua.
Example 1: A company located in the United States requests an
opinion from a Nicaraguan accounting firm. Section 540.204 prohibits
the U.S. firm from contracting for and receiving such an opinion.
Example 2: A company located in the United States contracts with an
airline company located in Nicaragua to provide maintenance personnel
for the U.S. company's aircraft in the United States. Section 540.204
prohibits the U.S. company from contracting for and receiving such
services.
(b) Services of Nicaraguan origin are not imported into the United
States when such services are provided in the United States by a
Nicaraguan national who, during indefinite residency in the United
States, works as, for example, a teacher, athlete, restaurant or
domestic worker, or a person employed in any other regular occupation.
(c) Section 540.204 does not prohibit a U.S. person from obtaining
technical, custodial, legal, accounting, banking, shipping, or other
services from Nicaragua when they are to be rendered outside the United
States, including in Nicaragua.
31 CFR 540.404 Transshipment through United States prohibited.
(a) The prohibitions in 540.205 apply to the import into the United
States, for transshipment or transit, of goods which are intended or
destined for Nicaragua.
(b) The prohibitions in 540.204 apply to the import into the United
States, for transshipment or transit, of goods of Nicaraguan origin
which are intended or destined for third countries.
31 CFR 540.405 Imports from third countries; transshipments.
(a) Imports into the United States from third countries of goods
containing raw materials or components of Nicaraguan origin are not
prohibited if those raw materials or components have been incorporated
into manufactured products or otherwise substantially transformed in a
third country.
(b) Imports into the United States of goods of Nicaraguan origin that
have been transshipped through a third country without being
incorporated into manufactured products or otherwise substantially
transformed in a third country are prohibited.
31 CFR 540.406 Exports to third countries; transshipments.
(a) Exports from the United States to third countries of goods to be
incorporated into products for re-export to Nicaragua are not prohibited
where the exporter has reasonable cause to believe that the goods will
be incorporated into manufactured products or otherwise substantially
transformed before shipment to Nicaragua.
(b) Exports from the United States to third countries are prohibited
where the exporter has reason to believe that the goods will be
transshipped to Nicaragua without being incorporated into manufactured
products or otherwise substantially transformed in a third country.
31 CFR 540.407 Imports into bonded warehouse or foreign trade zone.
The prohibition in 540.204 applies to imports into a bonded
warehouse or foreign trade zone of the United States.
31 CFR 540.408 Release from bonded warehouse or foreign trade zone.
Section 540.204 does not prohibit the release from a bonded warehouse
or a foreign trade zone of goods of Nicaraguan origin imported into a
bonded warehouse or a foreign trade zone prior to the effective date.
31 CFR 540.409 Import and export of goods in transit before the
effective date.
(a) Section 540.204 does not apply to goods:
(1) If imported by vessel, where the vessel arrives within the limits
of a port in the United States prior to the effective date with the
intent to unlade such goods; or (2) if imported other than by vessel,
where the goods arrive within the Customs territory of the United States
before the effective date.
(b) Section 540.205 does not apply to goods:
(1) If exported by vessel or airline, where the goods are laden on
board before the effective date; or (2) if exported other than by
vessel or airplane where the goods have left the United States before
the effective date.
(c) Payments relating to goods described in paragraphs (a) and (b) of
this section are authorized, even where such related payments occur
after the effective date.
31 CFR 540.410 Transactions relating to unprohibited offshore
transactions.
The prohibitions in subpart B do not extend to transactions by a
person located in the United States relating to transactions outside the
United States which are themselves not prohibited by subpart B, such as
financial, service or brokerage transactions involving offshore
transactions with Nicaragua.
31 CFR 540.410 Subpart E -- Licenses, Authorizations and Statements of Licensing Policy
31 CFR 540.502 Effect of license or authorization.
(a) No license or other authorization contained in this part, or
otherwise issued by or under the direction of the Secretary of the
Treasury pursuant to section 203 of the International Emergency Economic
Powers Act, shall be deemed to authorize or validate any transaction
effected prior to the issuance of the license, unless such license or
other authorization specifically so provides.
(b) No regulation, ruling, instruction, or license authorizes a
transaction prohibited under this part unless the regulation, ruling,
instruction, or license is issued by the Treasury Department and
specifically refers to this part. No regulation, ruling, instruction,
or license referring to this part shall be deemed to authorize any
transactions prohibited by any provision of parts 500, 505, 515, 520, or
535 of this chapter unless the regulation, ruling, instruction or
license specifically refers to such provision.
(c) Any regulation, ruling, instruction or license authorizing a
transaction otherwise prohibited under this part has the effect of
removing a prohibition or prohibitions in subpart B from the
transaction, but only to the extent specifically stated by its terms.
Unless the regulation, ruling, instruction or license otherwise
specifies, such an authorization does not create any right, duty,
obligation, claim, or interest in, or with respect to, any property
which would not otherwise exist under ordinary principles of law.
31 CFR 540.503 Exclusion from licenses and authorizations.
The Secretary of the Treasury reserves the right to exclude any
person from the operation of any license or from the privileges therein
conferred or to restrict the applicability thereof with respect to
particular persons, transactions or property or classes thereof. Such
action shall be binding upon all persons receiving actual notice or
constructive notice thereof.
31 CFR 540.504 Imports paid for prior to May 1, 1985.
(a) Goods of Nicaraguan origin that were entirely paid for prior to
May 1, 1985, may be imported into the United States after the effective
date, upon certification by the importer to U.S. Customs of the prior
full payment.
(b) Upon application to the Office of Foreign Assets Control,
specific licenses may be issued authorizing the importation into the
United States after the effective date of:
(1) Goods of Nicaraguan origin that were partially paid for prior to
May 1, 1985; and
(2) Services of Nicaraguan origin that were fully or partially paid
for prior to May 1, 1985.
31 CFR 540.505 Exports pursuant to prior contractual commitments.
(a) Goods that were in transit to Nicaragua before the effective date
may be exported in accordance with the provisions of 540.409.
(b) Specific licenses will normally be granted authorizing the export
of goods from the United States to Nicaragua after the effective date
and before November 1, 1985, provided the exporter demonstrates that it
has a legal obligation to export the goods to Nicaragua under a contract
entered into prior to May 1, 1985, and either that:
(1) The exporter's obligation is guaranteed under an outstanding
performance bond which can successfully be invoked by the Nicaraguan
importer; or
(2) The exporter is unable to sell the goods to any other purchaser
without incurring a loss.
31 CFR 540.533 Certain exports authorized.
(a) All transactions ordinarily incident to the exportation of any
item, commodities, or products from the United States to or destined for
Nicaragua are authorized if such exports are authorized under one or
more of the following regulations administered by the Department of
Commerce:
(1) 15 CFR 371.6, General license BAGGAGE: accompanied and
unaccompanied baggage;
(2) 15 CFR 371.13, General license GUS: Shipments to personnel and
agencies of the U.S. Government;
(3) 15 CFR 371.18, General license GIFT: Shipments of gift parcels;
(4) 15 CFR 379.3, General license GTDA: technical data available to
all destinations;
(5) 15 CFR 371.19, General license GATS: relating to
foreign-registry civil aircraft (except that transactions relating to
Nicaraguan-registered air carriers are not authorized), and to U.S. air
carrier aircraft and other U.S.-registry civil aircraft.
(b) All transactions are authorized ordinarily incident to the
exportation from the United States to or destined for Nicaragua of the
following items described as cited:
(1) 15 CFR 399.1, Commodity Control List, Group 5, CCL No. 7599I:
microfilm that reproduces the content of certain publications, and
similar materials.
(2) 15 CFR 399.1, Commodity Control List, Group 9, CCL No. 7999I:
certain publications and related materials.
31 CFR 540.534 Certain imports for diplomatic or official personnel
authorized.
All transactions ordinarily incident to the importation of any goods
or services into the United States from Nicaragua are authorized if such
imports are destined for official or personal use by personnel employed
by Nicaraguan diplomatic missions or Nicaraguan missions to
international organizations located in the United States, and such
imports are not for resale.
31 CFR 540.535 Certain services relating to participation in various
events authorized.
The importation of services of Nicaraguan origin into the United
States is authorized where a Nicaraguan national enters the United
States on a visa issued by the State Department for the purpose of
participating in a public conference, performance, exhibition or similar
event.
31 CFR 540.536 Import of publications authorized.
The importation into the United States is authorized of all
Nicaraguan publications, including books, newspapers, magazines, films,
phonograph records, tape recordings, photographs, microfilm, microfiche,
posters, and similar materials.
31 CFR 540.537 Import of certain gifts authorized.
The importation into the United States is authorized for goods of
Nicaraguan origin sent as gifts to persons in the United States where
the value of the gift is not more than $100.
31 CFR 540.538 Import of accompanied baggage authorized.
Persons entering the United States directly or indirectly from
Nicaragua are authorized to import into the United States personal
accompanied baggage normally incident to travel.
31 CFR 540.539 Commercial exports of certain medical supplies.
Commercial exports to Nicaragua of medicines and supplies intended
strictly for medical purposes are authorized.
31 CFR 540.540 Exports for humanitarian, educational, and religious
purposes.
Applications for specific licenses to export goods to Nicaragua for
humanitarian, educational, or religious purposes will be considered on a
case-by-case basis.
31 CFR 540.541 Certain exports by intergovernmental organizations.
Applications by intergovernmental organizations in the United States
for exportation of U.S. goods to Nicaragua will be considered on a
case-by-case basis.
31 CFR 540.542 Telecommunications and mail transactions authorized.
All transactions of common carriers incident to the receipt or
transmission of telecommunications and mail between the United States
and Nicaragua are authorized.
31 CFR 540.599 Lifting of sanctions.
(a) The prohibitions contained in 540.204 through 540.209 of this
part do not apply to any transaction occurring after 9:10 a.m. e.s.t.,
March 13, 1990.
(b) Nothing in this section affects any action taken or proceeding
pending and not finally concluded or determined at, or any action or
proceeding based on any act committed prior to, or any rights or duties
that matured or penalties that were incurred prior to 9:10 a.m. e.s.t.,
March 13, 1990.
(55 FR 28614, July 12, 1990)
31 CFR 540.599 Subpart F -- Reports
31 CFR 540.601 Required records.
Every person engaging in any transaction subject to the provisions of
this part shall keep a full and accurate record of each transaction in
which he engages, regardless of whether such transaction is effected
pursuant to license or otherwise, and such record shall be available for
examination for at least two years after the date of such transaction.
31 CFR 540.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, from time to time and at any time as may be
required, complete information relative to any transaction, regardless
of whether such transaction is effected pursuant to license or
otherwise, subject to the provisions of this part. Such reports may be
required to include the production of any books of account, contracts,
letters or other papers, connected with any such transaction or
property, in the custody or control of the persons required to make such
reports. Reports with respect to transactions may be required either
before or after such transactions are completed. The Secretary of the
Treasury may, through any person or agency, investigate any such
transaction or property or any violation of the provisions of this part
regardless of whether any report has been required or filed in
connection therewith.
31 CFR 540.602 Subpart G -- Penalties
31 CFR 540.701 Penalties.
(a) Attention is directed to section 206 of the International
Emergency Economic Powers Act, which provides in part:
A civil penalty not to exceed $10,000 may be imposed on any person
who violates any license, order, or regulation issued under this title.
Whoever willfully violates any license, order, or regulation issued
under this title shall, upon conviction, be fined not more than $50,000
or, if a natural person, may be imprisoned for not more than ten years,
or both; and any officer, director, or agent of any corporation who
knowingly participates in such violation may be punished by a like fine,
imprisonment, or both.
This section of the International Emergency Economic Powers Act is
applicable to violations of any provision of this part and to violations
of the provisions of any license, ruling, regulation, order, direction,
or instruction issued by or pursuant to the direction or authorization
of the Secretary of the Treasury pursuant to this part or otherwise
under the International Emergency Economic Powers Act.
(b) Attention is also directed to 18 U.S.C. 1001, which provides:
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representation or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
31 CFR 540.702 Detention of shipments.
Import shipments into the United States of goods of Nicaraguan origin
in violation of 540.204 and export shipments from the United States of
goods to or destined for Nicaragua in violation of 540.205 shall be
detained. No such import or export shall be permitted to proceed,
except as specifically authorized by the Secretary of the Treasury.
Such shipments shall be subject to licensing, penalties, or forfeiture
action, under the Customs laws or other applicable provision of law,
depending on the circumstances.
31 CFR 540.703 Prepenalty notice.
(a) When required. If the Director of the Office of Foreign Assets
Control (hereinafter ''Director'') has reasonable cause to believe that
there has occurred a violation of any provision of this part or a
violation of the provisions of any license, ruling, regulation, order,
direction or instruction issued by or pursuant to the direction or
authorization of the Secretary of the Treasury pursuant to this part or
otherwise under the International Emergency Economic Powers Act, and the
Director determines that further proceedings are warranted, he shall
issue to the person concerned a notice of his intent to impose a
monetary penalty. The prepenalty notice shall be issued whether or not
another agency has taken any action with respect to this matter.
(b) Contents -- (1) Facts of violation.
The prepenalty notice shall: (i) Describe the violation.
(ii) Specify the laws and regulations allegedly violated.
(iii) State the amount of the proposed monetary penalty.
(2) Right to make presentations. The prepenalty notice also shall
inform the person of his right to make a written presentation within
thirty (30) days of mailing of the notice as to why a monetary penalty
should not be imposed, or, if imposed, why it should be in a lesser
amount than proposed.
(53 FR 7356, Mar. 3, 1988)
31 CFR 540.704 Presentation responding to prepenalty notice.
(a) Time within which to respond. The named person shall have 30
days from the date of mailing of the prepenalty notice to make a written
presentation to the Director.
(b) Form and contents of written presentation. The written
presentation need not be in any particular form, but shall contain
information sufficient to indicate that it is in response to the
prepenalty notice. It should contain responses to the allegations in
the prepenalty notice and set forth the reasons why the person believes
the penalty should not be imposed or, if imposed, why it should be in a
lesser amount than proposed.
(53 FR 7356, Mar. 8, 1988)
31 CFR 540.705 Penalty notice.
(a) No violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was no violation by the person named in the prepenalty notice, he
promptly shall notify the person in writing of that determination and
that no monetary penalty will be imposed.
(b) Violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was a violation by the person named in the prepenalty notice, he
promptly shall issue a written notice of the imposition of the monetary
penalty to that person.
(53 FR 7356, Mar. 8, 1988)
31 CFR 540.706 Referral to United States Department of Justice.
In the event that the person named does not pay the penalty imposed
pursuant to this subpart or make payment arrangements acceptable to the
Director within thirty days of the mailing of the written notice of the
imposition of the penalty, the matter shall be referred to the United
States Department of Justice, for appropriate action to recover the
penalty in a civil suit in a Federal district court.
(53 FR 7357, Mar. 8, 1988)
31 CFR 540.706 Subpart H -- Procedures
31 CFR 540.801 Licensing.
(a) General licenses. General licenses have been issued authorizing
under appropriate terms and conditions certain types of transactions
which are subject to the prohibitions contained in subpart B of this
part. All such licenses are set forth in subpart E of this part. It is
the policy of the Office of Foreign Assets Control not to grant
applications for specific licenses authorizing transactions to which the
provisions of an outstanding general license are applicable. Persons
availing themselves of certain general licenses may be required to file
reports and statements in accordance with the instructions specified in
those licenses.
(b) Specific licenses -- (1) General course of procedure.
Transactions subject to the prohibitions contained in subpart B of this
part which are not authorized by general license may be effected only
under specific licenses. The specific licensing activities of the
Office of Foreign Assets Control are performed by its Washington Office
and by the Federal Reserve Bank of New York.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transaction prohibited by or pursuant to this
part are to be filed in duplicate with the Federal Reserve Bank of New
York. Any person having an interest in a transaction or proposed
transaction may file an application for a license authorizing such
transaction, and there is no requirement that any other person having an
interest in such transaction shall or should join in making or filing
such application.
(3) Information to be supplied. The applicant must supply all
information specified by the respective forms and instructions. Such
documents as may be relevant shall be attached to each application as a
part of such application except that documents previously filed with the
Office of Foreign Assets Control may, where appropriate, be incorporated
by reference. Applicants may be required to furnish such further
information as is deemed necessary to a proper determination by the
Office of Foreign Assets Control. If an applicant or other party in
interest desires to present additional information or discuss or argue
the application, he may do so at any time before or after decision.
Arrangements for oral presentation should be made with the Office of
Foreign Assets Control.
(4) Effect of denial. The denial of a license does not preclude the
reopening of an application or the filing of a further application. The
applicant or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition upon the
issuance of any license, the licensee may be required to file reports
with respect to the transaction covered by the license, in such form and
at such times and places as may be prescribed in the license or
otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the Treasury
or by the Federal Reserve Bank of New York, acting in accordance with
such regulations, rulings and instructions as the Secretary of the
Treasury or the Office of Foreign Assets Control may from time to time
prescribe, in such cases or classes of cases as the Secretary of the
Treasury or the Office of Foreign Assets Control may determine, or
licenses may be issued by the Secretary of the Treasury acting directly
or through any designated person, agency, or instrumentality.
31 CFR 540.803 Decisions.
The Office of Foreign Assets Control or the Federal Reserve Bank of
New York will advise each applicant of the decision respecting filed
applications. The decision of the Office of Foreign Assets Control
acting on behalf of the Secretary of the Treasury with respect to an
application shall constitute a final agency action.
31 CFR 540.805 Amendment, modification, or revocation.
The provisions of this part and any rulings; licenses, whether
general or specific; authorizations; instructions; orders; or forms
issued hereunder may be amended, modified, or revoked at any time.
31 CFR 540.806 Rulemaking.
(a) All rules and other public documents are issued by the Secretary
of the Treasury upon recommendation of the Director of the Office of
Foreign Assets Control. Except to the extent that there is involved any
military, naval, or foreign affairs function of the United States or any
matter relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts, and except when interpretative
rules, general statements of policy, or rules of agency organization,
practice, or procedure are involved or when notice and public procedure
are impracticable, unnecessary or contrary to the public interest,
interested persons will be afforded an opportunity to participate in
rulemaking through submission of written data, views, or arguments, with
oral presentation in the discretion of the Director. In general,
rulemaking by the the Office of Foreign Assets Control involves foreign
affairs functions of the United States. Wherever possible, however, it
is the practice to hold informal consultations with interested groups or
persons before the issuance of any rule or other public document.
(b) Any interested person may petition the Director of the Office of
Foreign Assets Control in writing for the issuance, amendment or repeal
of any rule.
31 CFR 540.807 Delegation by the Secretary of the Treasury.
Any action which the Secretary of the Treasury is authorized to take
pursuant to Executive Order 12513 or the International Emergency
Economic Powers Act may be taken by the Director, Office of Foreign
Assets Control, or by any other person to whom the Secretary of the
Treasury has delegated authority so to act.
31 CFR 540.808 Customs procedures: Merchandise specified in 540.204.
(a) With respect to merchandise specified in 540.204 appropriate
Customs officers shall not accept or allow any:
(1) Entry for consumption or warehouse (including any appraisement
entry, any entry of goods imported in the mails, regardless of value,
and any informal entries);
(2) Entry for immediate exportation;
(3) Entry for transportation and exportation;
(4) Withdrawal from warehouse;
(5) Entry, transfer or withdrawal from a foreign trade zone; or
(6) Manipulation or manufacture in a warehouse or in a foreign trade
zone, unless either:
(i) The merchandise was imported prior to 12:01 a.m., May 7, 1985, or
(ii) A specific license pursuant to this part is presented, or
(iii) Instructions from the Office of Foreign Assets Control, either
direct or through the Federal Reserve Bank of New York, authorizing the
transaction are received.
(b) Whenever a specific license is presented to an appropriate
Customs officer in accordance with this section, one additional legible
copy of the entry, withdrawal or other appropriate document with respect
to the merchandise involved shall be filed with the appropriate Customs
officers at the port where the transaction is to take place. Each copy
of any such entry, withdrawal or other appropriate document, including
the additional copy, shall bear plainly on its face the number of the
license pursuant to which it is filed. The original copy of the
specific license shall be presented to the appropriate Customs officers
in respect of each such transaction and shall bear a notation in ink by
the licensee or person presenting the license showing the description,
quantity and value of the merchandise to be entered, withdrawn or
otherwise dealt with. This notation shall be so placed and so written
that there will exist no possibility of confusing it with anything
placed on the license at the time of its issuance. If the license in
fact authorizes the entry, withdrawal or other transaction with regard
to the merchandise the appropriate Customs officer, or other authorized
Customs employee, shall verify the notation by signing or initialing it
after first assuring himself that it accurately describes the
merchandise it purports to represent. The license shall thereafter be
returned to the person presenting it and the additional copy of the
entry, withdrawal or other appropriate document shall be forwarded by
the appropriate Customs officer to the Office of Foreign Assets Control.
(c) Whenever a person shall present an entry, withdrawal or other
appropriate document affected by this section and shall assert that no
specific Foreign Assets Control license is required in connection
therewith, the appropriate Customs officer shall withhold action thereon
and shall advise such person to communicate directly with the Federal
Reserve Bank of New York, Foreign Assets Control Division, to request
that instructions be sent to the Customs officer to authorize him to
take action with regard thereto.
31 CFR 540.809 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control which are
required by 5 U.S.C. 552 to be made available to the public shall be
made available in accordance with the definitions, procedures, payment
of fees, and other provisions of the regulations on the Disclosure of
Records of the Office of the Secretary and of other bureaus and offices
of the Department issued under 5 U.S.C. 552 and published as part 1 of
this title 31 of the Code of Federal Regulations.
(b) Any form issued for use in connection with the Nicaraguan Trade
Control Regulations may be obtained in person or by writing to the
Office of Foreign Assets Control, Treasury Department, Washington, DC
20220, or the Foreign Assets Control Division, Federal Reserve Bank of
New York, 33 Liberty Street, New York, N.Y. 10045.
31 CFR 540.809 Subpart I -- Miscellaneous Provisions
31 CFR 540.901 Paperwork Reduction Act notice.
The information collection requirements in 540.504, 540.505,
540.540, 540.541, 540.601, and 540.602 have been approved by the Office
of Management and Budget and assigned control number 1505-0089.
(50 FR 27438, July 3, 1985)
31 CFR 540.901 PART 545 -- SOUTH AFRICAN TRANSACTIONS REGULATIONS
31 CFR 540.901 Pt. 545
31 CFR 540.901 Subpart A -- Relation of this Part to Other Laws and
Regulations
Sec.
545.101 Relation of this part to other laws and regulations.
31 CFR 540.901 Subpart B -- Prohibitions
545.201 Prohibition on importation of South African gold coins.
545.202 Prohibition on loans.
545.203 Effective dates.
545.204 Evasions.
545.205 Prohibition on importation of South African agricultural
products and food.
545.206 Prohibition on importation of iron ore, iron and steel.
545.207 Prohibition on sugar imports.
545.208 Prohibition on importation of products from parastatal
organizations.
545.209 Prohibition on South African Government bank accounts.
545.210 Prohibition on new investment in South Africa.
545.211 Prohibition on importation of South African uranium ore,
uranium oxide, coal, and textiles.
31 CFR 540.901 Subpart C -- General Definitions
545.301 Krugerrands and gold coins.
545.302 United States.
545.303 Importation.
545.304 Loan.
545.305 Financial institution.
545.306 Government of South Africa; South African Government.
545.308 Person.
545.309 Entity.
545.310 Affiliate.
545.311 Prohibited borrower.
545.312 South Africa.
545.313 National of the United States; U.S. national.
545.314 South African entity.
545.315 Parastatal organization.
545.316 The Act.
545.317 Code of Conduct.
545.318 Controlled South African entity.
545.319 New investment.
545.320 Prohibited recipient.
545.321 United States depository institution.
31 CFR 540.901 Subpart D -- Interpretations
545.401 Reference to amended sections.
545.402 Effect of amendment of sections of this chapter or of other
orders, etc.
545.403 Krugerrand and gold coin jewelry.
545.404 Rescheduling existing loans.
545.406 Loans through intermediaries.
545.407 Substitution of the South African Government as obligor.
545.408 Approval of loans by foreign affiliates.
545.409 Loan participations.
545.410 South African law.
545.411 Third-country products otherwise exported from South Africa.
545.412 Release from bonded warehouse or foreign trade zone.
545.413 Import prohibitions applied cumulatively.
545.414 U.S. Customs Service rules of origin.
545.415 Trading in South African securities; American Depositary
Receipts; recapitalizations.
545.416 Trading in commodities.
545.417 Expenses to comply with Code of Conduct.
545.418 Sales of goods, services, and technology.
545.419 Real estate acquisition.
545.420 Bank accounts in South Africa.
545.421 Charitable contributions.
545.422 Foreign exchange transactions.
545.423 Confirmation of short-term trade credits.
545.424 Firm owned by black South Africans.
545.425 Substantial transformation of uranium ore and oxide.
545.426 Repair of U.S.-origin goods exported by South African
parastatals.
31 CFR 540.901 Subpart E -- Licenses, Authorizations and Statements of
Licensing Policy
545.501 Effect of subsequent license or authorization.
545.502 Exclusion from licenses and authorizations.
545.503 Loans to benefit persons disadvantaged by the apartheid
system.
545.599 Lifting of sanctions.
31 CFR 540.901 Subpart F -- Reports
545.601 Required records.
545.602 Reports to be furnished on demand.
545.603 Registration of new investment in firms owned by black South
Africans.
545.604 Registration of contributions necessary to enable a
controlled South African entity to operate in an economically sound
manner.
31 CFR 540.901 Subpart G -- Penalties
545.701 Penalties.
545.702 Prepenalty notice.
545.703 Presentation responding to prepenalty notice.
545.704 Penalty notice.
545.705 Referral to United States Department of Justice.
31 CFR 540.901 Subpart H -- Procedures
545.801 Licensing.
545.802 Decisions.
545.803 Amendment, modification, or revocation.
545.804 Rulemaking.
545.805 Delegation by the Secretary of the Treasury.
545.806 Rules governing availability of information.
545.807 Certification concerning parastatal organizations.
545.808 Certification concerning hides, skins, leather, and furskins
of animals from the wild.
31 CFR 540.901 Subpart I -- Miscellaneous
545.901 Paperwork Reduction Act notice.
Authority: 22 U.S.C. 5001-5116, E.O. 12571, 51 FR 39505, October 29,
1986.
Source: 50 FR 41682, Oct. 15, 1985, unless otherwise noted.
31 CFR 540.901 Subpart A -- Relation of this Part to Other Laws and Regulations
31 CFR 545.101 Relation of this part to other laws and regulations.
(a) This part is independent of the other parts of this chapter. No
license or authorization contained in or issued pursuant to the other
parts of this chapter authorizes any transaction prohibited by this
part. In addition, no license or authorization contained in or issued
pursuant to any other provision of law or regulation authorizes any
transaction prohibited by this part.
(b) No license or authorization contained in or issued pursuant to
this part relieves the involved parties from complying with any other
applicable laws or regulations.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.101 Subpart B -- Prohibitions
31 CFR 545.201 Prohibition on importation of South African gold coins.
No person, including a bank, may import into the United States any
South African Krugerrand, or any other gold coin minted in South Africa
or offered for sale by the Government of South Africa.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.202 Prohibition on loans.
(a) No national of the United States or financial institution in the
United States may make or approve any loan or other extension of credit,
directly or indirectly, to the Government of South Africa or to any
corporation, partnership or other organization which is owned or
controlled by the Government of South Africa.
(b) The prohibition contained in paragraph (a) of this section shall
not apply to:
(1) A loan or extension of credit for any education, housing, health,
or humanitarian benefit which (i) is available to all persons on a
nondiscriminatory basis; or (ii) is available in a geographic area
accessible to all population groups without any legal or administrative
restriction, provided that no such loan shall be made without first
obtaining a specific license pursuant to 545.503; or
(2) A loan or extension of credit by a national of the United States
that is not a financial institution in the United States, for which an
agreement was entered into before October 2, 1986, or a loan or
extension of credit by a financial institution in the United States for
which an agreement was entered into before September 9, 1985.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.203 Effective dates.
(a) The effective date of the import prohibition in 545.201 with
respect to Krugerrands is 12:01 a.m. Eastern Daylight Time, October 11,
1985. The effective date of all other prohibitions in 545.201 is 12:01
a.m. Eastern Daylight Time, October 2, 1986.
(b) The effective date of the prohibition in 545.202 with respect to
financial institutions in the United States is 12:01 a.m. Eastern
Standard Time, November 11, 1985. The effective date with respect to
nationals of the United States that are not financial institutions in
the United States is 12:01 a.m. Eastern Daylight Time, October 2, 1986.
(c) The effective date of the prohibitions in 545.205 and 545.207
is 12:01 a.m. Eastern Daylight Time, October 3, 1986.
(d) The effective date of the prohibitions in 545.206 and 545.208
is 12:01 a.m. Eastern Daylight Time, October 2, 1986.
(e) The effective date of the prohibitions in 545.209 and 545.210
is 12:01 a.m. Eastern Standard Time, November 16, 1986.
(f) The effective date of the prohibition in 545.211 is 12:01 a.m.
Eastern Standard Time, December 31, 1986.
(51 FR 41907, Nov. 19, 1986, as amended at 51 FR 46854, Dec. 29,
1986; 52 FR 7274, Mar. 10, 1987)
31 CFR 545.204 Evasions.
The regulations set forth in this part shall apply to any person who
undertakes or causes to be undertaken any transaction or activity with
the intent to evade Executive Order 12532, Executive Order 12535, the
Act, or these regulations.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.205 Prohibition on importation of South African agricultural
products and food.
No (a) agricultural commodity or product or any byproduct or
derivative thereof that is a product of South Africa, or (b) article
that is suitable for human consumption that is a product of South
Africa, may be imported into the United States.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.206 Prohibition on importation of iron ore, iron and steel.
No iron or steel produced or iron ore extracted in South Africa may
be imported into the United States, except that any such commodity may
be imported pursuant to a contract entered into before August 15, 1986,
if no shipment of such commodity is imported by a national of the United
States under such contract after December 31, 1986.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.207 Prohibition on sugar imports.
No sugars, sirups, or molasses that are products of the Republic of
South Africa may be imported into the United States.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.208 Prohibition on importation of products from parastatal
organizations.
(a) No article which is grown, produced, manufactured, marketed, or
otherwise exported by a parastatal organization of South Africa may be
imported into the United States, except for:
(1) Those strategic minerals for which the President has certified to
the Congress that the quantities essential for the economy or defense of
the United States are unavailable from reliable and secure suppliers;
and
(2) Except as otherwise provided in this part, any article to be
imported pursuant to a contract entered into before August 15, 1986,
provided that no shipments may be received by a national of the United
States under such contract after April 1, 1987.
(b) Pursuant to 545.413 of this part, articles grown, produced,
manufactured, marketed, or otherwise exported by a parastatal
organization of South Africa, the importation of which is otherwise
banned pursuant to subpart B of this part, are not eligible for
importation pursuant to section 303(a)(1) of the Act or 545.208(a)(2)
of this part.
(c) Nothing in this section prohibits the importation into the United
States of any publication, including any book, newspaper, magazine,
film, phonograph record, tape recording, photograph, microfilm,
microfiche, poster, or any other similar material.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.209 Prohibition on South African Government bank accounts.
A United States depository institution may not accept, receive, or
hold a deposit account from the Government of South Africa or from any
agency or entity owned or controlled by the Government of South Africa,
except for such accounts which may be authorized pursuant to specific
license for diplomatic or consular purposes.
(51 FR 46854, Dec. 29, 1986)
31 CFR 545.210 Prohibition on new investment in South Africa.
(a) No national of the United States may, directly or through another
person, make any new investment in South Africa.
(b) The prohibition contained in this section shall not apply to a
firm owned by black South Africans, provided that prior registration of
new investment in such a firm is filed pursuant to 545.603.
(51 FR 46854, Dec. 29, 1986)
31 CFR 545.211 Prohibition on importation of South African uranium ore,
uranium oxide, coal, and textiles.
(a) Notwithstanding any other provision of law, no (1) uranium ore,
(2) uranium oxide, (3) coal, or (4) textiles that are produced or
manufactured in South Africa may be imported into the United States.
(b) For purposes of this section, the term ''textiles'' does not
include any article provided for in item 812.10 or 813.10 of the Tariff
Schedules of the United States, 19 U.S.C. 1202.
(52 FR 7273, Mar. 10, 1987)
31 CFR 545.211 Subpart C -- General Definitions
31 CFR 545.301 Krugerrands and gold coins.
The terms Krugerrands and gold coins include Krugerrands and gold
coins of all denominations and sizes, and Krugerrands and gold coins
that have been modified, as by addition of a clasp or loop, into items
that can be worn as jewelry.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.302 United States.
The term United States includes the States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, and any territory
or possession of the United States.
(51 FR 41907, Nov. 19, 1986)
31 CFR 545.303 Importation.
The term importation means the bringing of any item within the
jurisdictional limits of the United States with the intent to unlade it.
(50 FR 46726, Nov. 12, 1985)
31 CFR 545.304 Loan.
(a) The term loan means any transfer or extension of funds or credit
on the basis of an obligation to repay, or any assumption or guarantee
of the obligation of another to repay an extension of funds or credit,
including, but not limited to, overdrafts; currency swaps; the
purchase by a financial institution in the United States of debt
securities issued by the Government of South Africa after November 11,
1985; the purchase of debt or equity securities issued by the
Government of South Africa or a South African entity on or after October
2, 1986; the purchase of a loan made by another person; the sale of
financial assets, including precious metals, subject to an agreement to
repurchase; a renewal or refinancing whereby new funds or credits are
transferred or extended to a prohibited borrower or recipient; or the
issuance of a standby letter of credit.
(b) The term loan does not include normal short-term trade financing
for goods or services having a maturity not exceeding one year, as by
commercial letters of credit, bankers' acceptances eligible for discount
by a Federal Reserve Bank pursuant to paragraph 7 of section 13 of the
Federal Reserve Act (12 U.S.C. 372), or similar trade credits; sales on
open account in cases where such sales are normal business practice; or
the rescheduling of existing loans, if no new funds or credits are
thereby transferred or extended to a prohibited borrower or recipient.
(51 FR 46854, Dec. 29, 1986)
31 CFR 545.305 Financial institution.
The term financial institution means any entity engaged in the
business of accepting deposits or making, transferring, holding, or
brokering loans, including, but not limited to, banks, savings banks,
trust companies, savings and loans associations, credit unions,
securities brokers and dealers, investment companies, employee pension
plans, holding companies of such institutions, and subsidiaries of any
of the foregoing.
(50 FR 46727, Nov. 12, 1985)
31 CFR 545.306 Government of South Africa; South African Government.
The term Government of South Africa and South African Government
include the government of the Republic of South Africa; the South
African Reserve Bank; the government of any political subdivision of
South Africa; the government of any territory under the administration,
legal or illegal, of South Africa; the governments of the
''bantustans'' or ''homelands,'' to which South African blacks are
assigned on the basis of ethnic origin, including the Transkei,
Bophuthatswana, Ciskei, and Venda; and any entity controlled by the
foregoing.
(51 FR 41908, Nov. 19, 1986, as amended at 51 FR 46854, Dec. 29,
1986; 55 FR 10618, Mar. 22, 1990)
31 CFR 545.308 Person.
The term person means an individual or an entity.
(50 FR 46727, Nov. 12, 1985)
31 CFR 545.309 Entity.
The term entity means a corporation, partnership, association, or
other organization.
(50 FR 46727, Nov. 12, 1985)
31 CFR 545.310 Affiliate.
The term affiliate includes, but is not limited to, an office,
branch, or subsidiary.
(51 FR 41908, Nov. 19, 1986)
31 CFR 545.311 Prohibited borrower.
The term prohibited borrower means a person, including the Government
of South Africa, to whom the making of a loan or other extension of
credit is prohibited by the terms of 545.202(a) or 545.210(a).
(51 FR 46854, Dec. 29, 1986)
31 CFR 545.312 South Africa.
The term South Africa includes the Republic of South Africa; any
territory under the administration, legal or illegal, of South Africa;
and the ''bantustans'' or ''homelands,'' to which South African blacks
are assigned on the basis of ethnic origin, including the Transkei,
Bophuthatswana, Ciskei, and Venda.
(51 FR 41908, Nov. 19, 1986, as amended at 55 FR 10618, Mar. 22,
1990)
31 CFR 545.313 National of the United States; U.S. national.
The terms national of the United States and U.S. national mean:
(a) A natural person who is a citizen of the United States, or who
owes permanent allegiance to the United States, or is an alien lawfully
admitted for permanent residence in the United States, as defined by
section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(20)); or
(b) A corporation, partnership, or other business association which
is organized under the laws of the United States, any State or territory
thereof, or the District of Columbia, including foreign branches and
offices of such entities.
(c) For purposes of 545.206, 545.208, and 545.210 of this part, the
terms national of the United States and U.S. national also mean a person
located in the United States.
(51 FR 41908, Nov. 19, 1986, as amended at 51 FR 46854, Dec. 29,
1986)
31 CFR 545.314 South African entity.
The term South African entity means:
(a) A corporation, partnership, or other business association or
entity organized in South Africa; or
(b) A branch, office, agency, or sole proprietorship in South Africa
of a person that resides or is organized outside South Africa.
(51 FR 41908, Nov. 19, 1986)
31 CFR 545.315 Parastatal organization.
(a) For purposes of 545.208, the term parastatal organization means
a corporation, partnership, or entity owned, controlled or subsidized by
the Government of South Africa, but does not mean a corporation,
partnership, or entity which previously received start-up assistance
from the South African Industrial Development Corporation but which is
now privately owned.
(b) Pursuant to section 2 of Executive Order 12571, 51 FR 39505 (Oct.
29, 1986), the Secretary of State is responsible for determining which
entities are parastatal organizations for purposes of this part. The
Secretary of State will publish periodic notices in the Federal Register
containing current lists of parastatal organizations. Determinations by
the Department of State will be used as the exclusive guide for
determining which South African entities are parastatal. Persons with
specific questions concerning parastatal organizations may contact the
Department of State, Office of Southern African Affairs, Washington, DC
20520.
(51 FR 41908, Nov. 19, 1986)
31 CFR 545.316 The Act.
The term the Act means the Comprehensive Anti-Apartheid Act of 1986,
Pub. L. 99-440, 100 Stat. 1086, as amended by H.J. Res. 756, Pub. L.
99- 631.
(51 FR 41908, Nov. 19, 1986)
31 CFR 545.317 Code of Conduct.
The term Code of Conduct means the Code of Conduct set forth in
208(a) of the Act, as well as the additional actions stated in, or
adopted pursuant to, that section which are intended to promote the end
of the apartheid system.
(51 FR 46854, Dec. 29, 1986)
31 CFR 545.318 Controlled South African entity.
The term controlled South African entity means --
(a) A corporation, partnership, or other business association or
entity organized in South Africa and owned or controlled, directly or
indirectly, by a national of the United States; or
(b) A branch, office, agency, or sole proprietorship in South Africa
of a national of the United States.
(51 FR 46854, Dec. 29, 1986)
31 CFR 545.319 New investment.
For purposes of 545.210, the term new investment means --
(a) A commitment or contribution of funds or other assets; and
(b) A loan or other extension of credit, as defined in 545.304; but
(c) Does not include --
(1) The reinvestment of profits generated by a controlled South
African entity into that same controlled South African entity or the
investment of such profits in a South African entity;
(2) Contributions of money or other assets where such contributions
are necessary to enable a controlled South African entity to operate in
an economically sound manner, without expanding its operations; or
(3)(i) The ownership or control of a share or interest in a South
African entity, or a controlled South African entity, or a debt or
equity security issued by the Government of South Africa or a South
African entity before October 2, 1986, or
(ii) The transfer or acquisition of such a share, interest, or debt
or equity security, if any such transfer or acquisition does not result
in a payment, contribution of funds or assets, or credit to a South
African entity, a controlled South African entity, or the Government of
South Africa.
(51 FR 46854, Dec. 29, 1986)
31 CFR 545.320 Prohibited recipient.
The term prohibited recipient means a person in whom the making of a
new investment is prohibited pursuant to 545.210.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.321 United States depository institution.
(a) For purposes of 545.209, the term United States depository
institution means a depository institution located in the United States,
but does not include the foreign branches of a depository institution
organized in the United States, or the parents, subsidiaries, branches
or offices located outside the United States of a depository institution
organized under foreign law.
(b) For purposes of this section, the term depository institution
means a depository institution as defined in section 19(b)(1) of the
Federal Reserve Act, 12 U.S.C. 461(b)(1).
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.321 Subpart D -- Interpretations
31 CFR 545.401 Reference to amended sections.
Reference to any section of this chapter or to any regulation,
ruling, order, instruction, direction or license issued pursuant to this
chapter shall be deemed to refer to the same as currently amended unless
otherwise so specified.
31 CFR 545.402 Effect of amendment of sections of this chapter or of
other orders, etc.
Any modification of this chapter or of any regulation, ruling, order,
instruction, direction or license issued by or under the direction of
the Secretary of the Treasury shall not, unless otherwise specifically
provided, be deemed to affect liability for any act performed or
omitted, or any civil or criminal proceeding commenced, prior to such
modification, and all penalties, forfeitures, and liabilities under any
such regulation, ruling, order, instruction, direction or license shall
continue and may be enforced as if such modification had not been made.
(51 FR 41908, Nov. 19, 1986)
31 CFR 545.403 Krugerrand and gold coin jewelry.
Section 545.201 prohibits the importation into the United States of
Krugerrands or any other South African gold coins that have been
modified, as by the addition of a clasp or loop, into items that can be
worn as jewelry. For example, importation of a necklace consisting of a
gold coin mounted on a chain would be prohibited. Section 545.201 does
not prohibit the reimportation into the United States of Krugerrand
jewelry which was originally imported into the United States prior to
October 11, 1985, or of other gold coin jewelry originally imported into
the United States prior to October 2, 1986, provided that (a) the
importer can demonstrate to the satisfaction of the Secretary of the
Treasury or his delegate that the initial importation was made before
the relevant effective date, and (b) the jewelry to be reimported is in
small quantities and for personal use only.
(51 FR 41908, Nov. 19, 1986)
31 CFR 545.404 Rescheduling existing loans.
Provided that no new funds or credits are thereby transferred or
extended to a prohibited borrower or a prohibited recipient, 545.202
and 545.210 do not prohibit a national of the United States or a
financial institution in the United States from rescheduling loans or
otherwise extending the maturities of existing loans, or from charging
fees, or interest at commercially reasonable rates, in connection
therewith.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.406 Loans through intermediaries.
Sections 545.202 and 545.210 prohibit a national of the United States
or a financial institution in the United States from making a loan to
any person in the United States or a foreign country, where the U.S.
national or financial institution has reason to believe that the loan is
being obtained for, or on behalf of, a prohibited borrower or recipient,
and that the relevant funds or credit will be made available to a
prohibited borrower or recipient.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.407 Substitution of the South African Government as obligor.
Section 545.202 does not prohibit a national of the United States or
a financial institution in the United States from complying with
applicable laws, regulations or other directives of the South African
Government requiring or permitting the South African Government to
become the primary or secondary obligor with respect to an outstanding
loan, provided that no new funds or credits are thereby transferred or
extended to a prohibited borrower.
(51 FR 41909, Nov. 19, 1986)
31 CFR 545.408 Approval of loans by foreign affiliates.
Sections 545.202 and 545.210 prohibit nationals of the United States
or financial institutions in the United States from approving loans by
their foreign affiliates to prohibited borrowers or recipients.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.409 Loan participations.
Sections 545.202 and 545.210 prohibit a national of the United States
or a financial institution in the United States from purchasing, or
otherwise acquiring a participation in, all or part of any loan made by
any other person or persons to a prohibited borrower or recipient,
regardless of the date of the original loan. However, the prohibition
of 545.202 does not apply if, in the case of a financial institution,
it is obligated to make the purchase under an agreement entered into
before September 9, 1985, or, in the case of a national of the United
States that is not a financial institution in the United States, it is
obligated to make the purchase under an agreement entered into before
October 2, 1986. The prohibitions of 545.202 and 545.210 do not apply
to the acquisition of all or part of a loan made by any other person or
persons to a prohibited borrower or recipient if such acquisition is
incidental to the purchase or acquisition of an entity or all or
substantially all of the assets of an entity that has previously made,
or acquired a participation in, such a loan.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.410 South African law.
If, under applicable laws of South Africa, a national of the United
States or a financial institution in the United States cannot obtain
enough information from a person in South Africa to enable it reasonably
to conclude that a loan is not being obtained for, or on behalf of, a
prohibited borrower or recipient, or that a new investment is not being
made in, or with respect to, a prohibited recipient, 545.202 or
545.210 prohibits the loan or new investment.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.411 Third-country products otherwise exported from South
Africa.
Products of third countries, e.g., Lesotho, Botswana, or Swaziland,
which are transshipped through South Africa for exportation to the
United States will not be deemed ''otherwise exported by a parastatal
organization of South Africa'' for purposes of 545.208 merely because
such goods are transported, graded, packaged, repackaged, containerized,
or otherwise serviced in transit by a parastatal organization of South
Africa. The foregoing interpretation shall not apply if the Government
of South Africa or a parastatal organization has any financial interest
in the export sale of such goods beyond remuneration for the fair value
of services performed in South Africa in connection with such
transshipment and exportation. This section shall not apply to the
''bantustans'' or ''homelands'' to which South Africa blacks are
assigned on the basis of ethnic origin, including the Transkei,
Bophuthatswana, Ciskei, and Venda, which, pursuant to 545.312, are
deemed part of South Africa.
(51 FR 41909, Nov. 19, 1986)
31 CFR 545.412 Release from bonded warehouse or foreign trade zone.
Goods subject to import restrictions pursuant to subpart B of this
part may be released from a bonded warehouse or a foreign trade zone if
such goods were imported into the bonded warehouse or foreign trade zone
prior to the effective date.
(51 FR 41909, Nov. 19, 1986)
31 CFR 545.413 Import prohibitions applied cumulatively.
An import transaction prohibited by any section of subpart B of this
part is prohibited, notwithstanding the applicability to the same
transaction of any other, less restrictive section of that subpart.
(a) The importation under a pre-August 15, 1986, contract of steel
marketed by a parastatal organization is prohibited after December 31,
1986, pursuant to the iron and steel ban in 545.206. The longer
parastatal importation period in 545.208(a)(2) is not available to
permit importations after December 31, 1986.
(b) Similarly, the ban in 545.205 on agricultural imports is
applicable to, and prohibits, all agricultural import transactions after
October 2, 1986, regardless of the involvement of a parastatal
organization.
(51 FR 41909, Nov. 19, 1986)
31 CFR 545.414 U.S. Customs Service rules of origin.
Determinations of country of origin for purposes of this part will be
made in accordance with normal Customs rules of origin.
(51 FR 41909, Nov. 19, 1986)
31 CFR 545.415 Trading in South African securities; American
Depositary Receipts; recapitalizations.
(a) For purposes of the prohibition on new investment in 545.210,
the ownership, control, transfer or acquisition of (1) a debt or equity
security issued by the Government of South Africa or a South African
entity, or (2) an American Depositary Receipt (ADR) evidencing an
interest in such a security, is authorized provided that no interest
represented by the security or ADR was issued on or after October 2,
1986.
(b) Shares issued by a South African entity on or after October 2,
1986 in a stock split or similar recapitalization transaction, in a
merger or other reorganization, or as a stock dividend, with respect to
its shares issued on or prior to that date, will be deemed issued on the
date of issuance of the underlying shares for the purposes of 545.210,
provided that, except as permitted in 545.319(c)(1), such split,
recapitalization, reorganization, or dividend does not result in a
payment, contribution of funds or assets, or credit to, or for the
benefit of, the South African issuer from, or on behalf of, the security
holder. This treatment is not available for shares acquired on or after
October 2, 1986 through the exercise of warrants or preemptive rights.
Rights or warrants received on or after October 2, 1986 with respect to
shares issued prior to that date may, however, be sold by the security
holder, or on an ADR holder's behalf by the depositary.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.416 Trading in commodities.
Trading in commodities futures or options thereon with respect to
South African commodities will be treated as the purchase or sale of the
underlying goods. However, no such commodities subject to import
prohibitions may be imported into the United States on or after the
effective date of a relevant import prohibition.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.417 Expenses to comply with Code of Conduct.
Expenses incurred by U.S. nationals to comply with the Code of
Conduct will not be treated as prohibited new investment in South
Africa.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.418 Sales of goods, services, and technology.
Purchases and sales of goods, services, and technology in arms'
length transactions on normal commercial terms will generally not be
treated as new investment in South Africa for purposes of the
prohibition in 545.210.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.419 Real estate acquisition.
The purchase of real estate in South Africa for use as a residence by
the purchasing individual U.S. national will not be treated as new
investment in South Africa for purposes of 545.210, provided that no
commercial or rental use is made of such real estate.
(51 FR 46855, Dec. 29, 1986)
31 CFR 545.420 Bank accounts in South Africa.
(a) The opening and holding of personal bank accounts in South Africa
by an individual resident in South Africa, or of corporate or similar
accounts by an entity that is a U.S. national doing business through a
permanent establishment in South Africa, will not be treated as a
''loan'' or ''new investment'' for purposes of 545.202 or 545.210.
(b) The opening and holding of non-interest-bearing demand deposit or
call accounts in South Africa by a U.S. national located outside South
Africa will not be treated as a ''loan'' or ''new investment'' for
purposes of 545.202 or 545.210, where such accounts are used
exclusively to pay for and clear transactions with South African
entities.
(51 FR 46856, Dec. 29, 1986)
31 CFR 545.421 Charitable contributions.
Contributions to charitable organizations engaged in social welfare,
public health, religious, educational, and emergency relief activities
in South Africa will not be treated as ''new investments'' for purposes
of 545.210.
(51 FR 46856, Dec. 29, 1986)
31 CFR 545.422 Foreign exchange transactions.
A foreign exchange transaction executed at current market prices, for
immediate or future delivery but without an extension of credit, will
not be deemed a ''loan'' as defined in 545.304.
(51 FR 46856, Dec. 29, 1986)
31 CFR 545.423 Confirmation of short-term trade credits.
The confirmation of short-term trade financing instruments, such as
commercial letters of credit, is authorized, provided that the
instrument being confirmed is not within the definition of ''loan'' in
545.304.
(51 FR 46856, Dec. 29, 1986)
31 CFR 545.424 Firm owned by black South Africans.
For purposes of 545.210, the term ''firm owned by black South
Africans'' means an entity owned by South African victims of apartheid.
(51 FR 46856, Dec. 29, 1986)
31 CFR 545.425 Substantial transformation of uranium ore and oxide.
Articles such as uranium hexafluoride, which are produced from
uranium ore or uranium oxide and which the U.S. Customs Service
determines to have been substantially transformed outside the United
States, are not subject to the import prohibition of 545.211.
(52 FR 7274, Mar. 10, 1987)
31 CFR 545.426 Repair of U.S.-origin goods exported by South African
parastatals.
The temporary return from South Africa to the United States of
U.S.-origin goods for repair or servicing and re-export is not
considered an exportation by a parastatal organization of South Africa
pursuant to 545.208 of this part.
(52 FR 7274, Mar. 10, 1987)
31 CFR 545.426 Subpart E -- Licenses, Authorizations and Statements of Licensing Policy
31 CFR 545.501 Effect of subsequent license or authorization.
No license or other authorization contained in this chapter or
otherwise issued by or under the authority of the Secretary of the
Treasury shall be deemed to authorize or validate any transaction
effected prior to the issuance thereof, unless such license or other
authorization specifically so provides.
(51 FR 41909, Nov. 19, 1986)
31 CFR 545.502 Exclusion from licenses and authorizations.
The Secretary of the Treasury reserves the right to exclude any
person or property from the operation of any license or to restrict the
applicability thereof to any person or property. Such action shall be
binding upon all persons receiving actual or constructive notice
thereof.
31 CFR 545.503 Loans to benefit persons disadvantaged by the apartheid
system.
(a) Specific licenses may be issued to financial institutions in the
United States that are not nationals of the United States authorizing
them to make loans to prohibited borrowers where it is determined that
the loans will improve the welfare or expand the economic opportunities
of persons in South Africa disadvantaged by the apartheid system,
provided that no such loan will be authorized to any apartheid enforcing
entity.
(b) Specific licenses may be issued to nationals of the United States
or financial institutions in the United States where it is determined
that the loans will finance any education, housing, or humanitarian
benefit which (1) is available to all persons on a nondiscriminatory
basis, or (2) is available in a geographic area accessible to all
population groups without any legal or administrative restriction.
(51 FR 41909, Nov. 19, 1986)
31 CFR 545.599 Lifting of sanctions.
(a) The prohibitions contained in 545.201 through 545.211 of this
part do not apply to any transaction occurring after 12:01 p.m. e.d.t.,
July 10, 1991.
(b) Nothing in this section affects any action taken or proceeding
pending and not finally concluded or determined on, or any action or
proceeding based on any act committed prior to, or any rights or duties
that matured or penalties that were incurred prior to 12:01 p.m. e.d.t.,
July 10, 1991.
(56 FR 32056, July 12, 1991)
31 CFR 545.599 Subpart F -- Reports
31 CFR 545.601 Required records.
Every person engaging in any act or transaction subject to this part
shall keep a full, complete, and accurate record relative to any such
act or transaction either before, during, or after the completion
thereof, including any transaction effected pursuant to license or
otherwise, and such records shall be available for examination for two
years after the date of such transaction.
(51 FR 41910, Nov. 19, 1986)
31 CFR 545.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, at any time as may be required, complete
information relative to any act or transaction subject to this part,
regardless of whether such transaction is effected pursuant to license
or otherwise. Such reports may be required to include the production of
any books of account, contracts, letters, and other papers connected
with any transaction in the custody or control of the persons required
to make such reports. Reports with respect to transactions may be
required before, during, or after such transactions are completed. The
Secretary of the Treasury may, through any person or agency, conduct
investigations, hold hearings, administer oaths, examine witnesses,
receive evidence, take depositions, and require by subpoena the
attendance and testimony of witnesses and the production of all books,
papers, and documents relating to any matter under investigation.
(51 FR 41910, Nov. 19, 1986)
31 CFR 545.603 Registration of new investment in firms owned by black
South Africans.
Every person making a new investment in a firm owned by black South
Africans pursuant to the exception to the prohibition on new investment
in 545.210(b) shall, prior to making such new investment, file with the
Office of Foreign Assets Control a report with respect to such
investment, including:
(a) The name and address of the U.S. national making the investment;
(b) The name of the black-owned firms,
(c) Full information on the black-owned firm's ownership, sufficient
to demonstrate its eligibility under 545.210(b); and
(d) The amount and nature of the U.S. national's new investment.
(51 FR 46856, Dec. 29, 1986)
31 CFR 545.604 Registration of contributions necessary to enable a
controlled South African entity to operate in an economically sound
manner.
Every person making a contribution necessary to enable a controlled
South African entity to operate in an economically sound manner,
pursuant to the exception to the prohibition on new investment in
545.317(c)(2), shall, prior to making such contribution, file with the
Office of Foreign Assets Control a report with respect to such
contribution, including:
(a) The name and address of the U.S. national making the
contribution;
(b) The name and address of the controlled South African entity;
(c) Full information on the circumstances requiring the contribution,
sufficient to demonstrate its eligibility under 545.319(c)(2); and
(d) The amount and nature of the U.S. national's contribution.
(51 FR 46856, Dec. 29, 1986)
31 CFR 545.604 Subpart G -- Penalties
31 CFR 545.701 Penalties.
(a) Any person that violates any regulation, license, or order issued
under this part shall be subject to a civil penalty of $50,000.
(b) Any person, other than an individual, that willfully violates any
regulation, license, or order issued under this part shall be fined not
more than $1,000,000.
(c) Any individual who willfully violates any regulation, license, or
order issued under this part shall be fined not more than $50,000, or
imprisoned not more than ten years, or both; and
(d) Whenever a person commits a violation as to which a penalty under
paragraph (a), (b) or (c) of this section applies, the following shall
also apply: (1) Any officer, director, or employee of such person, or
any natural person in control of such person, who knowingly and
willfully ordered, authorized, acquiesced in, or carried out the act or
practice constituting the violation; and (2) any agent of such person
who knowingly and willfully carried out such act or practice, shall be
fined not more than $10,000, or imprisoned not more than five years, or
both. However, this paragraph (d) shall not apply in the case of a
violation by an individual of section 301(a) of the Act, 545.201 of
this part, or of any other regulation issued to carry out section 301(a)
of the Act.
(e) A fine imposed under paragraph (b) of this section on an
individual for an act or practice constituting a violation may not be
paid, directly or indirectly, by the person committing the violation
itself.
(f) Any individual who violates 545.201 of this part relating to the
prohibition on the importation of Krugerrands or other South African
gold coins shall, instead of the penalties set forth in paragraph (b) of
this section, be fined not more than five times the value of the
Krugerrands or gold coins involved.
(The Act, 603 (b) and (c).)
(g) Whoever, in any matter within the jurisdiction of any department
or agency of the United States knowingly and willfully falsifies,
conceals or covers up by any trick, scheme, or device a material fact,
or makes any false, fictitious or fraudulent statements or
representations, or makes or uses any false writing or document knowing
the same to contain any false, fictitious or fraudulent statement or
entry, shall be fined not more than $10,000, or such greater amount as
set forth in 18 U.S.C. 3623, or imprisoned not more than five years, or
both.
(18 U.S.C. 1001, 3623.)
(h) Violations of this part may also be subject to relevant
provisions of the Customs laws and other applicable laws.
(51 FR 41910, Nov. 19, 1986)
31 CFR 545.702 Prepenalty notice.
(a) When required. If the Director of the Office of Foreign Assets
Control (hereinafter ''Director'') has reasonable cause to believe that
there has occurred a violation of any provision of this part or a
violation of the provisions of any license, ruling, regulation, order,
direction or instruction issued by or pursuant to the direction or
authorization of the Secretary of the Treasury pursuant to this part or
otherwise under the Comprehensive Anti-Apartheid Act of l986, and the
Director determines that further proceedings are warranted, he shall
issue to the person concerned a notice of his intent to impose a
monetary penalty. The prepenalty notice shall be issued whether or not
another agency has taken any action with respect to this matter.
(b) Contents -- (1) Facts of violation.
The prepenalty notice shall: (i) Describe the violation.
(ii) Specify the laws and regulations allegedly violated.
(iii) State the amount of the proposed monetary penalty.
(2) Right to make presentations. The prepenalty notice also shall
inform the person of his right to make a written presentation within
thirty (30) days of mailing of the notice as to why a monetary penalty
should not be imposed, or, if imposed, why it should be in a lesser
amount than proposed.
(53 FR 7357, Mar. 8, 1988)
31 CFR 545.703 Presentation responding to prepenalty notice.
(a) Time within which to respond. The named person shall have 30
days from the date of mailing of the prepenalty notice to make a written
presentation to the Director.
(b) Form and contents of written presentation. The written
presentation need not be in any particular form, but shall contain
information sufficient to indicate that it is in response to the
prepenalty notice. It should contain responses to the allegations in
the prepenalty notice and set forth the reasons why the person believes
the penalty should not be imposed or, if imposed, why it should be in a
lesser amount than proposed.
(53 FR 7357, Mar. 8, 1988)
31 CFR 545.704 Penalty notice.
(a) No violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was no violation by the person named in the prepenalty notice, he
promptly shall notify the person in writing of that determination and
that no monetary penalty will be imposed.
(b) Violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was a violation by the person named in the prepenalty notice, he
promptly shall issue a written notice of the imposition of the monetary
penalty to that person.
(53 FR 7357, Mar. 8, 1988)
31 CFR 545.705 Referral to United States Department of Justice.
In the event that the person named does not pay the penalty imposed
pursuant to this subpart or make payment arrangements acceptable to the
Director within thirty days of the mailing of the written notice of the
imposition of the penalty, the matter shall be referred to the United
States Department of Justice for appropriate action to recover the
penalty in a civil suit in a Federal district court.
(53 FR 7357, Mar. 8, 1988)
31 CFR 545.705 Subpart H -- Procedures
31 CFR 545.801 Licensing.
(a) General licenses. General licenses may be issued authorizing
under appropriate terms and conditions certain types of transactions
which are subject to the prohibitions contained in subpart B of this
part. Any and all such licenses will be set forth in subpart E of this
part. It is the policy of the Office of Foreign Assets Control not to
grant applications for specific licenses authorizing transactions to
which the provisions of an outstanding general license are applicable.
Persons availing themselves of certain general licenses may be required
to file reports and statements in accordance with the instructions
specified in those licenses.
(b) Specific licenses. Transactions prohibited under subpart B may
be effected only under specific license.
(1) The specific licensing activities of the Office of Foreign Assets
Control are performed by its Washington Office and by the Foreign Assets
Control Division of the Federal Reserve Bank of New York.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transaction prohibited under this part are to
be filed in duplicate with the Federal Reserve Bank of New York, Foreign
Assets Control Division, 33 Liberty Street, New York, NY 10045. Any
person having an interest in a transaction or proposed transaction may
file an application for a license authorizing such transaction, and
there is no requirement that any other person having an interest in such
transaction shall or should join in making or filing such application.
(3) Information to be supplied. The applicant must supply all
information specified by the respective forms and instructions. Such
documents as may be relevant shall be attached to each application
except that documents previously filed with the Office of Foreign Assets
Control may, where appropriate, be incorporated by reference.
Applicants may be required to furnish such further information as is
deemed necessary to a proper determination by the Office of Foreign
Assets Control. Failure to furnish necessary information will not be
excused because of any provision of South African law. If an applicant
or other party in interest desires to present additional information or
discuss or argue the application, he may do so at any time before or
after decision. Arrangements for oral presentation should be made with
the Office of Foreign Assets Control.
(4) Effect of denial. The denial of a license does not preclude the
reopening of an application or the filing of a further application. The
applicant or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition of the issuance
of any license, the licensee may be required to file reports with
respect to the transaction covered by the license, in such form and at
such times and places as may be prescribed in the license or otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the Treasury
or by the Federal Reserve Bank of New York, acting in accordance with
such regulations, rulings, and instructions as the Secretary of the
Treasury or the Office of Foreign Assets Control may from time to time
prescribe, or licenses may be issued by the Secretary of the Treasury
acting directly or through a designated person, agency, or
instrumentality.
(50 FR 41682, Oct. 15, 1985, as amended at 51 FR 41910, Nov. 19,
1986)
31 CFR 545.802 Decisions.
The Office of Foreign Assets Control or the Federal Reserve Bank of
New York will advise each applicant of the decision respecting filed
applications. The decision of the Office of Foreign Assets Control with
respect to an application shall constitute a final agency action.
31 CFR 545.803 Amendment, modification, or revocation.
The provisions of this part and any rulings, licenses,
authorizations, instructions, orders or forms issued hereunder may be
amended, modified, or revoked at any time.
31 CFR 545.804 Rulemaking.
(a) All rules and other public documents are issued by the Secretary
of the Treasury upon recommendation of the Director of the Office of
Foreign Assets Control. Except to the extent that there is involved any
military, naval, or foreign affairs function of the United States or any
matter relating to the agency management or personnel or to public
property, loans, grants, benefits, or contracts, and except when
interpretive rules, general statements of policy, or rules of agency
organization, practice, or procedure are involved, or when notice and
public procedure are impracticable, unnecessary, or contrary to the
public interest, interested persons will be afforded an opportunity to
participate in rulemaking through the submission of written data, views,
or arguments, with oral presentation in the discretion of the Director.
In general, rulemaking by the Office of Foreign Assets Control involves
foreign affairs functions of the United States. Wherever possible,
however, it is the practice to hold informal consultations with
interested groups or persons before the issuance of any rule or other
public document.
(b) Any interested person may petition the Director of the Office of
Foreign Assets Control in writing for the issuance, amendment or
revocation of any rule.
31 CFR 545.805 Delegation by the Secretary of the Treasury.
Any action that the Secretary of the Treasury is authorized to take
with respect to the subject matter of this part may be taken by the
Director of the Office of Foreign Assets Control, or by any other person
to whom the Secretary of the Treasury delegated authority so to act.
(51 FR 41910, Nov. 19, 1986)
31 CFR 545.806 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control which are
required by 5 U.S.C. 552 to be made available to the public shall be
made available in accordance with the definitions, procedures, payment
of fees, and other provisions of the regulations on the disclosure of
records of the Office of the Secretary and of other bureaus and offices
of the Department issued under 5 U.S.C. 552 and published as part 1 of
this title 31 of the Code of Federal Regulations.
(b) Any form issued for use in connection with this part may be
obtained in person from or by writing to the Office of Foreign Assets
Control, Treasury Department, Washington, DC 20220, or the Foreign
Assets Control Division, Federal Reserve Bank of New York, 33 Liberty
Street, New York, NY 10045.
31 CFR 545.807 Certification concerning parastatal organizations.
(a) If the importer asserts that the imported articles were not
grown, produced, manufactured, marketed, or otherwise exported by a
parastatal organization, he shall file the following declaration with
the U.S. Customs Service upon making an entry of goods from South
Africa:
These goods were obtained from ------ , which is not a parastatal
entity of South Africa, and these goods were not grown, produced,
manufactured, marketed, or otherwise exported by a parastatal
organization.
(b) If parastatal status is declared upon making an entry of goods
from South Africa, or from a third country in the case of goods marketed
or otherwise exported by a parastatal organization, the following
declaration shall be filed:
These goods were grown, produced, manufactured, marketed or otherwise
exported by ------ , which is a parastatal organization of South Africa.
When entering parastatal goods as described above, a copy of the
import contract or other evidence of the date of the import contract
pertaining to the goods must be submitted evidencing that the contract
was entered into prior to August 15, 1986. Importation shall be
permitted only for parastatal goods not otherwise prohibited pursuant to
subpart B of this part, and only if the goods are imported prior to
April 2, 1987.
(51 FR 41910, Nov. 19, 1986)
31 CFR 545.808 Certification concerning hides, skins, leather, and
furskins of animals from the wild.
If the importer asserts that the imported articles are hides, skins,
leather, or furskins, classifiable under Schedule 1, part 5, ''Hide,
Skins, and Leather; Furskins'' (including TSUS numbers 120.11 through
120.50, 121.10 through 121.65, 123.00 through 123.50, and 124.10 through
124.80), of animals that are taken from the wild in South Africa, and
that are not cultivated, ranched, or otherwise the product of animal
husbandry, the following signed certificate shall be filed with the U.S.
Customs Service upon making an entry of such goods from South Africa:
These XXXX (hides, skins, leather, or furskins), classifiable under
TSUS number(s) XXXX (from Schedule 1, Part 5, ''Hide, Skins, and
Leather; Furskins'' (including TSUS numbers 120.11 through 120.50,
121.10 through 121.65, 123.00 through 123.50, and 124.10 through
124.80)), are from XXXX (type of animal) that were taken from the wild
in South Africa, and that were not cultivated, ranched, or otherwise the
product of animal husbandry. The requirements of Title 50 of the Code
of Federal Regulations (Wildlife and Fisheries), including those
relating to endangered species, have been fully complied with in
removing these articles from South Africa, and all applicable import
certificates required pursuant to title 50 are presented with this
entry.
(52 FR 7855, Mar. 13, 1987)
31 CFR 545.808 Subpart I -- Miscellaneous
31 CFR 545.901 Paperwork Reduction Act notice.
The information collection requirements in 545.503, 545.504,
545.601, and 545.602 have been approved by the Office of Management and
Budget (OMB) and have been assigned control number 1505-0091. The
information collection requirements of 545.807 have been approved by
OMB and assigned control number 1505-0097. The information collection
requirements of 545.603 and 545.604 have been approved by OMB and
assigned control number 1505-0098.
(52 FR 7274, Mar. 10, 1987)
31 CFR 545.901 PART 550 -- LIBYAN SANCTIONS REGULATIONS
31 CFR 545.901 Pt. 550
31 CFR 545.901 Subpart A -- Relation of this Part to Other Laws and
Regulations
Sec.
550.101 Relation of this part to other laws and regulations.
31 CFR 545.901 Subpart B -- Prohibitions
550.201 Prohibited imports of goods or services from Libya.
550.202 Prohibited exports of goods, technology or services to Libya.
550.203 Prohibited transportation-related transactions.
550.204 Prohibited purchases of goods from Libya.
550.205 Prohibited engagement in contracts.
550.206 Prohibited grants or extensions of credits or loans.
550.207 Prohibited transactions relating to travel to Libya or to
activities within Libya.
550.208 Evasions.
550.209 Prohibited transactions involving property in which the
Government of Libya has an interest; transactions with respect to
securities.
550.210 Effect of transfers violating the provisions of this part.
31 CFR 545.901 Subpart C -- Definitions
550.301 Effective date.
550.302 Libya; Libyan.
550.303 Libyan origin.
550.304 Government of Libya.
550.305 Libyan person.
550.306 Person.
550.307 United States.
550.308 United States person.
550.309 License.
550.310 General license.
550.311 Specific license.
550.312 Credits or loans.
550.313 Transfer.
550.314 Property; property interests.
550.315 Interest.
550.316 Blocked account; blocked property.
550.317 Domestic bank.
550.318 Entity.
550.319 Entity of the Government of Libya; Libyan entity.
550.320 Banking institution.
31 CFR 545.901 Subpart D -- Interpretations
550.401 Reference to amended sections.
550.402 Effect of amendment of sections of this part or of other
orders, etc.
550.403 Extensions of credits or loans to Libya.
550.404 Import and export of goods in transit before the effective
date.
550.405 Payments in connection with certain authorized transactions.
550.406 Offshore transactions.
550.407 Transshipment through the United States prohibited.
550.408 Imports from third countries; transshipments.
550.409 Exports to third countries; transshipment.
550.410 Release from bonded warehouse or foreign trade zone.
550.411 Publications.
550.412 Termination and acquisition of an interest of the Government
of Libya.
550.413 Payments to Libya prohibited.
550.414 Exports of Libyan-titled goods.
550.415 Advance payments.
550.416 Imports of Libyan goods and purchases of goods from Libya.
550.417 Letters of credit.
550.418 Payments from blocked accounts for U.S. exporters and other
obligations prohibited.
550.419 Acquisition of instruments, including bankers' acceptances.
550.420 Indirect payments to the Government of Libya.
550.421 Setoffs prohibited.
31 CFR 545.901 Subpart E -- Licenses, Authorizations, and Statements of
Licensing Policy
550.501 Effect of license or authorization.
550.502 Exclusion from licenses and authorizations.
550.503 Imports pursuant to Executive Order 12538.
550.504 Certain exports authorized.
550.505 Certain imports for diplomatic or official personnel
authorized.
550.506 Certain services relating to participation in various events
authorized.
550.507 Import of publications authorized.
550.508 Import of certain gifts authorized.
550.509 Import of accompanied baggage authorized.
550.510 Telecommunications and mail transactions authorized.
550.511 Payments to blocked accounts in domestic banks.
550.512 Payment of certain checks and drafts and documentary letters
of credit.
550.513 Completion of certain securities transactions.
550.515 Payment by the Government of Libya of obligations to persons
within the United States.
550.516 Unblocking of foreign currency deposits held by U.S. persons
overseas.
550.560 Transactions related to travel to, and residence within,
Libya by immediate family members of Libyan nationals.
550.568 Certain standby letters of credit and performance bonds.
31 CFR 545.901 Subpart F -- Reports
550.601 Required records.
550.602 Reports to be furnished on demand.
550.605 Reports of U.S. persons with foreign affiliates that engage
in Libyan transactions.
550.630 Reports on Form TFR-630 (TDF 90-22.32).
550.635 Reports on Form TFR-635 (TDF 90-22.33).
31 CFR 545.901 Subpart G -- Penalties
550.701 Penalties.
550.702 Detention of shipments.
550.703 Prepenalty notice.
550.704 Presentation responding to prepenalty notice.
550.705 Penalty notice.
550.706 Referral to United States Department of Justice.
31 CFR 545.901 Subpart H -- Procedures
550.801 Licensing.
550.802 Decisions.
550.803 Amendment, modification, or revocation.
550.804 Rulemaking.
550.805 Delegation by the Secretary of the Treasury.
550.806 Rules governing availability of information.
550.807 Customs procedures: Merchandise specified in 550.201.
31 CFR 545.901 Subpart I -- Miscellaneous
550.901 Paperwork Reduction Act notice.
Appendix A to Part 550 -- Organizations Determined to be Within the
Term ''Government of Libya'' (Specially Designated Nationals of Libya)
Authority: 50 U.S.C. 1701 et seq. ; 22 U.S.C. 2349aa-8 & -9; 49
U.S.C. 1514; E.O. 12543, 51 FR 875 (Jan. 9, 1986); E.O. 12544, 51 FR
1235 (Jan. 10, 1986).
Source: 51 FR 1354, Jan. 10, 1986, unless otherwise noted.
31 CFR 545.901 Subpart A -- Relation of this Part to Other Laws and Regulations
31 CFR 550.101 Relation of this part to other laws and regulations.
(a) This part is independent of parts 500, 505, 515, 520, 535, 540,
and 545 of this chapter. Those parts do not relate to Libya. No
license or authorization contained in or issued pursuant to those other
parts authorizes any transaction prohibited by this part. In addition,
licenses or authorizations contained in or issued pursuant to any other
provision of law or regulations do not authorize any transaction
prohibited by this part.
(b) No license or authorization contained in or issued pursuant to
this part relieves the involved parties from complying with any other
applicable laws or regulations. In particular, no license or
authorization contained in or issued pursuant to this part authorizes
the importation of petroleum products which would be banned by
Presidential Proclamation 5141 of December 22, 1983 or Executive Order
12538 of November 15, 1985.
31 CFR 550.101 Subpart B -- Prohibitions
31 CFR 550.201 Prohibited imports of goods or services from Libya.
Except as authorized, no goods or services of Libyan origin, other
than publications and materials imported for news publication or news
broadcast dissemination, may be imported into the United States.
31 CFR 550.202 Prohibited exports of goods, technology or services to
Libya.
Except as authorized, no goods, technology (including technical data
or other information) or services may be exported to Libya from the
United States, except publications and donated articles intended to
relieve human suffering, such as food, clothing, medicine and medical
supplies intended strictly for medical purposes.
31 CFR 550.203 Prohibited transportation-related transactions.
Except as authorized, the following are prohibited:
(a) Any transaction by a United States person relating to
transportation to or from Libya;
(b) The provision of transportation to or from the United States by
any Libyan person or any vessel or aircraft of Libyan registration; or
(c) The sale in the United States by any person holding authority
under the Federal Aviation Act of any transportation by air which
includes any stop in Libya.
31 CFR 550.204 Prohibited purchases of goods from Libya.
Except as authorized, no U.S. person may purchase goods for export
from Libya to any other country.
31 CFR 550.205 Prohibited engagement in contracts.
Except as authorized, no U.S. person may perform any contract in
support of an industrial or other commercial or governmental project in
Libya.
31 CFR 550.206 Prohibited grants or extensions of credits or loans.
Except as authorized, no U.S. person may grant or extend credits or
loans to the Government of Libya.
31 CFR 550.207 Prohibited transactions relating to travel to Libya or
to activities within Libya.
Except as authorized, no U.S. person may engage in any transaction
relating to travel by any U.S. citizen or permanent resident alien to
Libya, or to activities by any U.S. citizen or permanent resident alien
within Libya, after the effective date, other than transactions:
(a) Necessary to effect the departure of a U.S. citizen or permanent
resident alien from Libya;
(b) Relating to travel to, from, or within Libya prior to February 1,
1986 to perform acts prohibited by 550.201, 550.202, 550.203, 550.204,
or 550.205 after that date; or
(c) Relating to journalistic activity by persons regularly employed
in such capacity by a newsgathering organization.
This section prohibits the unauthorized payment by a U.S. person of
his own travel or living expenses to or within Libya.
31 CFR 550.208 Evasions.
Any transaction for the purpose of, or which has the effect of,
evading or avoiding any of the prohibitions set forth in this subpart is
hereby prohibited.
31 CFR 550.209 Prohibited transactions involving property in which the
Government of Libya has an interest; transactions with respect to
securities.
(a) Except as authorized by regulations, rulings, instructions,
licenses, or otherwise, no property or interests in property of the
Government of Libya that are in the United States that hereafter come
within the United States or that are or hearafter come within the
possession or control of U.S. persons, including their overseas
branches, may be transferred, paid, exported, withdrawn or otherwise
dealt in.
(b) Unless authorized by a license expressly referring to this
section, the acquisition, transfer (including the transfer on the books
of any issuer or agent thereof), disposition, transportation,
importation, exportation, or withdrawal of, or the endorsement or
guaranty of signatures on or otherwise dealing in any security (or
evidence thereof) registered or inscribed in the name of the Government
of Libya is prohibited irrespective of the fact that at any time (either
prior to, on, or subsequent to 4:10 p.m. e.s.t., January 8, 1986) the
registered or inscribed owner thereof may have, or appears to have,
assigned, transferred or otherwise disposed of any such security.
(51 FR 2462, Jan. 16, 1986)
31 CFR 550.210 Effect of transfers violating the provisions of this
part.
(a) Any transfer after 4:10 p.m. e.s.t., January 8, 1986, which is in
violation of any provision of this part or of any regulation, ruling,
instruction, license, or other direction or authorization thereunder and
involves any property in which the Government of Libya has or has had an
interest since such date is null and void and shall not be the basis for
the assertion or recognition of any interest in or right, remedy, power
or privilege with respect to such property.
(b) No transfer before 4:10 p.m. e.s.t., January 8, 1986, shall be
the basis for the assertion or recognition of any right, remedy, power,
or privilege with respect to, or interest in, any property in which the
Government of Libya has or has had an interest since such date, unless
the person with whom such property is held or maintained had written
notice of the transfer or by any written evidence had recognized such
transfer prior to such date.
(c) Unless otherwise provided, an appropriate license or other
authorization issued by or pursuant to the direction or authorization of
the Secretary of the Treasury before, during or after a transfer shall
validate such transfer or render it enforceable to the same extent as it
would be valid or enforceable but for the provisions of the
International Emergency Economic Powers Act and this part and any
ruling, order, regulation, direction or instruction issued hereunder.
(d) Transfers of property which otherwise would be null and void or
unenforceable, by virtue of the provisions of this section, shall not be
deemed to be null and void or unenforceable pursuant to such provisions,
as to any person with whom such property was held or maintained (and as
to such person only) in cases in which such person is able to establish
each of the following:
(1) Such transfer did not represent a willfull violation of the
provisions of this part by the person with whom such property was held
or maintained:
(2) The person with whom such property was held or maintained did not
have reasonable cause to know or suspect, in view of all the facts and
circumstances known or available to such person, that such transfer
required a license or authorization by or pursuant to this part and was
not so licensed or authorized, or if a license or authorization did
purport to cover the transfer, that such license or authorization had
been obtained by misrepresentation or the withholding of material facts
or was otherwise fraudulently obtained; and
(3) Promptly upon discovery that: (i) Such transfer was in violation
of the provisions of this part or any regulation, ruling, instruction,
license or other direction or authorization thereunder, or (ii) such
transfer was not licensed or authorized by the Secretary of the
Treasury, or (iii) if a license did purport to cover the transfer, such
license had been obtained by misrepresentation or the withholding of
material facts or was otherwise fraudulently obtained; the person with
whom such property was held or maintained filed with the Treasury
Department, Washington, DC, a report in triplicate setting forth in full
the circumstances relating to such transfer. The filing of a report in
accordance with the provisions of this paragraph shall not be deemed to
be compliance or evidence of compliance with paragraphs (d)(1) and (2)
of this section.
(e) Unless licensed or authorized pursuant to this part, any
attachment, judgment, decree, lien, execution, garnishment or other
judicial process is null and void with respect to any property in which
on or since 4:10 p.m. e.s.t., January 8, 1986, there existed an interest
of the Government of Libya.
(51 FR 2462, Jan. 16, 1986)
31 CFR 550.210 Subpart C -- Definitions
31 CFR 550.301 Effective date.
The effective date means:
(a) 12:01 a.m. Eastern Standard Time (e.s.t.), February 1, 1986, with
respect to the transactions prohibited by 550.201, 550.202, 550.203,
550.204, and 550.205;
(b) 8:06 p.m. Eastern Standard Time (e.s.t.), January 7, 1986, with
respect to transactions prohibited by 550.206 and 550.207; and
(c) 4:10 p.m. Eastern Standard Time (e.s.t.), January 8, 1986, with
respect to transactions prohibited by 550.209.
(51 FR 2463, Jan. 16, 1986)
31 CFR 550.302 Libya; Libyan.
The term Libya means the country of Libya and any Libyan territory,
dependency, colony, protectorate, mandate, dominion, possession, or
place subject to the jurisdiction thereof. The term Libyan means
pertaining to Libya as defined in this section.
31 CFR 550.303 Libyan origin.
The term goods or services of Libyan origin includes:
(a) Goods produced, manufactured, grown, or processed within Libya;
(b) Goods which have entered into Libyan commerce;
(c) Services performed in Libya or by a Libyan national who is acting
as an agent, employee, or contractor of the Government of Libya, or of a
business entity located in Libya. Services of Libyan origin are not
imported into the United States when such services are provided in the
United States by a Libyan national who, during indefinite residency in
the United States, works as, for example, a teacher, athlete, restaurant
or domestic worker, or a person employed in any other regular
occupation.
31 CFR 550.304 Government of Libya.
(a) The Government of Libya includes:
(1) The state and the Government of Libya, as well as any political
subdivision, agency, or instrumentality thereof, including the Central
Bank of Libya;
(2) Any partnership, association, corporation, or other organization
substantially owned or controlled by the foregoing;
(3) Any person to the extent that such person is, or has been, or to
the extent that there is reasonable cause to believe that such person
is, or has been, since the effective date, acting or purporting to act
directly or indirectly on behalf of any of the foregoing;
(4) Any other person or organization determined by the Secretary of
the Treasury to be included within paragraph (a) of this section.
(b) A person specified in paragraph (a)(2) of this section shall not
be deemed to fall within the definition of Government of Libya solely by
reason of being located in, organized under the laws of, or having its
principal place of business in, Libya.
(51 FR 2463, Jan. 16, 1986, as amended at 53 FR 5571, Feb. 25, 1988)
31 CFR 550.305 Libyan person.
The term Libyan person means any Libyan citizen, any juridical person
organized under the laws of Libya, or any juridical person owned or
controlled, directly or indirectly, by a Libyan citizen or the
Government of Libya.
31 CFR 550.306 Person.
The term person means an individual, partnership, association,
corporation, or other organization.
31 CFR 550.307 United States.
The term United States means the United States and all areas under
the jurisdiction or authority thereof.
31 CFR 550.308 United States person.
The term United States person or, as abbreviated, U.S. person, means
any United States citizen, permanent resident alien, juridical person
organized under the laws of the United States, or any person in the
United States.
31 CFR 550.309 License.
Except as otherwise specified, the term license shall mean any
license or authorization contained in or issued pursuant to this part.
31 CFR 550.310 General license.
A general license is any license or authorization the terms of which
are set forth in this part.
31 CFR 550.311 Specific license.
A specific license is any license or authorization issued purusant to
this part but not set forth in this part.
31 CFR 550.312 Credits or loans.
The term credits or loans means any transfer or extension of funds or
credit on the basis of an obligation to repay, or any assumption or
guarantee of the obligation of another to repay an extension of funds or
credit. The term credits or loans includes, but is not limited to:
overdrafts; currency swaps; purchases of debt securities issued by the
Government of Libya after January 7, 1986; purchases of a loan made by
another person; sales of financial assets subject to an agreement to
repurchase; renewals or refinancings whereby funds or credits are
transferred to or extended to the Government of Libya; and draw-downs
on existing lines of credit.
31 CFR 550.313 Transfer.
The term transfer shall mean any actual or purported act or
transaction, whether or not evidenced by writing, and whether or not
done or performed within the United States, the purpose, intent or
effect of which is to create, surrender, release, transfer, or alter,
directly or indirectly, any right, remedy, power, privilege, or interest
with respect to any property and, without limitation upon the foregoing,
shall include the making, execution, or delivery of any assignment,
power, conveyance, check, declaration, deed, deed of trust, power of
attorney, power of appointment, bill of sale, mortgage, receipt,
agreement, contract, certificate, gift, sale, affidavit, or statement;
the appointment of any agent, trustee, or fiduciary; the creation or
transfer of any lien; the issuance, docketing, filing, or the levy of
or under any judgment, decree, attachment, injunction, execution, or
other judicial or administrative process or order, or the service of any
garnishment; the acquisition of any interest of any nature whatsoever
by reason of a judgment or decree of any foreign country; the
fulfillment of any condition, or the exercise of any power of
appointment, power of attorney, or other power.
(51 FR 2463, Jan. 16, 1986)
31 CFR 550.314 Property; property interests.
The terms property and property interest or property interests shall
include, but not by way of limitation, money, checks, drafts, bullion,
bank deposits, savings accounts, debts, indebtedness, obligations,
notes, debentures, stocks, bonds, coupons, any other financial
securities, bankers' acceptances, mortgages, pledges, liens or other
rights in the nature of security, warehouse receipts, bills of lading,
trust receipts, bills of sale, any other evidences of title, ownership
or indebtedness, letters of credit and any documents relating to any
rights or obligations thereunder, powers of attorney, goods, wares,
merchandise, chattels, stocks on hand, ships, goods on ships, real
estate mortgages, deeds of trust, vendors' sales agreements, land
contracts, real estate and any interest therein, leaseholds, ground
rents, options, negotiable instruments, trade acceptances, royalties,
book accounts, accounts payable, judgments, patents, trademarks or
copyrights, insurance policies, safe deposit boxes and their contents,
annuities, pooling agreements, contracts of any nature whatsoever, and
any other property, real, personal, or mixed, tangible or intangible, or
interest or interests therein, present, future or contingent.
(51 FR 2463, Jan. 16, 1986)
31 CFR 550.315 Interest.
Except as otherwise provided in this part, the term interest when
used with respect to property shall mean an interest of any nature
whatsoever, direct or indirect.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.316 Blocked account; blocked property.
The terms blocked account and blocked property shall mean any account
or property in which the Government of Libya has an interest, with
respect to which payments, transfers or withdrawals or other dealings
may not be made or effected except pursuant to an authorization or
license authorizing such action.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.317 Domestic bank.
(a) The term domestic bank shall mean any branch or office within the
United States of any of the following which is not a Libyan entity: Any
bank or trust company incorporated under the banking laws of the United
States or of any state, territory, or district of the United States, or
any private bank or banker subject to supervision and examination under
the banking laws of the United States or of any state, territory or
district of the United States. The Secretary of the Treasury may also
authorize any other banking institution to be treated as a ''domestic
bank'' for the purpose of this definition or for the purpose of any or
all sections of this part.
(b) The term domestic bank includes any branch or office within the
United States of a foreign bank that is not a Libyan entity.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.318 Entity.
The term entity includes a corporation, partnership, association, or
other organization.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.319 Entity of the Government of Libya; Libyan entity.
The terms entity of the Government of Libya and Libyan entity
include:
(a) Any corporation, partnership, association, or other entity in
which the Government of Libya owns a majority or controlling interest,
any entity substantially managed or funded by that government, and any
entity which is otherwise controlled by that government;
(b) Any agency or instrumentality of the Government of Libya,
including the Central Bank of Libya.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.320 Banking institution.
The term banking institution shall include any person engaged
primarily or incidentally in the business of banking, of granting or
transferring credits, or of purchasing or selling foreign exchange or
procuring purchasers and sellers thereof, as principal or agent, or any
person holding credits for others as a direct or incidental part of its
business, or any broker; and each principal, agent, home office, branch
or correspondent of any person so engaged shall be regarded as a
separate ''banking institution.''
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.320 Subpart D -- Interpretations
31 CFR 550.401 Reference to amended sections.
Reference to any section of this part or to any regulation, ruling,
order, instruction, direction or license issued pursuant to this part
shall be deemed to refer to the same as currently amended unless
otherwise so specified.
31 CFR 550.402 Effect of amendment of sections of this part or of other
orders, etc.
Any amendment, modification, or revocation of any section of this
part or of any order, regulation, ruling, instruction, or license issued
by or under the direction of the Secretary of the Treasury pursuant to
section 203 of the International Emergency Economic Powers Act shall
not, unless otherwise specifically provided, be deemed to affect any act
done or omitted to be done, or any suit or proceeding had or commenced
in any civil or criminal case prior to such amendment, modification, or
revocation, and all penalties, forfeitures, and liabilities under any
such order, regulation, ruling, instruction or license shall continue
and may be enforced as if such amendment, modification, or revocation
had not been made.
31 CFR 550.403 Extensions of credits or loans to Libya.
(a) The prohibition in 550.205 applies to the unlicensed renewal of
credits or loans in existence on the effective date.
(b) The prohibition in 550.205 applies to credits or loans extended
in any currency.
31 CFR 550.404 Import and export of goods in transit before the
effective date.
(a) Section 550.201 does not apply to goods:
(1) If imported by vessel, where the vessel arrives within the limits
of a port in the United States prior to the effective date with the
intent to unlade such goods; or
(2) If imported other than by vessel, where the goods arrive within
the Customs territory of the United States before the effective date.
(b) Section 550.202 does not apply to goods:
(1) If exported by vessel or airline, where the goods are laden on
board before the effective date; or
(2) If exported other than by vessel or airplane, where the goods
have left the United States before the effective date.
(51 FR 1354, Jan. 10, 1986, as amended at 51 FR 2464, Jan. 16, 1986)
31 CFR 550.405 Payments in connection with certain authorized
transactions.
Payments are authorized in connection with transactions authorized
under subpart E.
31 CFR 550.406 Offshore transactions.
(a) The provisions contained in 550.209 and 550.210 apply to
transactions by U.S. persons in locations outside the United States with
respect to property in which the U.S. person knows, or has reason to
know, that the Government of Libya has or has had any interest since
4:10 p.m. EST, January 8, 1986, including:
(1) Importation into such locations of, or
(2) Dealings within such locations in, goods or services of Libyan
origin.
(b) Example. A U.S. person may not, within the United States or
abroad, purchase, sell, finance, insure, transport, act as a broker for
the sale or transport of, or otherwise deal in, Libyan crude oil or
petroleum products refined in Libya.
(c) Note. Exports or reexports of goods and technical data, or of
the direct products of technical data (regardless of U.S. content), not
prohibited by this part may require authorization from the U.S.
Department of Commerce pursuant to the Export Administration Act of
1979, as amended, 50 U.S.C. App. 2401 et seq., and the Export
Administration Regulations implementing that Act, 15 CFR parts 368-399.
(53 FR 5572, Feb. 25, 1988)
31 CFR 550.407 Transshipment through the United States prohibited.
(a) The prohibitions in 550.202 apply to the import into the United
States, for transshipment or transit, of goods which are intended or
destined for Libya.
(b) The prohibitions in 550.201 apply to the import into the United
States, for transshipment or transit, of goods of Libyan origin which
are intended or destined for third countries.
31 CFR 550.408 Imports from third countries; transshipments.
(a) Imports into the United States from third countries of goods
containing raw materials or components of Libyan origin are not
prohibited if those raw materials or components have been incorporated
into manufactured products or otherwise substantially transformed in a
third country.
(b) Imports into the United States of goods of Libyan origin which
have been transshipped through a third country without being
incorporated into manufactured products or otherwise substantially
transformed in a third country are prohibited.
31 CFR 550.409 Exports to third countries; transshipment.
(a) Exports of goods or technology (including technical data and
other information) from the United States to third countries are
prohibited if the exporter knows, or has reason to know, that:
(1) The goods or technology are intended for transshipment to Libya
(including passage through, or storage in, intermediate destinations)
without coming to rest in a third country and without being
substantially transformed or incorporated into manufactured products in
a third country, or
(2) The exported goods are intended specifically for substantial
transformation or incorporation in a third country into products to be
used in Libya in the petroleum or petrochemical industry, or
(3) The exported technology is intended specifically for use in a
third country in the manufacture of, or for incorporation into, products
to be used in Libya in the petroleum or petrochemical industry.
(b) For the purposes of paragraph (a) of this section:
(1) The scope of activities encompassed by the petroleum and
petrochemical industries shall include, but not be limited to, the
following activities: Oil, natural gas, natural gas liquids, or other
hydrocarbon exploration (including geophysical and geological assessment
activity), extraction, production, refining, distillation, cracking,
coking, blending, manufacturing, and transportation; petrochemical
production, processing, manufacturing, and transportation;
(2) Exports subject to the prohibition in paragraph (a) of this
section, include not only goods and technology for use in third-country
products uniquely suited for use in the petroleum or petrochemical
industry, such as oilfield services equipment, but also goods and
technology for use in products, such as computers, office equipment,
construction equipment, or building materials, which are suitable for
use in other industries, but which are intended specifically for use in
the petroleum or petrochemical industry; and
(3) Goods and technology are intended specifically for a
third-country product to be used in Libya if the particular product is
being specifically manufactured to fill a Libyan order or if the
manufacturer's sales of the particular product are predominantly to
Libya.
(c) Specific licenses may be issued to authorize exports to third
countries otherwise prohibited by paragraph (a)(2) of this section in
appropriate cases, such as those involving extreme hardship or where the
resulting third-country products will have insubstantial U.S. content.
(d) Exports of goods or technology from the United States to third
countries are not prohibited where the exporter has reasonable cause to
believe that:
(1) Except as otherwise provided in paragraph (a) of this section,
the goods will be substantially transformed or incorporated into
manufactured products before export to Libya, or
(2) The goods will come to rest in a third country for purposes other
than reexport to Libya, e.g., for purposes of restocking the inventory
of a distributor whose sales of the particular goods are not
predominantly to Libya, or
(3) The technology will come to rest in a third country for purposes
other than reexport to Libya.
(e) Note: Exports or reexports of goods and technical data, or of
the direct products of technical data (regardless of U.S. content), not
prohibited by this part may require authorization from the U.S.
Department of Commerce pursuant to the Export Administration Act of
1979, as amended, 50 U.S.C. App. 2401 et seq. , and the Export
Administration Regulations Implementing that Act, 15 CFR parts 368
through 399.
(51 FR 22803, June 23, 1986; 51 FR 25635, July 15, 1986)
31 CFR 550.410 Release from bonded warehouse or foreign trade zone.
Section 550.201 does not prohibit the release from a bonded warehouse
or a foreign trade zone of goods of Libyan origin imported into a bonded
warehouse or a foreign trade zone prior to the effective date.
31 CFR 550.411 Publications.
For purposes of this part, publications include books, newspapers,
magazines, films, phonograph records, tape recordings, photographs,
microfilm, microfiche, and posters, including items described in the
following:
(a) 15 CFR 399.1, Control List, Group 5, CL No. 7599I: microfilm
that reproduces the content of certain publications, and similar
materials.
(b) 15 CFR 399.1, Control List, Group 9, CL No. 7999I: certain
publications and related materials.
31 CFR 550.412 Termination and acquisition of an interest of the
Government of Libya.
(a) Whenever a transaction licensed or authorized by or pursuant to
this part results in the transfer of property (including any property
interest) away from the Government of Libya, such property shall no
longer be deemed to be property in which the Government of Libya has or
has had an interest unless there exists in the property another such
interest the transfer of which has not been effected pursuant to license
or other authorization.
(b) Unless otherwise specifically provided in a license or
authorization issued pursuant to this part, if property (including any
property interest) is transferred to the Government of Libya, such
property shall be deemed to be property in which there exists an
interest of the Government of Libya.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.413 Payments to Libya prohibited.
The prohibition of transfers of property or interests in property to
the Government of Libya in 550.209 applies to payments and transfers of
any kind whatsoever, including payment of debt obligations, fees, taxes,
and royalties owed to the Government of Libya, and also including
payment or transfer of dividend checks, interest payments, and other
periodic payments. Such payments may be made into blocked accounts as
provided in 550.511.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.414 Exports of Libyan-titled goods.
(a) The prohibitions contained in 550.209 shall apply to any goods
in the possession or control of a U.S. person if the Government of Libya
had title to such property as of 4:10 p.m. e.s.t., on January 8, 1986,
or acquired title after such time.
(b) Section 550.209 does not prohibit the export to Libya of the
goods described in paragraph (a) of this section if such export is
either not prohibited by 550.202 or permitted by an authorization or
license issued pursuant to this part.
(c) If the goods described in paragraph (a) of this section are not
exported as described in paragraph (b) of this section, the property
shall remain blocked and no change in title or other transaction
regarding such property is permitted, except pursuant to an
authorization or license issued pursuant to this part.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.415 Advance payments.
The prohibitions contained in 550.209 do not apply to goods
manufactured, consigned, or destined for export to Libya, if the
Government of Libya did not have title to such goods on or at any time
after 4:10 p.m. e.s.t., January 8, 1986. However, if such goods are not
exported to Libya prior to 12:01 p.m. e.s.t., February 1, 1986, then any
advance payment received in connection with such property is subject to
the prohibitions contained in 550.209.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.416 Imports of Libyan goods and purchases of goods from
Libya.
The prohibitions contained in 550.209 shall not apply to the goods
described in 550.201 and 550.204 if the importation or purchase of
such goods is either not prohibited by 550.201 and 550.204 or
permitted by an authorization or license issued pursuant to this part.
However, any payments in connection with such imports or purchases are
subject to the prohibitions contained in 550.209.
(51 FR 2464, Jan. 16, 1986)
31 CFR 550.417 Letters of credit.
(a) Question. Prior to 4:10 p.m. e.s.t., January 8, 1986, a bank
that is a U.S. person has issued or confirmed a documentary letter of
credit for the Government of Libya as account party in favor of a U.S.
person. The bank does not hold funds for the Government of Libya out of
which it could reimburse itself for payment under the letter of credit.
The U.S. person presents documentary drafts for exports to Libya made
after 4:10 p.m. e.s.t., January 8, 1986. May the bank pay the U.S.
exporter against the drafts?
Answer. No. Such a payment is prohibited by 550.206 and 550.209, as
an extension of credit to the Government of Libya and a transfer of
property in which there is an interest of the Government of Libya.
(b) Question. On the same facts as in paragraph (a), the bank holds
deposits for the Government of Libya. May it pay on the letter of
credit and debit the blocked funds for reimbursement?
Answer. No. A debit to a blocked account is prohibited by 550.209
except as licensed.
(c) Question. On the same facts as in paragraph (a), the Government
of Libya, after 4:10 p.m. e.s.t., January 8, 1986, transfers funds to
the bank to collateralize the letter of credit for purposes of honoring
the obligation to the U.S. exporter. Is the transfer authorized and may
the bank pay against the draft?
Answer. Yes. In accordance with 550.515, the transfer by the
Government of Libya to the bank is licensed. The funds are not blocked
and the bank is authorized to pay under the letter of credit and
reimburse itself from the funds.
(d) Question. Prior to 4:10 p.m. e.s.t., January 8, 1986, a foreign
bank confirms a documentary letter of credit issued by its U.S. agency
or branch for a non-Libyan account party in favor of a Libyan entity.
Can the U.S. agency or branch of the foreign bank transfer funds to that
foreign bank in connection with that foreign bank's payment under the
letter of credit?
Answer. No, the payment of the U.S. agency or branch is blocked,
unless the foreign bank made payment to the Libyan entity prior to 4:10
p.m. e.s.t., January 8, 1986.
(51 FR 2465, Jan. 16, 1986)
31 CFR 550.418 Payments from blocked accounts for U.S. exporters and
other obligations prohibited.
No debits may be made to a blocked account to pay obligations to U.S.
persons or other persons, including payment for goods, technology or
services exported prior to 12:01 a.m. e.s.t., February 1, 1986, except
as authorized pursuant to this part.
(51 FR 2465, Jan. 16, 1986)
31 CFR 550.419 Acquisition of instruments, including bankers'
acceptances.
Section 550.209 prohibits the acquisition by any U.S. person of any
obligation, including bankers' acceptances, in which the documents
evidencing the obligation indicate, or the U.S. person has actual
knowledge, that the transaction being financed covers property in which,
on or after 4:10 p.m. e.s.t., January 8, 1986, the Government of Libya
has an interest of any nature whatsoever.
(51 FR 2465, Jan. 16, 1986)
31 CFR 550.420 Indirect payments to the Government of Libya.
The prohibition in 550.209 on payments or transfers to the
Government of Libya applies to indirect payments (including
reimbursement of a non-U.S. person for payment, as, for example, on a
guarantee) made after 4:10 p.m. e.s.t., January 8, 1986.
(51 FR 2465, Jan. 16, 1986)
31 CFR 550.421 Setoffs prohibited.
A setoff against a blocked account, whether by a bank or other U.S.
person, is a prohibited transfer under 550.209 if effected after 4:10
p.m. e.s.t., January 8, 1986.
(51 FR 2465, Jan. 16, 1986)
31 CFR 550.421 Subpart E -- Licenses, Authorizations, and Statements of Licensing Policy
31 CFR 550.501 Effect of license or authorization.
(a) No license or other authorization contained in this part, or
otherwise issued by or under the direction of the Secretary of the
Treasury pursuant to section 203 of the International Emergency Economic
Powers Act, shall be deemed to authorize or validate any transaction
effected prior to the issuance of the license, unless such license or
other authorization specifically so provides.
(b) No regulation, ruling, instruction, or license authorizes a
transaction prohibited under this part unless the regulation, ruling,
instruction, or license is issued by the Treasury Department and
specifically refers to this part. No regulation, ruling, instruction,
or license referring to this part shall be deemed to authorize any
transactions prohibited by any provision of parts 500, 505, 515, 520,
535, 540, or 545 of this chapter unless the regulation, ruling,
instruction or license specifically refers to such provision.
(c) Any regulation, ruling, instruction, or license authorizing a
transaction otherwise prohibited under this part has the effect of
removing a prohibition or prohibitions in subpart B from the
transaction, but only to the extent specifically stated by its terms.
Unless the regulation, ruling, instruction, or license otherwise
specifies, such an authorization does not create any right, duty,
obligation, claim, or interest in, or with respect to, any property
which would not otherwise exist under ordinary principles of law.
31 CFR 550.502 Exclusion from licenses and authorizations.
The Secretary of the Treasury reserves the right to exclude any
person or property from the operation of any license or to restrict the
applicability thereof to any person or property. Such action shall be
binding upon all persons receiving actual or constructive notice
thereof.
31 CFR 550.503 Imports pursuant to Executive Order 12538.
Petroleum products loaded aboard maritime vessels at any time prior
to November 17, 1985 may be imported into the United States if such
importation would be permitted pursuant to Executive Order 12538 of
November 15, 1985 (50 FR 47527).
31 CFR 550.504 Certain exports authorized.
All transactions ordinarily incident to the exportation of any item,
commodity, or product from the United States to or destined for Libya
are authorized if such exports are authorized under one or more of the
following regulations administered by the Department of Commerce:
(a) 15 CFR 371.6, General license BAGGAGE: accompanied and
unaccompanied baggage;
(b) 15 CFR 371.13, General license GUS: shipments to personnel and
agencies of the U.S. Government;
(c) 15 CFR 371.18, General license GIFT: shipments of gift parcels;
(d) 15 CFR 379.3, General license GTDA: technical data available to
all destinations.
31 CFR 550.505 Certain imports for diplomatic or official personnel
authorized.
All transactions ordinarily incident to the importation of any goods
or services into the United States from Libya are authorized if such
imports are destined for official or personal use by personnel employed
by Libyan missions to international organizations located in the United
States, and such imports are not for resale.
31 CFR 550.506 Certain services relating to participation in various
events authorized.
The importation of services of Libyan origin into the United States
is authorized where a Libyan national enters the United States on a visa
issued by the State Department for the purpose of participating in a
public conference, performance, exhibition or similar event.
31 CFR 550.507 Import of publications authorized.
The importation into the United States is authorized of all Libyan
publications as defined in 550.411.
31 CFR 550.508 Import of certain gifts authorized.
The importation into the United States is authorized for goods of
Libyan origin sent as gifts to persons in the United States where the
value of the gift is not more than $100.
31 CFR 550.509 Import of accompanied baggage authorized.
Persons entering the United States directly or indirectly from Libya
are authorized to import into the United States personal accompanied
baggage normally incident to travel.
31 CFR 550.510 Telecommunications and mail transactions authorized.
All transactions of common carriers incident to the receipt or
transmission of telecommunications and mail between the United States
and Libya are authorized.
31 CFR 550.511 Payments to blocked accounts in domestic banks.
(a) Any payment or transfer of credit, including any payment or
transfer by any U.S. person outside the United States, to a blocked
account in a domestic bank in the name of the Government of Libya is
hereby authorized, provided that such payment or transfer shall not be
made from any blocked account if such payment or transfer represents,
directly or indirectly, a transfer of any interest of the Government of
Libya to any other country or person.
(b) This section does not authorize any transfer from a blocked
account within the United States to an account held by any bank outside
the United States. This section only authorizes payment into a blocked
account held by a domestic bank as defined in 550.317.
(c) This section does not authorize:
(1) Any payment or transfer to any blocked account held in a name
other than that of the Government of Libya where such government is the
ultimate beneficiary of such payment or transfer; or
(2) Any foreign exchange transaction in the United States including,
but not by way of limitation, any transfer of credit, or payment of an
obligation, expressed in terms of the currency of any foreign country.
(d) This section does not authorize any payment or transfer of credit
comprising an integral part of a transaction which cannot be effected
without the subsequent issuance of a further license.
(e) This section does not authorize the crediting of the proceeds of
the sale of securities held in a blocked account or a sub-account
thereof, or the income derived from such securities to a blocked account
or sub-account under any name or designation which differs from the name
or designation of the specific blocked account or sub-account in which
such securities were held.
(f) This section does not authorize any payment or transfer from a
blocked account in a domestic bank to a blocked account held under any
name or designation which differs from the name or designation of the
specified blocked account or sub-account from which the payment or
transfer is made.
(g) The authorization in paragraph (a) of this section is subject to
the condition that written notification from the domestic bank receiving
an authorized payment or transfer is furnished by the transferor to the
Office of Foreign Assets Control confirming that the payment or transfer
has been deposited in a blocked account under the regulations in this
part and providing the account number, the name and address of the
Libyan entity in whose name the account is held, and the name and
address of the domestic bank.
(h) This section authorizes transfer of a blocked demand deposit
account to a blocked interest-bearing account in the name of the same
person at the instruction of the depositor at any time. If such
transfer is to a blocked account in a different domestic bank, such bank
must furnish notification as described in paragraph (g) of this section.
(51 FR 2465, Jan. 16, 1986)
31 CFR 550.512 Payment of certain checks and drafts and documentary
letters of credit.
(a) A bank which is a U.S. person is hereby authorized to make
payments from blocked accounts within such bank of checks and drafts
drawn or issued prior to 4:10 p.m. e.s.t., January 8, 1986, provided
that:
(1) The amount involved in any one payment, acceptance, or debit does
not exceed $5,000; or
(2) The check or draft was in process of collection by a bank which
is a U.S. person on or prior to such date and does not exceed $50,000;
or
(3) The check or draft is in payment for goods furnished or services
rendered by a non-Libyan entity prior to 4:10 p.m. e.s.t., January 8,
1986.
(4) The authorization contained in paragraph (a) of this section,
shall expire at 12:01 a.m., February 17, 1986.
(b) Payments are authorized from blocked accounts of documentary
drafts drawn under irrevocable letters of credit issued or confirmed in
favor of a non-Libyan entity by a bank which is a U.S. person prior to
4:10 p.m. e.s.t., January 8, 1986, provided that (1) the goods that are
the subject of the payment under the letter of credit have been exported
prior to 4:10 p.m. e.s.t., January 8, 1986; and (2) payment under the
letter of credit is made by 12:01 a.m. e.s.t., February 17, 1986.
(c) Paragraphs (a) and (b) of this section, do not authorize any
payment to a Libyan entity except payments into a blocked account in a
domestic bank in accordance with 550.511.
(51 FR 2465, Jan. 16, 1986)
31 CFR 550.513 Completion of certain securities transactions.
(a) Banking institutions within the United States are hereby
authorized to complete, on or before January 21, 1986, purchases and
sales made prior to 4:10 p.m. e.s.t., January 8, 1986, of securities
purchased or sold for the account of the Government of Libya provided
the following terms and conditions are complied with, respectively:
(1) The proceeds of such sale are credited to a blocked account in a
banking institution within the United States in the name of the person
for whose account the sale was made; and
(2) The securities so purchased are held in a blocked account in a
banking institution within the United States in the name of the person
for whose account the purchase was made.
(b) This section does not authorize the crediting of the proceeds of
the sale of securities held in a blocked account or a sub-account
thereof, to a blocked account or sub-account under any name or
designation which differs from the name or designation of the specific
blocked account or sub-account in which such securities were held.
(51 FR 2466, Jan. 16, 1986)
31 CFR 550.515 Payment by the Government of Libya of obligations to
persons within the United States.
(a) The transfer of funds after 4:10 p.m. e.s.t., January 8, 1986,
by, through, or to any banking institution or other person within the
United States solely for purposes of payment of obligations owed by the
Government of Libya to persons within the United States is authorized,
provided that there is no debit to a blocked account. Property is not
blocked by virtue of being transferred or received pursuant to this
section.
(b) A person receiving payment under this section may distribute all
or part of that payment to anyone, provided that any such payment to the
Government of Libya must be to a blocked account in a domestic bank.
(51 FR 2466, Jan. 16, 1986)
31 CFR 550.516 Unblocking of foreign currency deposits held by U.S.
persons overseas.
Deposits in currencies other than U.S. dollars held abroad by U.S.
persons are unblocked, provided, however, that conversions of blocked
dollar deposits into foreign currencies are not authorized.
(51 FR 2466, Jan. 16, 1986)
31 CFR 550.560 Transactions related to travel to, and residence within,
Libya by immediate family members of Libyan nationals.
(a) General License. Subject to compliance with the registration
requirements set forth in paragraph (d) of this section, the following
transactions are authorized in connection with travel to, from and
within Libya and residence within Libya by U.S. citizens and permanent
resident aliens who are immediate family members of Libyan nationals:
(1) All transportation-related transactions ordinarily incident to
travel to, from and within Libya.
(2) All transactions ordinarily incident to residence within Libya,
including payment of living expenses and the acquisition in Libya of
goods for personal use or consumption there.
(3) All transactions incident to the processing and payment of
checks, drafts, traveler's checks, and similar instruments negotiated in
Libya by any person licensed under this section.
(4) The purchase within Libya and importation as accompanied baggage
of items for noncommercial use, provided that the aggregate value of
such purchases imported into the United States conforms to limitations
established by the United States Customs Service.
(b) Definition. For purposes of this section, the term immediate
family member means a spouse, child, parent, mother-in-law,
father-in-law, son-in-law or daughter-in-law.
(c) Specific Licenses. Specific licenses authorizing the
transactions set forth in paragraph (a) of this section may be issued in
appropriate cases to persons similarly situated to the persons described
in paragraph (b) of this section where such specific licenses are
necessary to preserve the integrity of established family units.
(d) Registration. (1) The general license set forth in this section
is available only to those U.S. citizens and permanent resident aliens
who register their eligibility in writing with either of the following:
Embassy of Belgium, Ali Obeydah St., Ibn El Jarah No. 1, Immeuble
Chirlando, Tripoli, Libya, Telephone: 37797
or
Licensing Section, Office of Foreign Assets Control, Department of
the Treasury, Washington, DC 20220, Telephone: (202) 376-0236.
Registration under this paragraph is deemed complete upon receipt at
one of the above addresses of a letter, signed by or on behalf of each
eligible U.S. citizen or permanent resident alien being registered,
containing the following information:
(i) The name and the date and place of birth of the U.S. citizen(s)
or permanent resident alien(s) registering (the ''registrant''),
including the name on which the registrant's most recent U.S. passport
or Alien Registration Receipt Card was issued, if different;
(ii) If applicable, the place and date of the registrant's
naturalization as a U.S. citizen, and the number of the registrant's
naturalization certificate, or, for permanent resident aliens, the Alien
Registration Number of the registrant's Alien Registration Receipt Card;
(iii) The name, relationship, and address of the Libyan national with
whom the registrant resides as an immediate family member and whose
relationship forms the basis for the registrants's eligibility under
this general license; and
(iv) The number and issue date of the registrant's current U.S.
passport, and the most recent date on which the passport was validated
by the U.S. Department of State for travel to Libya; or, if the
registrant does not hold a current U.S. passport, the country, issue
date, and number of the registrant's current passport or other travel
document, if any.
(2) The lack of validation of a registrant's U.S. passport for travel
to Libya does not affect eligibility for the benefits of the general
license set forth in this section for persons who otherwise qualify.
Current information on travel document status as requested in paragraph
(d)(1) of this section must, however, be furnished to register a
registrant's eligibility for this license.
(e) Other Requirements. The general license set forth in this
section shall not operate to relieve any person licensed hereunder from
compliance with any other U.S. legal requirements applicable to the
transactions authorized pursuant to paragraph (a) of this section.
(51 FR 19752, June 2, 1986)
31 CFR 550.568 Certain standby letters of credit and performance bonds.
(a) Notwithstanding any other provision of law, payment into a
blocked account in a domestic bank by an issuing or confirming bank
under a standby letter of credit in favor of a Libyan entity is
prohibited by 550.209 and not authorized, notwithstanding the
provisions of 550.511, if either (1) a specific license has been issued
pursuant to the provisions of paragraph (b) of this section or (2) ten
business days have not expired after notice to the account party
pursuant to paragraph (b) of this section.
(b) Whenever an issuing or confirming bank shall receive such demand
for payment under such a standby letter of credit, it shall promptly
notify the account party. The account party may then apply within five
business days for a specific license authorizing the account party to
establish a blocked account on its books in the name of the Libyan
entity in the amount payable under the credit, in lieu of payment by the
issuing or confirming bank into a blocked account and reimbursement
therefor by the account party. Nothing in this section relieves any
such bank or such account party from giving any notice of defense
against payment or reimbursement that is required by applicable law.
(c) Where there is outstanding a demand for payment under a standby
letter of credit, and the issuing or confirming bank has been enjoined
from making payment, upon removal of the injunction, the account party
may apply for a specific license for the same purpose and in the same
manner as that set forth in paragraph (b) of this section. The issuing
or confirming bank shall not make payment under the standby letter of
credit unless (1) ten business days have expired since the bank has
received notice of the removal of the injunction and (2) a specific
license issued to the account party pursuant to the provisions of this
paragraph has not been presented to the bank.
(d) If necessary to assure the availability of the funds blocked, the
Secretary may at any time require the payment of the amounts due under
any letter of credit described in paragraph (a) of this section into a
blocked account in a domestic bank or the supplying of any form of
security deemed necessary.
(e) Nothing in this section precludes the account party on any
standby letter of credit or any other person from at any time contesting
the legality of the demand from Libyan entity or from raising any other
legal defense to payment under the standby letter of credit.
(f) This section does not affect the obligation of the various
parties of the instruments covered by this section if the instruments
and payments thereunder are subsequently unblocked.
(g) For the purposes of this section, (1) the term ''standby letter
of credit'' shall mean a letter of credit securing performance of, or
repayment of any advance payments or deposits under, a contract with the
Government of Libya, or any similar obligation in the nature of a
performance bond; and (2) the term ''account party'' shall mean the
person for whose account the standby letter of credit is opened.
(h) The regulations do not authorize any U.S. person to reimburse a
non-U.S. bank for payment to the Government of Libya under a standby
letter of credit, except by payments into a blocked account in
accordance with 550.511 or paragraph (b) or (c) of this section.
(i) A person receiving a specific license under paragraph (b) or (c)
of this section shall certify to the Office of Foreign Assets Control
within five business days after receipt of that license that it has
established the blocked account on its books as provided for in those
paragraphs. However, in appropriate cases, this time period may be
extended upon application to the Office of Foreign Assets Control when
the account party has filed a petition with an appropriate court seeking
a judicial order barring payment by the issuing or confirming bank.
(j) The extension or renewal of a standby letter of credit is
authorized.
(51 FR 2466, Jan. 16, 1986)
31 CFR 550.568 Subpart F -- Reports
31 CFR 550.601 Required records.
Every person engaging in any transaction subject to this part shall
keep a full and accurate record of each transaction in which he engages,
including any transaction effected pursuant to license or otherwise, and
such records shall be available for examination for at least two years
after the date of such transaction.
31 CFR 550.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, at any time as may be required, complete
information relative to any transaction subject to this part, regardless
of whether such transaction is effected pursuant to license or
otherwise. Such reports may be required to include the production of
any books of account, contracts, letters, and other papers connected
with any transaction in the custody or control of the persons required
to make such reports. Reports with respect to transactions may be
required either before or after such transactions are completed. The
Secretary of the Treasury may, through any person or agency, conduct
investigations, hold hearings, administer oaths, examine witnesses,
receive evidence, take depositions, and require by subpoena the
attendance and testimony of witnesses and the production of all books,
papers, and documents relating to any matter under investigation.
(51 FR 1354, Jan. 10, 1986, as amended at 51 FR 2467, Jan. 16, 1986)
31 CFR 550.605 Reports of U.S. persons with foreign affiliates that
engage in Libyan transactions.
(a) Requirement for reports. Reports are required to be filed on or
before August 15, 1986, in the manner prescribed in this section, with
respect to all foreign affiliates that engaged in Libyan transactions at
any time between July 1, 1985 and June 30, 1986.
(b) Who must report. A report must be filed by each U.S. person
owning or controlling any foreign affiliate that engaged in Libyan
transactions at any time between July 1, 1985 and June 30, 1986. A
single U.S. person within a consolidated or affiliated group may be
designated to report on each foreign affiliate of the U.S. members of
the group. Such centralized reporting may be done by the U.S. person
who owns or controls, or has been delegated authority to file on behalf
of, the remaining U.S. persons in the group.
(1) Reporting exemption. A U.S. person is exempt from the filing
requirements of this section if the Libyan transactions of all foreign
affiliates of such person, and of such person's consolidated or
affiliated group, for the period from July 1, 1985, through June 30,
1986, had an aggregate value not exceeding $50,000.
(2) U.S. branches of foreign entities. The Libyan transactions of an
entity organized or located outside the United States, and which is not
owned or controlled by U.S. persons, are not subject to the reporting
requirements of this section merely because such foreign entity has a
U.S. branch, office, or agency that constitutes a U.S. person pursuant
to 550.308.
(c) Contents of report. The following information shall be provided
concerning each foreign affiliate that engaged in Libyan transactions
during the Reporting Period (with responses numbered to correspond with
the numbers used below):
(1) Identification of reporting U.S. person.
(i) Name;
(ii) Address (indicate both street and mailing address, if
different);
(iii) Name and telephone number of individual to contact (indicate
title or position, if applicable);
(iv) Relationship to foreign affiliate and percentage of direct
and/or indirect ownership.
(2) Identification of foreign affiliate.
(i) Full entity name;
(ii) Address (street and mailing addresses);
(iii) Country in which organized or incorporated, and entity type
(corporation, partnership, limited liability company, etc.).
(3) Information on Libyan transactions of each foreign affiliate.
(Data provided in response to paragraphs (c)(3) (i), (ii), (iii), and
(iv) of this section shall be separately stated for Periods I and II, as
defined in paragraph (e)(3) of this section, with aggregate data in
response to paragraphs (c)(3) (i), (iii), and (v) of this section
further segregated between sales and purchase transactions.)
(i) Brief but complete description of the nature of goods or
technology sold or purchased, or of services rendered or purchased, by
the foreign affiliate in Libyan transactions during the Reporting
Period, and, for each type of transaction, identification of the Libyan
end-user(s) or vendor(s) of the goods, technology, or services;
(ii) Number of employees involved in Libyan transactions to the
extent of at least 25% of their time during Period I or Period II,
categorized by nationality and location (example: Five (nationality)
employees in Libya);
(iii) Approximate amount (in U.S. dollars) of revenue from, or
expense for, Libyan transactions of the foreign affiliate during the
Reporting Period;
(iv) Approximate amount (in U.S. dollars) of (A) taxes, (B) rents,
and (C) royalties (state each separately) paid to the Government of
Libya or Libyan entities (as defined in 550.304 and 550.319) during
the Reporting Period;
(v) Anticipated revenue from, or expense for, Libyan transactions of
the foreign affiliate (in U.S. dollars) for the period from July 1, 1986
through June 30, 1987;
(vi) Anticipated number of employees involved in Libyan transactions
to the extent of at least 25% of their time for the period from July 1,
1986 through June 30, 1987.
(d) Where to report. Reports should be prepared in triplicate, two
copies of which are to be filed with the Census Section, Unit 605,
Office of Foreign Assets Control, Department of the Treasury,
Washington, DC 20220. The third copy shall be retained for the
reporter's business records.
(e) Definitions. For the purposes of this section, the following
terms have the meanings indicated below:
(1) Foreign affiliate means an entity (other than a U.S. person as
defined in 550.308) which is organized or located outside the United
States, and which is owned or controlled by a U.S. person or persons.
(2) Libyan transactions means (i) sales of goods or technology, or
the provision of services (including brokerage and financial services),
to, or for the benefit of, the Government of Libya, persons within
Libya, or Libyan entities wherever located, or (ii) purchases of goods,
technology, or services from the Government of Libya, persons within
Libya, or Libyan entities wherever located.
(3) Reporting Period means the 12-month period from July 1, 1985,
through June 30, 1986. The Reporting Period is divided into two
six-month periods: ''Period I'' consists of the six-month period ended
December 31, 1985; ''Period II'' consists of the six-month period
ending June 30, 1986.
(51 FR 25634, July 15, 1986; 51 FR 26687, July 25, 1986)
31 CFR 550.630 Reports on Form TFR-630 (TDF 90-22.32).
(a) Requirement for reports. Reports on Form TFR-630 (TDF 90-22.32)
are hereby required to be filed on or before November 20, 1987, in the
manner prescribed herein, with respect to all property held by any
United States person at any time between 4:10 p.m. e.s.t., January 8,
1986, and June 30, 1987, in which property the Government of Libya or
any Libyan entity has or has had any interest.
(b) Who must report. Reports on Form TFR-630 (TDF 90-22.32) must be
filed by each of the following:
(1) Any U.S. person, or his successor, who at 4:10 p.m. e.s.t.,
January 8, 1986, or any subsequent date up to and including June 30,
1987, had in his custody, possession or control, directly or indirectly,
in trust or otherwise, property in which there was, within such period,
any direct or indirect interest of the Government of Libya or any Libyan
entity, whether or not such property continued to be held by that person
on June 30, 1987; and
(2) Any business or non-business entity in the United States in which
the Government of Libya or any Libyan entity held any financial interest
on January 8, 1986, or any subsequent date up to and including June 30,
1987.
(c) Property not required to be reported. A report on Form TFR-630
(TDF 90-22.32) is not required with respect to:
(1) Property of a private Libyan national; and
(2) Patents, copyrights, trademarks and inventions, but this
exemption shall not constitute a waiver of any reporting requirement
with respect to royalties due and unpaid.
(d) Filing Form TFR-630 (TDF 90-22.32). Reports on Form TFR-630 (TDF
90-22.32) shall be prepared in triplicate. On or before November 20,
1987, two copies shall be sent in a set to Unit 630, Office of Foreign
Assets Control, Department of the Treasury, Washington, DC 20220. The
third copy must be retained with the reporter's records.
(e) Certification. Every report on Form TFR-630 (TDF 90-22.32) shall
contain the certification required in Part E of the form. Failure to
complete the certification shall render the report ineffective, and the
submission of such a report shall not constitute compliance with this
section.
(f) Confidentiality of reports. Reports on Form TFR-630 (TDF
90-22.32) are regarded as privileged and confidential.
(Approved by the Office of Management and Budget under control number
1505-0102)
(52 FR 35548, Sept. 22, 1987)
31 CFR 550.635 Reports on Form TFR-635 (TDF 90-22.33).
(a) Requirement for reports. Reports on Form TFR-635 (TDF 90-22.33)
are hereby required to be filed on or before November 20, 1987, in the
manner prescribed herein, with respect to claims for losses due to
expropriation, nationalization, or other taking of property or
businesses in Libya, including any special measures such as Libyan
exchange controls directed against such property or businesses; claims
for debt defaults, for damages for breach of contract or similar
damages; and personal claims for salaries or for injury to person or
property.
(b) Who must report. Reports on Form TFR-635 (TDF 90-22.33) must be
filed by every U.S. person who had a claim outstanding against the
Government of Libya or any Libyan entity which arose before June 30,
1987. No report is to be submitted by a U.S. branch of a foreign firm
not owned or controlled by a U.S. person.
(c) Filing Form TFR-635 (TDF 90-22.33). Reports on Form TFR-635 (TDF
90-22.33) shall be prepared in triplicate. On or before November 20,
1987, two copies shall be sent in a set to Unit 635, Office of Foreign
Assets Control, Department of the Treasury, Washington, DC 20220. The
third copy must be retained with the reporter's record.
(d) Certification. Every report on Form TFR-635 (TDF 90-22.33) shall
contain the certification required on Part C of the form. Failure to
complete the certification shall render the report ineffective, and the
submission of such a report shall not constitute compliance with this
section.
(e) Confidentiality of reports. Reports on Form TFR-635 (TDF
90-22.33) are regarded as privileged and confidential.
(Approved by the Office of Management and Budget under control number
1505-0103)
(52 FR 35549, Sept. 22, 1987)
31 CFR 550.635 Subpart G -- Penalties
31 CFR 550.701 Penalties.
(a) Attention is directed to section 206 of the International
Emergency Economic Powers Act, 50 U.S.C. 1705, which provides in part:
A civil penalty of not to exceed $10,000 may be imposed on any person
who violates any license, order, or regulation issued under this title.
Whoever willfully violates any license, order, or regulation issued
under this title shall, upon conviction, be fined not more than $50,000,
or, if a natural person, may be imprisoned for not more than ten years,
or both; and any officer, director, or agent of any corporation who
knowingly participates in such violation may be punished by a like fine,
imprisonment, or both.
This section of the International Emergency Economic Powers Act is
applicable to violations of any provision of this part and to violations
of the provisions of any license, ruling, regulation, order, direction,
or instruction issued by or pursuant to the direction or authorization
of the Secretary of the Treasury pursuant to this part or otherwise
under the International Emergency Economic Powers Act.
(b) Attention is also directed to 18 U.S.C. 1001, which provides:
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representation or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
(c) Violations of this part may also be subject to relevant
provisions of the Customs laws and other applicable laws.
31 CFR 550.702 Detention of shipments.
Import shipments into the United States of goods of Libyan origin in
violation of 550.201 and export shipments from the United States of
goods destined for Libya in violation of 550.202 shall be detained. No
such import or export shall be permitted to proceed, except as
specifically authorized by the Secretary of the Treasury. Such
shipments shall be subject to licensing, penalties or forfeiture action,
under the Customs laws or other applicable provision of law, depending
on the circumstances.
31 CFR 550.703 Prepenalty notice.
(a) When required. If the Director of the Office of Foreign Assets
Control (hereinafter ''Director) has reasonable cause to believe that
there has occurred a violation of any provision of this part or a
violation of the provisions of any license, ruling, regulation, order,
direction or instruction issued by or pursuant to the direction or
authorization of the Secretary of the Treasury pursuant to this part or
otherwise under the International Emergency Economic Powers Act, and the
Director determines that further proceedings are warranted, he shall
issue to the person concerned a notice of his intent to impose a
monetary penalty. The prepenalty notice shall be issued whether or not
another agency has taken any action with respect to this matter.
(b) Contents -- (1) Facts of violation.
The prepenalty notice shall:
(i) Describe the violation.
(ii) Specify the laws and regulations allegedly violated.
(iii) State the amount of the proposed monetary penalty.
(2) Right to make presentations. The prepenalty notice also shall
inform the person of his right to make a written presentation within
thirty (30) days of mailing of the notice as to why a monetary penalty
should not be imposed, or, if imposed, why it should be in a lesser
amount than proposed.
(53 FR 7357, Mar. 8, 1988)
31 CFR 550.704 Presentation responding to prepenalty notice.
(a) Time within which to respond. The named person shall have 30
days from the date of mailing of the prepenalty notice to make a written
presentation to the Director.
(b) Form and contents of written presentation. The written
presentation need not be in any particular form, but shall contain
information sufficient to indicate that it is in response to the
prepenalty notice. It should contain responses to the allegations in
the prepenalty notice and set forth the reasons why the person believes
the penalty should not be imposed or, if imposed, why it should be in a
lesser amount than proposed.
(53 FR 7357, Mar. 8, 1988)
31 CFR 550.705 Penalty notice.
(a) No violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was no violation by the person named in the prepenalty notice, he
promptly shall notify the person in writing of that determination and
that no monetary penalty will be imposed.
(b) Violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was a violation by the person named in the prepenalty notice, he
promptly shall issue a written notice of the imposition of the monetary
penalty to that person.
(53 FR 7358, Mar. 8, 1988)
31 CFR 550.706 Referral to United States Department of Justice.
In the event that the person named does not pay the penalty imposed
pursuant to this subpart or make payment arrangements acceptable to the
Director within thirty days of the mailing of the written notice of the
imposition of the penalty, the matter shall be referred to the United
States Department of Justice for appropriate action to recover the
penalty in a civil suit in a Federal district court.
(53 FR 7358, Mar. 8, 1988)
31 CFR 550.706 Subpart H -- Procedures
31 CFR 550.801 Licensing.
(a) General licenses. General licenses have been issued authorizing
under appropriate terms and conditions certain types of transactions
which are subject to the prohibitions contained in subpart B of this
part. All such licenses are set forth in subpart E of this part. It is
the policy of the Office of Foreign Assets Control not to grant
applications for specific licenses authorizing transactions to which the
provisions of an outstanding general license are applicable. Persons
availing themselves of certain general licenses may be required to file
reports and statements in accordance with the instructions specified in
those licenses.
(b) Specific licenses -- (1) General course of procedure.
Transactions subject to the prohibitions contained in subpart B of this
part which are not authorized by general license may be effected only
under specific licenses.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transactions prohibited by or pursuant to this
part may be filed by letter with the Office of Foreign Assets Control.
Any person having an interest in a transaction or proposed transaction
may file an application for a license authorizing such transaction, but
the applicant for a specific license is required to make full disclosure
of all parties in interest to the transaction so that a decision on the
application may be made with full knowledge of all relevant facts and so
that the identity and location of the persons who know about the
transaction may be easily ascertained in the event of inquiry.
(3) Information to be supplied. The applicant must supply all
information specified by relevant instructions, and must fully disclose
the names of all the parties who are concerned with or interested in the
proposed transaction. If the application is filed by an agent, the
agent must disclose the name of his principal(s). Such documents as may
be relevant shall be attached to each application as a part of such
application except that documents previously filed with the Office of
Foreign Assets Control may, where appropriate, be incorporated by
reference. Applicants may be required to furnish such further
information as is deemed necessary to a proper determination by the
Office of Foreign Assets Control. Any applicant or other party in
interest desiring to present additional information concerning the
application may do so at any time. Arrangements for oral presentation
may be made with the Office of Foreign Assets Control.
(4) Effect of denial. The denial of a license does not preclude the
reopening of an application or the filing of a further application. The
applicant or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition of the issuance
of any license, the licensee may be required to file reports with
respect to the transaction covered by the license, in such form and at
such times and places as may be prescribed in the license or otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the
Treasury, acting in accordance with such regulations, rulings, and
instructions as the Secretary of the Treasury or the Office of Foreign
Assets Control may from time to time prescribe, or licenses may be
issued by the Secretary of the Treasury acting directly or through a
designated person, agency, or instrumentality.
(c) Address. License applications, reports, and inquiries should be
addressed to the appropriate section or individual within the Office of
Foreign Assets Control, or to its Director, at the following address:
Office of Foreign Assets Control, U.S. Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220.
(51 FR 1354, Jan. 10, 1986, as amended at 57 FR 1389, 1390, Jan. 14,
1992)
31 CFR 550.802 Decisions.
The Office of Foreign Assets Control will advise each applicant of
the decision respecting filed applications. The decision of the Office
of Foreign Assets Control with respect to an application shall
constitute a final agency action.
(51 FR 1354, Jan. 10, 1986, as amended at 57 FR 1390, Jan. 14, 1992)
31 CFR 550.803 Amendment, modification, or revocation.
The provisions of this part and any rulings, licenses,
authorizations, instructions, orders or forms issued hereunder may be
amended, modified, or revoked at any time.
31 CFR 550.804 Rulemaking.
(a) All rules and other public documents are issued by the Secretary
of the Treasury upon recommendation of the Director of the Office of
Foreign Assets Control. Except to the extent that there is involved any
military, naval, or foreign affairs function of the United States or any
matter relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts, and except when interpretive
rules, general statements of policy, or rules of agency organization,
practice, or procedure are involved, or when notice and public procedure
are impracticable, unnecessary, or contrary to the public interest,
interested persons will be afforded an opportunity to participate in
rulemaking through the submission of written data, views, or arguments,
with oral presentation at the discretion of the Director. In general,
rulemaking by the Office of Foreign Assets Control involves foreign
affairs functions of the United States. Wherever possible, however, it
is the practice to hold informal consultations with interested groups or
persons before the issuance of any rule or other public document.
(b) Any interested person may petition the Director of the Office of
Foreign Assets Control in writing for the issuance, amendment or
revocation of any rule.
31 CFR 550.805 Delegation by the Secretary of the Treasury.
Any action which the Secretary of the Treasury is authorized to take
pursuant to Executive Order 12543 may be taken by the Director of the
Office of Foreign Assets Control, or by any other person to whom the
Secretary of the Treasury has delegated authority so to act.
31 CFR 550.806 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control required by
the Freedom of Information Act (5 U.S.C. 552) to be made available to
the public shall be made available in accordance with the definitions,
procedures, requirements for payment of fees, and other provisions of
the Regulations on the Disclosure of Records of the Departmental Offices
and of other bureaus and offices of the Department of Treasury issued
under 5 U.S.C. 552 and published in part 1 of this title.
(b) The records of the Office of Foreign Assets Control required by
the Privacy Act (5 U.S.C. 552a) to be made available to an individual
shall be made available in accordance with the definitions, procedures,
requirements for payment of fees, and other provisions of the
Regulations on Disclosure of Records of the Departmental Offices and of
other bureaus and offices of the Department of the Treasury issued under
5 U.S.C. 552a and published in part 1 of this title.
(c) Any form used in connection with the Libyan Sanctions Regulations
may be obtained in person from or by writing to the Office of Foreign
Assets Control, U.S. Department of the Treasury, 1500 Pennsylvania
Avenue, NW., Washington, DC 20220.
(57 FR 1390, Jan. 14, 1992)
31 CFR 550.807 Customs procedures: Merchandise specified in 550.201.
(a) With respect to merchandise specified in 550.201, appropriate
Customs officers shall not accept or allow any:
(1) Entry for consumption or warehousing (including any appraisement
entry, any entry of goods imported in the mails, regardless of value,
and any informal entry);
(2) Entry for immediate exportation;
(3) Entry for transportation and exportation;
(4) Entry for immediate transportation;
(5) Withdrawal from warehouse;
(6) Entry, transfer or withdrawal from a foreign trade zone; or
(7) Manipulation or manufacture in a warehouse or in a foreign trade
zone, unless:
(i) The merchandise was imported prior to 12:01 a.m., Eastern
Standard Time, February 1, 1986, or
(ii) A specific license pursuant to this part is presented, or
(iii) Instructions from the Office of Foreign Assets Control,
authorizing the transactions are received.
(b) Whenever a specific license is presented to an appropriate
Customs officer in accordance with this section, one additional legible
copy of the entry, withdrawal or other appropriate document with respect
to the merchandise involved shall be filed with the appropriate Customs
officers at the port where the transaction is to take place. Each copy
of any such entry, withdrawal or other appropriate document, including
the additional copy, shall bear plainly on its face the number of the
license pursuant to which it is filed. The original copy of the
specific license shall be presented to the appropriate Customs officers
in respect of each such transactions and shall bear a notation in ink by
the licensee or person presenting the license showing the description,
quantity and value of the merchandise to be entered, withdrawn or
otherwise dealt with. This notation shall be so placed and so written
that there will exist no possibility of confusing it with anything
placed on the license at the time of its issuance. If the license in
fact authorizes the entry, withdrawal or other transactions with regard
to the merchandise, the appropriate Customs officer, or other authorized
Customs employee, shall verify the notation by signing or initialing it
after first assuring himself that it accurately describes the
merchandise it purports to represent. The license shall thereafter be
returned to the person presenting it and the additional copy of the
entry, withdrawal or other appropriate document shall be forwarded by
the appropriate Customs officer to the Office of Foreign Assets Control.
(c) If it is unclear whether an entry, withdrawal or other action
affected by this section requires a specific Foreign Assets Control
license, the appropriate Customs officer shall withhold action thereon
and shall advise such person to communicate directly with the Office of
Foreign Assets Control to request that instructions be sent to the
Customs officer to authorize him to take action with regard thereto.
(51 FR 1354, Jan. 10, 1986, as amended at 57 FR 1390, Jan. 14, 1992)
31 CFR 550.807 Subpart I -- Miscellaneous
31 CFR 550.901 Paperwork Reduction Act notice.
The information collection requirements in 550.210(d), 550.511 (g)
and (h), 550.568 (b), (c), and (i), 550.601, 550.602, and 550.801(b)
(2), (3), and (5) have been approved by the Office of Management and
Budget and assigned control number 1505-0092. The information
collection requirements in 550.560 (c) and (d) and 550.605 have been
approved by the Office of Management and Budget and assigned control
number 1505-0093.
(51 FR 28933, Aug. 13, 1986)
31 CFR 550.901 Pt. 550, App. A
31 CFR 550.901 Appendix A to Part 550 -- Organizations Determined To Be
Within the Term ''Government of Libya'' (Specially Designated Nationals
of Libya)
The names and addresses listed below are the most complete ones
currently known to the Office of Foreign Assets Control. Unless
otherwise indicated, listed organizations located in Libya meet the
definition of ''Government of Libya'' not only at their locations inside
of Libya, but also at all their other locations worldwide. Listed
organizations outside of Libya also meet the definition of ''Government
of Libya'' not only at their cited addresses, but also at all their
other locations worldwide. The absence of any particular person from
the list of specially designated nationals is not to be construed as
evidence that it is not owned or controlled by, or acting or purporting
to act directly or indirectly on behalf of, the Government of Libya.
Please note that name variations and addresses are subject to change
over time and that the Office of Foreign Assets Control will update name
and address information periodically.
A. BORTOLOTTI & COMPANY S.P.A.,
(a.k.a. BORTOLOTTI),
Via Predore, 59, 24067 Sarnico, Bergamo, Italy, Cremona, Italy.
AD-DAR AL JAMAHIRIYA FOR PUBLISHING DISTRIBUTION & ADVERTISING,
P.O. Box 17459, Misurata, Libya,
P.O. Box 959, Tripoli, Libya,
P.O. Box 321, Benghazi, Libya,
P.O. Box 20108, Sebha, Libya,
P.O. Box 547, Valletta, Malta,
P.O. Box 15977, Casablanca, Morocco.
AGIP NORTH AFRICA AND MIDDLE EAST OIL COMPANY,
(a.k.a. AGIP (N.A.M.E.) LIMITED),
Adahr, P.O. Box 346, Sciara Giakarta, Tripoli, Libya,
Benghazi Office, P.O. Box 4120, Benghazi, Libya,
(Designation applies only to joint venture located in Libya).
AL HAMBRA HOLDING COMPANY,
Madrid, Spain.
AQUITAINE LIBYE,
Omar El Mokhtar Street, P.O. Box 282, Tripoli, Libya,
(Designation applies only to joint venture located in Libya).
ARAB REAL ESTATE COMPANY,
(a.k.a. ARESCO),
Beirut, Lebanon.
ARABIAN GULF OIL COMPANY,
(a.k.a. AGOCO),
P.O. Box 263, Al Kish, Benghazi, Libya,
P.O. Box 693-325, Ben Ashour Street, Tripoli, Libya,
Sarir Field, Libya,
Windsor House, 42-50 Victoria Street, London SW1H 0NW, United
Kingdom.
ASTERIS S.A. INDUSTRIAL & COMMERCIAL CORPORATION,
Athens, Greece.
AZZAWIYA OIL REFINING COMPANY, INC.,
P.O. Box 1575, Tripoli, Libya,
P.O. Box 6451, Tripoli, Libya,
Benghazi Asphalt Plant Office, Benghazi, Libya.
BANQUE ARABE LIBYENNE BURKINABE POUR LE COMMERCE EXTERIEUR ET LE
DEVELOPPEMENT,
1336 Avenue Nelson Mandela, Ouagadougou, Burkina Faso.
BANQUE ARABE LIBYENNE MALIENNE POUR LE COMMERCE EXTERIEUR ET LE
DEVELOPPEMENT,
(a.k.a. BALIMA),
P.O. Box 2372, Bamako, Mali.
BANQUE ARABE LIBYENNE MAURITANIENNE POUR LE COMMERCE EXTERIEUR ET LE
DEVELOPPEMENT,
(a.k.a. BALM),
Jamal Abdulnasser Street, P.O. Box 262, Nouakchott, Mauritania.
BANQUE ARABE LIBYENNE NIGERIENNE POUR LE COMMERCE EXTERIEUR ET LE
DEVELOPPEMENT,P.O. Box 11363, Niamey, Niger.
BANQUE ARABE LIBYENNE TOGOLAISE DU COMMERCE EXTERIEUR,
(a.k.a. BALTEX),
P.O. Box 4874, Lome, Togo.
BANQUE ARABE TUNISO-LIBYENNE DE DEVELOPPEMENT ET DE COMMERCE
EXTERIEUR,
(a.k.a. B.T.L),
25 Avenue Kheireddine Pacha, P.O. Box 102, 1002 Le Belvedere, Tunis,
Tunisia.
BANQUE INTERCONTINENTALE ARABE,
67, Avenue Franklin Roosevelt, 75008 Paris, France.
BANQUE TCHADO ARABE LIBYENNE,
P.O. Box 104, N'Djamena, Chad.
CENTRAL BANK OF LIBYA,
Al-Fatah Street, P.O. Box 1103, Tripoli, Libya,
Benghazi, Libya,
Sebha, Libya.
CHEMPETROL,
(a.k.a. CHEMPETROL INTERNATIONAL),
145, Flat 9, Tower Road, Sliema, Malta.
CHEMPETROL INTERNATIONAL LTD.,
5th Floor, Quality Court, Chancery Lane, London WC2A 1HP, United
Kingdom,
28 Lincoln's Inn Fields, London WC2A 3HH, United Kingdom.
COMPAGNIE ALGERO-LIBYENNE DE TRANSPORT MARITIME,
(a.k.a. CALTRAM),
21 Rue des Freres Bouadou, Birmandreis, Algiers, Algeria.
CORINTHIA GROUP OF COMPANIES,
Head Office, 22, Europa Centre, Floriana, Malta.
CORINTHIA PALACE HOTEL COMPANY LIMITED,
De Paula Avenue, Attard, Malta.
F.A. PETROLI S.P.A.,
Italy.
GENERAL ARAB AFRICAN COMPANY,
(a.k.a. GAAC),
(a.k.a. GAAE),
(a.k.a. GENERAL ARAB AFRICAN ENTERPRISE),
P.O. Box 8059, 219 Mohammed El Megarief Street, Tripoli, Libya,
Nasser Street, Benghazi, Libya.
GENERAL ESTABLISHMENT FOR PUBLICATION DISTRIBUTION & ADVERTISING,
P.O. Box 113, Beirut, Lebanon.
HOLBORN EUROPA RAFFINERIE GMBH,
(a.k.a. HER),
Rothenbaumchaussee 5, 4th Floor, D-2000 Hamburg 13, Germany,
Moorburger Strasse 16, D-2100 Hamburg 90, Germany.
HOLBORN EUROPEAN MARKETING COMPANY LIMITED,
(a.k.a. HEMCL),
Miranda Court No. 1, Ipirou Street, P.O. Box 897, Larnaca, Cyprus,
Hofplein 33, 3011 AJ Rotterdam, Netherlands.
HOLBORN INVESTMENT COMPANY LIMITED,
(a.k.a. HICL),
Miranda Court No. 1, Ipirou Street, P.O. Box 897, Larnaca, Cyprus.
INTERNATIONAL HOLDING COMPANY,
Luxembourg Ville, Luxembourg.
JAMAHIRIYA BANK,
(f.k.a. MASRAF AL-GUMHOURIA),
P.O. Box 3224, Martyr Street, Megarief, Tripoli, Libya,
Emhemed Megarief Street, Tripoli, Libya,
P.O. Box 1291, Benghazi, Libya,
(38 local branches in Libya).
JERMA PALACE HOTEL,
Maarsancala, Malta.
JOINT OIL
(a.k.a. JOINT EXPLORATION, EXPLOITATION AND PETROLEUM SERVICES
COMPANY),
(a.k.a. JOINT OIL TUNISIA),
(a.k.a. LIBYAN-TUNISIAN EXPLORATION COMPANY),
(a.k.a. SOCIETE DE RECHERCHE ET D'EXPLOITATION COMMUNE ET DE SERVICE
PETROLIERE),
B.P. 350 Houmt Souk 4180, Djerba Island, Tunisia,
7th of November offshore field, Gulf of Gabes,
Planning & Logistic Group complex, Port of Zarzis, Tunisia.
JOINT TURKISH LIBYAN AGRICULTURAL LIVESTOCK COMPANY,
Ankara, Turkey.
KAELBLE-GMEINDER GMBH,
(a.k.a. KAELBLE & GMEINDER COMPANY),
Maubacher Strasse 100, Postfach 13 20, W-7150 Backnang, Germany.
LAFI TRADE MALTA,
14517 Tower Road, Sliema, Malta.
LIBERIAN LIBYAN HOLDING COMPANY,
Monrovia, Liberia.
LIBYAN AGRICULTURAL BANK,
(a.k.a. THE AGRICULTURAL BANK),
(a.k.a. NATIONAL AGRICULTURAL BANK OF LIBYA),
52, Omar El Mokhtar Street, P.O. Box 1100, Tripoli, Libya,
(1 city branch and 27 branches in Libya).
LIBYAN ARAB AIRLINES,
(a.k.a. LAA),
Shahrah Haiti, P.O. Box 2555, Tripoli, Libya,
P.O. Box 360, Benghazi, Libya,
(Numerous branch offices and facilities abroad).
LIBYAN ARAB FOREIGN BANK
(a.k.a. LAFB),
Dat El Imad Complex Tower No. 2, P.O. Box 2542, Tripoli, Libya.
LIBYAN ARAB FOREIGN INVESTMENT COMPANY,
(a.k.a. LAFICO),
P.O. Box 4538, Maidan Masif El Baladi, Tripoli, Libya,
Athens, Greece,
Rome, Italy,
Malta.
LIBYAN ARAB MALTESE HOLDING COMPANY LIMITED,
(a.k.a. LAMHCO),
St. Mark House, Cappuchan Street, Floriana, Malta.
LIBYAN ARAB UGANDA BANK FOR FOREIGN TRADE AND DEVELOPMENT,
P.O. Box 9485, Kampala, Uganda.
LIBYAN ARAB UGANDA HOLDING COMPANY LIMITED,
(a.k.a. UGANDA LIBYAN HOLDING COMPANY LIMITED),
Kampala, Uganda.
LIBYAN-GREEK INVESTMENT COMPANY,
Athens, Greece.
MEDISAN LIMITED,
Rl 6A, Industrial Estate, Ricasoli, Malta.
MEDITERRANEAN AVIATION COMPANY, LIMITED,
(a.k.a. MEDAVIA),
Malta.
MEDITERRANEAN POWER ELECTRIC COMPANY LIMITED,
A 18B, Industrial Estate, Marsa, Malta
MEDITERRANEAN OIL SERVICES GMBH,
(a.k.a. MEDITERRANEAN SEA OIL SERVICES GMBH),
(a.k.a. MEDOIL),
P.O. Box 5601, Immermannstrasse 40, D-4000 Dusseldorf 1, Germany.
MENIL ENSTALT COMPANY,
Vaduz, Liechtenstein.
METROVIA,
Switzerland.
NATIONAL COMMERCIAL BANK S.A.L.,
P.O. Box 4647, Shuhada Square, Tripoli, Libya,
P.O. Box 166, Benghazi, Libya,
(22 branches in Libya).
NATIONAL COMPANY DRILLING CHEMICAL & EQUIPMENT,
(a.k.a. JOWFE),
NOC Building, Ashjara Square, Benghazi, Libya.
NATIONAL COMPANY FOR FIELD AND TERMINALS CATERING,
Airport Road, Km. 3, P.O. Box 491, Tripoli, Libya.
NATIONAL COMPANY FOR OILFIELD EQUIPMENT,
P.O. Box 8707, Tripoli, Libya.
NATIONAL DRILLING WORKOVER COMPANY,
(a.k.a. NATIONAL DRILLING COMPANY)
(a.k.a. NATIONAL DRILLING COMPANY (LIBYA)),
208 Omar El Mokhtar Street, P.O. Box 1454, Tripoli, Libya.
NATIONAL OIL CORPORATION,
(a.k.a. LIBYAN NATIONAL OIL CORPORATION),
(a.k.a. LNOC),
(a.k.a. NOC),
Bashir Saadawi Street, P.O. Box 2655, Tripoli, Libya,
P.O. Box 2978, Benghazi, Libya,
Dahra Gas Projects Office, Dahra Street, P.O. Box 12221, Dahra,
Tripoli, Libya,
Petroleum Training and Qualifying Institute, Zawia Road, Km. 9, P.O.
Box 6184, Tripoli, Libya,
Petroleum Research Centre, Al Nasser Street, P.O. Box 6431, Tripoli,
Libya,
(Subsidiaries and joint ventures in Libya and worldwide).
NATIONAL PETROCHEMICALS COMPANY,
(a.k.a. NAPETCO),
(f.k.a. NATIONAL METHANOL COMPANY),
P.O. Box 20812, Marsa Brega, Libya,
P.O. Box 5324, Garden City, Benghazi, Libya,
Dusseldorf, Germany (Office Closed).
NEUTRON INTERNATIONAL,
Tripoli, Libya.
NORDDEUTSCHE OELLEITUNGSGESELLSCHAFT MBH,
(a.k.a. NDO)
(a.k.a. NORTH GERMAN OIL PIPELINE),
Moorburger Strasse 16, D-2000 Hamburg-Harburg 90, Germany,
Wilhelmshaven to Hamburg pipeline, Germany.
NORTH AFRICA COMMERCIAL BANK S.A.L.,
(f.k.a. ARAB LIBYAN TUNISIAN BANK S.A.L.),
P.O. Box 9575/11, 1st Floor, Piccadily Centre, Hamra Street, Beirut,
Lebanon.
OIL ENERGY FRANCE,
France.
OIL ENERGY SPAIN,
(a.k.a. OILINVEST SPAIN),
(a.k.a. OILINVEST ESPANOLA),
Spain.
OILINVEST,
(a.k.a. FOREIGN PETROLEUM INVESTMENT CORPORATION),
(a.k.a. LIBYAN OIL INVESTMENTS INTERNATIONAL COMPANY),
(a.k.a. OIIC),
(a.k.a. OILINVEST INTERNATIONAL N.V.),
Netherlands Antilles,
Tripoli, Libya.
OILINVEST (NETHERLANDS) B.V.,
(a.k.a. OILINVEST HOLLAND B.V.),
Museumpln 11, 1071 DJ Amsterdam, Netherlands.
OS OILINVEST SERVICES A.G.,
Loewenstrasse 60, Zurich, Switzerland.
PAK-LIBYAN HOLDING COMPANY LTD.,
Karachi, Pakistan.
QUALITY SHOES COMPANY,
UB33, Industrial Estate, San Gwann, Malta.
RAFFINERIE DU SUD-OUEST,
(a.k.a. RSO),
(a.k.a. COLLOMBEY REFINERY),
Collombey, Valais, Switzerland.
RAS LANUF OIL AND GAS PROCESSING COMPANY, LTD.
(a.k.a. RASCO),
P.O. Box 75071, Tripoli, Libya,
Ras Lanuf Complex and Terminal, Ghout El Shaal, Libya,
Benghazi Complex, P.O. Box 1971, Gamel Abdul Nasser Street, Benghazi,
Libya.
SAHARA BANK,
10 First September Street, P.O. Box 270, Tripoli, Libya,
(22 branches in Libya).
SIRM HOLDING S.R.L.,
Rome, Italy.
SIRTE OIL COMPANY,
(a.k.a. SIRTE OIL CO. FOR PRODUCTION, MANUFACTURING OF OIL & GAS,
MARSA EL BREGA),
P.O. Box 385, Tripoli, Libya,
P.O. Box 2582, Tripoli, Libya,
Benghazi, Libya,
Sirte Field, Libya,
Marsa El Brega, Libya.
SOCIETE AGRICOLE TOGOLAISE ARABE LIBYENNE,
Lome, Togo.
SOCIETE ARABE LIBYENNE MALIENNE POUR L'AGRICULTURE ET L'ELEVAGE,
(a.k.a. SOLIMA),
Bamako, Mali.
SOCIETE ARABE LIBYENNE MAURITANIENNE DES RESSOURCES MARITIMES,
(a.k.a. SALIMAUREM),
Nouadhibou, Mauritania.
SOCIETE ARABE LIBYENNE-CENTRAFRICAINE D'IMPORT-EXPORT
Bangui, Central African Republic.
SOCIETE ARABE LIBYO-GUINEENNE POUR LE DEVELOPPEMENT AGRICOLE ET
AGRO-INDUSTRIEL,
(a.k.a. SALGUIDIA),
Conakry, Guinea.
SOCIETE ARABE LIBYO-NIGERE POUR LE DEVELOPPEMENT ET LA
COMMERCIALISATION DES PRODUITS AGRICOLES,
Niamey, Niger.
SOCIETE ARABE LIBYO-TUNISIENNE DE TRANSPORT MARITIME,
Tunis, Tunisia.
SOCIETE D'ECONOMIE MIXTE CENTRE AFRICAINE LIBYENNE DES PRODUITS
AGRICOLES,
Bangui, Central African Republic.
SOCIETE LIBYENNE CENTRE AFRICAINE DES MINES,
Bangui, Central African Republic.
SOCIETE MIXTE RWANDO ARABE LIBYENNE POUR LE DEVELOPPEMENT ET LA
COMMERCIALISATION DES PRODUITS AGRICOLES ET D'ELEVAGE,
Kigali, Rwanda.
SOCIETE MIXTE RWANDO-ARABE LIBYENNE DE PROMOTION HOTELIERE ET
TOURISTIQUE AU RWANDA,
Kigali, Rwanda.
SOCIETE TOGOLAISE ARABE LIBYENNE DE PECHE,
Lome, Togo.
SWAN LAUNDRY AND DRY CLEANING COMPANY, LTD.,
55, Racecourse Street, Marsa, Malta.
SYRIAN LIBYAN COMPANY INDUSTRIAL & AGRICULTURAL INVESTMENTS,
(a.k.a. ARAB LIBYAN SYRIAN INDUSTRIAL & AGRICULTURAL INVESTMENT
COMPANY),
(a.k.a. SYLICO),
9 Mazze, Autostrade, Damascus, Syria.
TAMOIL HUNGARIA,
Hungary.
TAMOIL ITALIA S.P.A.,
Piazzetta Bossi 3, I-20121 Milan, Italy,
Cremona Refinery, Italy.
TAMOIL PETROLI ITALIANA S.P.A.,
Milan, Italy,
(1,977 gasoline retail outlets in Italy).
TAMOIL SUISSE S.A.,
(a.k.a. TAMOIL SWITZERLAND),
(f.k.a. GATOIL SUISSE S.A.),
Zug, Switzerland,
Geneva, Switzerland,
(330 gasoline retail outlets in Switzerland),
(RSO refinery in Collombey).
TAMOIL TRADING LTD.,
Monte Carlo, Monaco,
Zurich, Switzerland,
One, St. Paul's Churchyard, London EC4M 8SH, United Kingdom.
TEKNICA PETROLEUM SERVICES LIMITED
Suite 1100, 736 Sixth Avenue S.W., Calgary, Alberta T2P 3T7, Canada.
TEKXEL LIMITED,
(a.k.a. JAWABY TECHNICAL SERVICES LIMITED),
London, United Kingdom.
TURKISH-LIBYAN JOINT MARITIME TRANSPORT STOCK COMPANY,
(a.k.a. TURLIB),
Kemeralti Caddesi 99, 80020 Karakoy, Istanbul, Turkey.
UMM AL-JAWABY OIL SERVICE COMPANY, LTD.,
33 Cavendish Square, London W1M 9HF, United Kingdom.
UMM AL-JAWABY PETROLEUM CO. S.A.L.,
P.O. Box 693, Tripoli, Libya,
Nafoora Field, Libya.
UMMA BANK S.A.L.,
1 Giaddet Omar Mokhtar, P.O. Box 685, Tripoli, Libya,
(31 branches throughout Libya).
VEBA OIL OPERATIONS B.V.,
(a.k.a. VEBA OIL LIBYA GMBH),
(a.k.a. VEBA OIL LIBYAN BRANCH),
(f.k.a. MOBIL OIL LIBYA, LTD.),
P.O. Box 2357, Tripoli, Libya,
Al Magharba Street, P.O. Box 690, Tripoli, Libya,
The Hague, Netherlands,
(Designation applies only to joint venture located in Libya and
office located in the Netherlands).
VULCAN OIL S.P.A.,
Milano 2, Centro Direz. Pal. Canova, 20090 Segrate, Milan, Italy,
Delta Energy/ERG bunkering service, Genoa, Italy,
United Kingdom (offshore).
WAHA OIL COMPANY,
Inas Building, Omar El Mokhtar Street, Box 395, Tripoli, Libya,
P.O. Box 221, Benghazi, Libya,
Sidi Issa Street, P.O. Box 915, Tripoli, Libya,
P.O. Box 1075, Tripoli, Libya.
WAHDA BANK,
Jamal Abdulnasser Street, P.O. Box 452, Fadiel Abu Omar Square,
El-Berhka, Benghazi, Libya,
P.O. Box 1320, Benghazi, Libya,
P.O. Box 3427, Tripoli, Libya,
(37 branches throughout Libya).
ZUEITINA OIL COMPANY,
Zueitina Building ''A'', Sidi Issa, Dahra, P.O. Box 2134, Tripoli,
Libya,
Mitchell Cotts Building, P.O. Box 2134, Tripoli, Libya,
Plant at Intisar Field A, Tripoli, Libya,
Gas Processing Plants, Tripoli, Libya.
(57 FR 29425, July 1, 1992)
31 CFR 550.901 Pt. 550, App. B
31 CFR 550.901 Appendix B to Part 550 -- Individuals Determined To Be
Specially Designated Nationals of the Government of Libya
ABBOTT, John G.,
34 Grosvenor Street, London W1X 9FG, United Kingdom.
ABDULJAWAD, Muhammed I.,
(a.k.a. ABDUL JAWAD, Mohammed),
Tripoli, Libya.
AGHIL, Yousef I.,
Libya.
BUSHWESHA, Abdullah,
Libya.
CHARALAMBIDES, Kypros,
Cyprus.
EL BADRI, Abdullah Salim,
Tripoli, Libya.
EL GHRABLI, Abdudayem,
Libya.
EL HUWEIJ, Mohamed A.,
Tripoli, Libya.
FERJANI, A.S.A.,
Tripoli, Libya.
GHADAMSI, Bashir,
Italy.
LAYAS, Mohammed Hussein,
Tripoli, Libya.
MANA, Salem,
Libya,
Frankfurt, Germany.
NAAS, Mahmoud,
Libya.
PARADISSIOTIS, Christoforos Pavlou,
Larnaca, Cyprus,
34 Grosvenor Street, London W1X 9FG, United Kingdom.
RIECKE, Dr. Hans Guenter,
Hamburg, Germany.
SAUDI, Abdullah Ammar,
Manama, Bahrain.
SIALA, Mohamed Taher Hammuda,
Tripoli, Libya.
STAVROU, Stavros,
Cyprus.
UGUETO, Luis David (MOROS),
Cyprus.
YOUSEF, Mohamed T.,
Libya.
(57 FR 29427, July 1, 1992)
31 CFR 550.901 PART 555 -- SOVIET GOLD COIN REGULATIONS
31 CFR 550.901 Subpart A -- Relation of This Part to Other Laws and
Regulations
Sec.
555.101 Relation of this part to other laws and regulations.
31 CFR 550.901 Subpart B -- Prohibitions
555.201 Prohibition on the importation of Soviet gold coins.
555.202 Effective date.
555.203 Evasions.
31 CFR 550.901 Subpart C -- General Definitions
555.301 Gold coins.
555.302 United States.
555.303 Importation.
555.304 Person.
555.305 Entity.
31 CFR 550.901 Subpart D -- Interpretations
555.401 Reference to amended sections.
555.402 Effect of amendment of sections of this chapter or of other
orders, etc.
555.403 Gold coin jewelry.
31 CFR 550.901 Subpart E -- Licenses, Authorizations and Statements of
Licensing Policy
555.501 Effect of subsequent license or authorization.
555.502 Exclusion from licenses and authorizations.
555.503 Authorization of importation of Soviet gold coins.
31 CFR 550.901 Subpart F -- Reports
555.601 Required records.
555.602 Reports to be furnished on demand.
31 CFR 550.901 Subpart G -- Penalties
555.701 Penalties.
31 CFR 550.901 Subpart H -- Procedures
555.801 Licensing.
555.802 Decisions.
555.803 Amendment, modification, or revocation.
555.804 Rulemaking.
555.805 Delegation by the Secretary of the Treasury.
555.806 Rules governing availability of information.
31 CFR 550.901 Subpart I -- Paperwork Reduction Act
555.901 Paperwork Reduction Act notice.
Authority: Pub. L. 99-440, 100 Stat. 1086; Pub. L. 99-631; E.O.
12571, 51 FR 39505, October 29, 1986; Pub. L. 102-182, 105 Stat. 1234.
Source: 51 FR 41916, Nov. 19, 1986, unless otherwise noted.
31 CFR 550.901 Subpart A -- Relation of This Part to Other Laws and Regulations
31 CFR 555.101 Relation of this part to other laws and regulations.
(a) This part is independent of the other parts of this chapter. No
license or authorization contained in or issued pursuant to the other
parts of this chapter authorizes any transaction prohibited by this
part. In addition, licenses or authorizations contained in or issued
pursuant to any other provision of law or regulation do not authorize
any transaction prohibited by this part.
(b) No license or authorization contained in or issued pursuant to
this part relieves the involved parties from complying with any other
applicable laws or regulations.
31 CFR 555.101 Subpart B -- Prohibitions
31 CFR 555.201 Prohibition on the importation of Soviet gold coins.
No person, including a bank, may import into the United States any
gold coin minted in the Union of Soviet Socialist Republics or offered
for sale by the Government of the Union of Soviet Socialist Republics.
31 CFR 555.202 Effective date.
The effective date of the prohibition in 555.201 is 12:01 a.m.
Eastern Daylight Time, October 2, 1986.
31 CFR 555.203 Evasions.
The regulations set forth in this part shall apply to any person who
undertakes or causes to be undertaken any transaction or activity with
the intent to evade section 510 or related provisions of the
Comprehensive Anti-Apartheid Act of 1986, Pub. L. 99-440, or these
regulations.
31 CFR 555.203 Subpart C -- General Definitions
31 CFR 555.301 Gold coins.
The term gold coins includes gold coins of all denominations and
sizes, and gold coins that have been modified, as by addition of a clasp
or loop, into items that may be worn as jewelry.
31 CFR 555.302 United States.
The term United States includes the States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, and any territory
or possession of the United States.
31 CFR 555.303 Importation.
The term importation means the bringing of any item within the
jurisdictional limits of the United States with the intent to unlade it.
31 CFR 555.304 Person.
The term person means an individual or an entity.
31 CFR 555.305 Entity.
The term entity means a corporation, partnership, association, or
other organization.
31 CFR 555.305 Subpart D -- Interpretations
31 CFR 555.401 Reference to amended sections.
Reference to any section of this chapter or to any regulation,
ruling, order, instruction, direction or license issued pursuant to this
chapter shall be deemed to refer to the same as currently amended unless
otherwise so specified.
31 CFR 555.402 Effect of amendment of sections of this chapter or of
other orders, etc.
Any modification of this chapter or of any regulation, ruling, order,
instruction, direction or license issued by or under the direction of
the Secretary of the Treasury shall not, unless otherwise specifically
provided, be deemed to affect liability for any act performed or
omitted, or any civil or criminal proceeding commenced prior to such
modification, and all penalties, forfeitures, and liabilities under any
such regulation, ruling, order, instruction, direction or license shall
continue and may be enforced as if such modification had not been made.
31 CFR 555.403 Gold coin jewelry.
Section 555.201 prohibits the importation into the United States of
gold coins that have been modified, as by the addition of a clasp or
loop, into items that can be worn as jewelry. For example, importation
of a necklace consisting of a Soviet gold coin mounted on a chain would
not be authorized. Section 555.201 does not prohibit the reimportation
into the United States of gold coin jewelry which was originally
imported into the United States prior to October 2, 1986, provided that
(a) the importer can demonstrate the date of the prior importation to
the satisfaction of the Secretary of the Treasury or his delegate, and
(b) the jewelry to be reimported is in small quantities and for personal
use only.
31 CFR 555.403 Subpart E -- Licenses, Authorizations and Statements of Licensing Policy
31 CFR 555.501 Effect of subsequent license or authorization.
No license or other authorization contained in this chapter or
otherwise issued by or under the authority of the Secretary of the
Treasury shall be deemed to authorize or validate any transaction
effected prior to the issuance thereof unless such license or
authorization specifically so provides.
31 CFR 555.502 Exclusion from licenses and authorizations.
The Secretary of the Treasury reserves the right to exclude any
person or property from the operation of any license or to restrict the
applicability thereof to any person or property. Such action shall be
binding upon all persons receiving actual or constructive notice
thereof.
31 CFR 555.503 Authorization of importation of Soviet gold coins.
Notwithstanding the provisions of subpart B of this part,
transactions occurring on or after December 4, 1991, otherwise
prohibited by 555.201 and 555.203, are hereby authorized.
(57 FR 10291, Mar. 25, 1992)
31 CFR 555.503 Subpart F -- Reports
31 CFR 555.601 Required records.
Every person engaging in any act or transaction subject to this part
shall keep a full, complete, and accurate record relative to any such
act or transaction either before, during, or after the completion
thereof, including any transaction effected pursuant to license or
otherwise, and such records shall be available for examination for two
years after the date of such transaction.
31 CFR 555.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, at any time as may be required, complete
information relative to any act or transaction subject to this part,
regardless of whether such transaction is effected pursuant to license
or otherwise. Such reports may be required to include the production of
any books of account, contracts, letters, and other papers connected
with any transaction in the custody or control of the persons required
to make such reports. Reports with respect to transactions may be
required before, during or after such transactions are completed. The
Secretary of the Treasury may, through any person or agency, conduct
investigations, hold hearings, administer oaths, examine witnesses,
receive evidence, take depositions, and require by subpoena the
attendance and testimony of witnesses and the production of all books,
papers, and documents relating to any matter under investigation.
(Approved by the Office of Management and Budget under control number
1505-0095)
31 CFR 555.602 Subpart G -- Penalties
31 CFR 555.701 Penalties.
(a) Any person that violates the provisions of section 510 of the
Comprehensive Anti-Apartheid Act of 1986 (''the Act''), as implemented
by 555.201 of this part, related provisions of the Act, or any
regulation, license, or order issued to carry out such provisions shall
be subject to a civil penalty of $50,000.
(b) Any person, other than an individual, that willfully violates the
provisions of section 510 of the Act, as implemented by 555.201 of this
part, related provisions of the Act, or any regulation, license, or
order issued to carry out such provisions shall be fined not more than
$1,000,000.
(c) Any individual who willfully violates the provisions of 510 of
the Act, as implemented by 555.201 of this part, related provisions of
the Act, or any regulation, license, or order issued to carry out such
provisions shall be fined not more than $50,000, or imprisoned not more
than 10 years, or both.
(d) Whenever a person commits a violation as to which a penalty under
paragraphs (a), (b), or (c) of this section applies, (1) any officer,
director, or employee of such person, or any natural person in control
of such person who knowingly and willfully ordered, authorized,
acquiesced in, or carried out the act or practice constituting the
violation, and (2) any agent of such person who knowingly and willfully
carried out such act or practice, shall be fined not more than $10,000,
or imprisoned not more than 5 years, or both.
(e) A fine imposed under paragraph (b) of this section on an
individual for an act or practice constituting a violation may not be
paid, directly or indirectly, by the person committing the violation
itself.
(f) Any individual who violates section 510 of the Act, as
implemented by 555.201 of this part, related provisions of the Act, or
any regulations issued to carry out such provisions shall be fined not
more than five times the value of the gold coins involved.
(Comprehensive Anti-Apartheid Act of 1986, Pub. L. 99-440, secs.
510(b) and 603(b) and (c))
(g) Whoever, in any matter within the jurisdiction of any department
or agency of the United States knowingly and willfully falsifies,
conceals or covers up by any trick, scheme, or device a material fact,
or makes any false, fictitious or fraudulent statements or
representations, or makes or uses any false writing or document knowing
the same to contain any false, fictitious or fraudulent statement or
entry, shall be fined not more than $10,000, or such greater amount as
set forth in 18 U.S.C. 3623, or imprisoned not more than five years, or
both.
(18 U.S.C. 1001, 3623)
(h) Violations of this part may also be subject to relevant
provisions of the Customs laws and other applicable laws.
31 CFR 555.701 Subpart H -- Procedures
31 CFR 555.801 Licensing.
(a) General licenses. General licenses may be issued authorizing
under appropriate terms and conditions certain types of transactions
which are subject to the prohibitions contained in subpart B of this
part. All such licenses will be set forth in subpart E of this part.
It is the policy of the Office of Foreign Assets Control not to grant
applications for specific licenses authorizing transactions to which the
provisions of an outstanding general license are applicable. Persons
availing themselves of a general license may be required to file reports
and statements in accordance with the instructions specified in that
license.
(b) Specific licenses -- (1) General course of procedure.
Transactions subject to the prohibitions contained in subpart B of this
part that are not authorized by general license may be effected only
under specific licenses. The specific licensing activities of the
Office of Foreign Assets Control are performed by its Washington office
and by the Foreign Assets Control Division of the Federal Reserve Bank
of New York.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transaction prohibited under this part are to
be filed in duplicate with the Federal Reserve Bank of New York, Foreign
Assets Control Division, 33 Liberty Street, New York, NY 10045. Any
person having an interest in a transaction or proposed transaction may
file an application for a license authorizing such transaction, and
there is no requirement that any other person having an interest in such
transaction shall or should join in making or filing such application.
(3) Information to be supplied. The applicant must supply all
information specified by the respective forms and instructions. Such
documents as may be relevant shall be attached to each application
except that documents previously filed with the Office of Foreign Assets
Control may, where appropriate, be incorporated by reference.
Applicants may be required to furnish such further information as is
deemed necessary to a proper determination by the Office of Foreign
Assets Control. Failure to furnish necessary information will not be
excused because of any provision of the law of the Union of Soviet
Socialist Republics. If an applicant or other party in interest desires
to present additional information or discuss or argue the appIication,
he may do so at any time before or after decision. Arrangements for
oral presentation should be made with the Office of Foreign Assets
Control.
(4) Effect of denial. The denial of a license does not Preclude the
reopening of an application or the filing of a further application. The
applicant or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition of the issuance
of any license, the licensee may be required to file reports with
respect to the transaction covered by the license, in such form and at
such times and places as may be prescribed in the license or otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the Treasury
or by the Federal Reserve Bank of New York, acting in accordance with
such regulations, rulings, and instructions as the Secretary of the
Treasury or the Office of Foreign Assets Control may from time to time
prescribe, or licenses may be issued by the Secretary of the Treasury
acting directly or through a designated person, agency, or
instrumentality.
31 CFR 555.802 Decisions.
The Office of Foreign Assets Control or the Federal Reserve Bank of
New York will advise each applicant of the decision respecting filed
applications. The decision of the Office of Foreign Assets Control with
respect to an application shall constitute a final agency action.
31 CFR 555.803 Amendment, modification, or revocation.
The provisions of this part and any rulings, licenses,
authorizations, instructions, orders or forms issued hereunder may be
amended, modified, or revoked at any time.
31 CFR 555.804 Rulemaking.
(a) All rules and other public documents are issued by the Secretary
of the Treasury upon recommendation of the Director of the Office of
Foreign Assets Control. Except to the extent that there is involved any
military, naval, or foreign affairs function of the United States or any
matter relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts, and except when interpretive
rules, general statements of policy, or rules of agency organization,
practice, or procedure are involved, or when notice and public procedure
are impracticable, unnecessary, or contrary to the public interest,
interested persons will be afforded an opportunity to participate in
rulemaking through the submission of written data, views, or arguments,
with oral presentation in the discretion of the Director. In general,
rulemaking by the Office of Foreign Assets Control involves foreign
affairs functions of the United States. Wherever possible, however, it
is the practice to hold informal consultations with interested groups or
persons before the issuance of any rule or other public document.
(b) Any interested person may petition the Director of the Office of
Foreign Assets Control in writing for the issuance, amendment or
revocation of any rule.
31 CFR 555.805 Delegation by the Secretary of the Treasury.
Any action that the Secretary of the Treasury is authorized to take
with respect to the subject matter of this part may be taken by the
Director of the Office of Foreign Assets Control, or by any other person
to whom the Secretary of the Treasury has delegated authority so to act.
31 CFR 555.806 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control that are
required by 5 U.S.C. 552 to be made available to the public shall be
made available in accordance with the definitions, procedures, payment
of fees, and other provisions of the regulations on the disclosure of
records of the Office of the Secretary and of other bureaus and offices
of the Department issued under 5 U.S.C. 552 and published as part 1 of
this title 31 of the Code of Federal Regulations.
(b) Any form issued for use in connection with this part may be
obtained in person from or by writing to the Office of Foreign Assets
Control, Treasury Department, Washington, DC 20220, or the Foreign
Assets Control Division, Federal Reserve Bank of New York, 33 Liberty
Street, New York, NY 10045.
31 CFR 555.806 Subpart I -- Paperwork Reduction Act
31 CFR 555.901 Paperwork Reduction Act notice.
The information collection requirements in 555.601, 555.602, and
555.801 have been approved by the Office of Management and Budget and
assigned control number 1505-0095.
(57 FR 10291, Mar. 25, 1992)
31 CFR 555.901 PART 560 -- IRANIAN TRANSACTIONS REGULATIONS
31 CFR 555.901 Pt. 560
31 CFR 555.901 Subpart A -- Relation of this Part to Other Laws and
Regulations
Sec.
560.101 Relation of this part to other laws and regulations.
31 CFR 555.901 Subpart B -- Prohibitions
560.201 Prohibited importation of goods and services from Iran.
560.202 Prohibited related transactions.
560.203 Evasions.
31 CFR 555.901 Subpart C -- General Definitions
560.301 Effective date.
560.302 The Act.
560.303 Iran; Iranian.
560.304 Government of Iran.
560.305 Person.
560.306 Iranian origin goods and services.
560.307 United States.
560.308 Importation.
560.309 Publications.
560.310 License.
560.311 General license.
560.312 Specific license.
31 CFR 555.901 Subpart D -- Interpretations
560.401 Reference to amended sections.
560.402 Effect of amendment of sections of this part or of other
orders, etc.
560.403 Exports from Iran prior to the effective date.
560.404 Certain offshore transactions, and other transactions related
thereto.
560.405 Goods; technical data.
560.406 Transshipment through United States prohibited.
560.407 Importation from third countries; transshipment.
560.408 Importation into and release from a bonded warehouse or
foreign trade zone.
560.409 Documentary evidence of the location of Iranian carpets
located in third countries prior to the effective date.
31 CFR 555.901 Subpart E -- Licenses, Authorizations and Statements of
Licensing Policy
560.501 Effect of license or authorization.
560.502 Exclusion from licenses and authorizations.
560.503 Importation pursuant to prior contractual agreements.
560.504 Iranian goods in third countries prior to effective date.
560.505 Certain services relating to participation in various events
authorized.
560.506 Importation of certain gifts authorized.
560.507 Importation of accompanied baggage authorized.
560.508 Telecommunications and mail transactions authorized.
560.509 Certain services performed in Iran with respect to patents,
trademarks and copyrights.
560.510 Certain goods and services relating to legal proceedings.
560.511 Importation of goods awarded by the Hague Tribunal.
560.512 Certain imports for diplomatic or official personnel
authorized.
560.513 Importation of Iranian-origin oil.
560.514 Importation of household and personal effects authorized.
31 CFR 555.901 Subpart F -- Reports
560.601 Required records.
560.602 Reports to be furnished on demand.
31 CFR 555.901 Subpart G -- Penalties
560.701 Penalties.
560.702 Detention of shipments.
31 CFR 555.901 Subpart H -- Procedures
560.801 Licensing.
560.802 Decisions.
560.803 Amendment, modification, or revocation.
560.804 Rulemaking.
560.805 Delegation by the Secretary of the Treasury.
560.806 Customs procedures: goods specified in 560.201.
560.807 Rules governing availability of information.
31 CFR 555.901 Subpart I -- Paperwork Reduction Act
560.901 Paperwork Reduction Act Notice.
Authority: 22 U.S.C. 2349aa-9; E.O. 12613, 52 FR 41940, Oct. 30,
1987.
Source: 52 FR 44076, Nov. 17, 1987, unless otherwise noted.
31 CFR 555.901 Subpart A -- Relation of This Part to Other Laws and Regulations
31 CFR 560.101 Relation of this part to other laws and regulations.
(a) This part is separate from, and independent of, the other parts
of this chapter, including part 535, ''Iranian Assets Control
Regulations.'' No license or authorization contained in or issued
pursuant to those other parts authorizes any transaction prohibited by
this part. No license or authorization contained in or issued pursuant
to any other provision of law or regulations authorizes any transaction
prohibited by this part.
(b) No license or authorization contained in or issued pursuant to
this part relieves the involved parties from complying with any other
applicable laws or regulations.
31 CFR 560.101 Subpart B -- Prohibitions
31 CFR 560.201 Prohibited importation of goods and services from Iran.
Except as authorized by regulations, rulings, instructions, licenses,
or otherwise, no goods or services of Iranian origin may be imported
into the United States, with the following exceptions:
(a) Iranian-origin publications and materials imported for news
publications or news broadcast dissemination;
(b) Petroleum products refined from Iranian crude oil in a third
country; and
(c) Articles imported directly from Iran prior to the effective date.
31 CFR 560.202 Prohibited related transactions.
No person may order, buy, act as broker or facilitator for, receive,
conceal, store, use, sell, loan, dispose of, transfer, transport,
finance, forward, or otherwise service, in whole or in part, any goods
or services subject to the prohibitions of this part, with knowledge or
reason to know that a violation of this part, or any regulation, order,
or license issued pursuant hereto or to section 505 of the Act, has
occurred, is about to occur, or is intended to occur with respect to
such goods or services.
31 CFR 560.203 Evasions.
Any transaction for the purpose of, or which has the effect of,
evading or avoiding any of the prohibitions set forth in this subpart is
hereby prohibited.
31 CFR 560.203 Subpart C -- General Definitions
31 CFR 560.301 Effective date.
The term effective date means 12:01 p.m., Eastern Standard Time,
October 29, 1987.
31 CFR 560.302 The Act.
For purposes of this part, the term Act means the International
Security and Development Cooperation Act of 1985 (Pub. L. 99-83).
31 CFR 560.303 Iran; Iranian.
The term Iran means the country of Iran and any Iranian territory,
dependency, colony, protectorate, mandate, dominion, possession or place
subject to the jurisdiction thereof, or any territory which, at the time
of the relevant transaction, is controlled or occupied by the military,
naval or police forces or other authorities of Iran. The term Iranian
means pertaining to Iran as defined in this section.
31 CFR 560.304 Government of Iran.
(a) The Government of Iran includes:
(1) The state and the Government of Iran, as well as any political
subdivision, agency, or instrumentality thereof;
(2) Any partnership, association, corporation, or other organization
substantially owned or controlled by the foregoing;
(3) Any person to the extent that such person is, or has been, or to
the extent that there is reasonable cause to believe that such person
is, or has been, since the effective date acting or purporting to act
directly or indirectly on behalf of any of the foregoing.
31 CFR 560.305 Person.
The term person means an individual, partnership, association,
corporation or other organization.
31 CFR 560.306 Iranian origin goods and services.
The term goods or services of Iranian origin includes:
(a) Goods grown, produced, manufactured, extracted, or processed in
Iran;
(b) Goods which have entered into Iranian commerce; and
(c) Services performed in Iran or by the Government of Iran, as
defined in 560.304, where the benefit of such services will be received
in the United States. Services of Iranian origin are not imported into
the United States when such services are provided in the United States
by an Iranian national resident in the United States. The term services
of Iranian origin does not include:
(1) Diplomatic and consular services performed by or on behalf of the
Government of Iran, or
(2) Diplomatic and consular services performed by or on behalf of the
Government of the United States.
31 CFR 560.307 United States.
The term United States means the United States, including its
territories and possessions.
31 CFR 560.308 Importation.
The term importation means the bringing of any goods into the United
States, except that in the case of goods transported by vessel,
''importation'' shall mean the bringing of any goods into the United
States with the intent to unlade it.
31 CFR 560.309 Publications.
The term publications includes, but is not limited to, books,
newspapers, magazines, films, phonograph records, tape recordings,
photographs, microfilm, microfiche, videotapes, and posters, as well as
items described in the following:
(a) 15 CFR 399.1, Commodity Control List, Group 5, CCL No. 7599I:
microfilm that reproduces the content of certain publications, and
similar materials.
(b) 15 CFR 399.1, Commodity Control List, Group 9, CCL No. 7999I:
certain publications and related materials.
31 CFR 560.310 License.
Except as otherwise specified, the term license means any license or
authorization contained in or issued pursuant to this part.
31 CFR 560.311 General license.
The term general license means any license or authorization the terms
of which are set forth in this part.
31 CFR 560.312 Specific license.
The term specific license means any license or authorization not set
forth in this part but issued pursuant to this part in response to a
written application.
31 CFR 560.312 Subpart D -- Interpretations
31 CFR 560.401 Reference to amended sections.
Reference to any section of this part or to any regulation, ruling,
order, instruction, direction, or license issued pursuant to this part
shall be deemed to refer to the same as currently amended unless
otherwise so specified.
31 CFR 560.402 Effect of amendment of sections of this part or of other
orders, etc.
Any amendment, modification, or revocation of any section of this
part or of any order, regulation, ruling, instruction, or license issued
by or under the direction of the Secretary of the Treasury pursuant to
section 505 of the Act shall not, unless otherwise specifically
provided, be deemed to affect any act done or omitted to be done, or any
suit or proceeding had or commenced in any civil or criminal case prior
to such amendment, modification, or revocation. All penalties,
forfeitures, and liabilities under any such order, regulation, ruling,
instruction, or license shall continue and may be enforced as if such
amendment, modification, or revocation had not been made.
31 CFR 560.403 Exports from Iran prior to the effective date.
Goods may be imported pursuant to exception (c) in 560.201 if, prior
to the effective date, the goods were loaded on board a vessel or
aircraft in Iran or a third country ready for export to the United
States, or were in transit from Iran or a third country for direct
importation into the United States.
31 CFR 560.404 Certain offshore transactions and other transactions
related thereto.
The prohibitions contained in 560.201 do not apply to the
importation into locations outside the United States of goods or
services of Iranian origin. The prohibitions also do not extend to
payments or other transactions, wherever concluded, by any person
relating to such transactions outside the United States, such as U.S.
financial, service, or brokerage transactions involving offshore
transactions with Iran. Payments relating to such non-prohibited
transactions, and payments relating to the exceptions designated in
560.201, are not prohibited.
31 CFR 560.405 Goods; technical data.
The term ''goods'' shall include merchandise; articles; and
technical data in tangible form including, but not limited to, a model,
prototype, blueprint, drawing, operating manual, computer software, tape
recording, microfiche, or other material in machine readable form. The
term ''goods'' does not apply to oral transmission of technical data in
the course of performance of services, telephone communications,
lectures, seminars, or plant visits.
31 CFR 560.406 Transshipment through United States prohibited.
The prohibitions in 560.201 apply to the importation into the United
States, for transshipment or transit, of goods of Iranian origin which
are intended or destined for third countries.
31 CFR 560.407 Importation from third countries; transshipment.
(a) Importation into the United States from third countries of goods
containing raw materials or components of Iranian origin is not
prohibited if those raw materials or components have been incorporated
into manufactured products or substantially transformed in a third
country.
(b) Importation into the United States of goods of Iranian origin
that have been transshipped through a third country without being
incorporated into manufactured products or substantially transformed in
a third country is prohibited.
31 CFR 560.408 Importation into and release from a bonded warehouse or
foreign trade zone.
The prohibitions in 560.201 apply to importation into a bonded
warehouse or a foreign trade zone of the United States. However,
560.201 does not prohibit the release from a bonded warehouse or a
foreign trade zone of goods of Iranian origin imported into a bonded
warehouse or a foreign trade zone prior to the effective date.
31 CFR 560.409 Documentary evidence of the location of Iranian carpets
located in third countries prior to the effective date.
(a) Section 560.504 states that specific licenses will be issued to
import non-fungible goods of Iranian origin, including carpets, upon
submission of satisfactory documentary proof that the goods were located
outside Iran prior to the effective date and that no financial benefit
will accrue to Iran after the effective date. Section 560.504(c)
identifies documents that may serve to satisfy the requirements of this
section. Documents submitted must specifically identify the particular
item to be imported.
(b) Because of the similarity of carpets of commercial grade,
commercial documents which contain only a generic description of a
carpet, such as size and style or region of manufacture (e.g., 2.05m.
1.05m., Tabriz) generally will be insufficient to satisfy the
documentary requirement. Documents intended to prove that a particular
carpet has been located outside of Iran since the effective date must
identify the carpet and its location outside Iran since the effective
date with sufficient particularity to eliminate the possibility of
substitution by another carpet that would not be eligible for
importation. Accordingly, transportation documents, invoices, inventory
lists, or warehouse receipts that provide only general descriptions will
not be considered to provide sufficient assurance that a particular
carpet has been located outside of Iran since the effective date to
justify issuance of a specific license for importation.
(56 FR 61373, Dec. 3, 1991)
31 CFR 560.409 Subpart E -- Licenses, Authorizations, and Statements of Licensing Policy
31 CFR 560.501 Effect of license or authorization.
(a) No license or other authorization contained in this part, or
otherwise issued by or under the direction of the Secretary of the
Treasury pursuant to section 505 of the Act, shall be deemed to
authorize or validate any transaction effected prior to the issuance of
the license, unless specifically provided in such license or other
authorization.
(b) No regulation, ruling, instruction, or license authorizes a
transaction prohibited under this part unless the regulation, ruling,
instruction, or license is issued by the Treasury Department and
specifically refers to this part. No regulation, ruling, instruction,
or license referring to this part shall be deemed to authorize any
transactions prohibited by any provision of this chapter unless the
regulation, ruling, instruction or license specifically refers to such
provision.
(c) Any regulation, ruling, instruction or license authorizing a
transaction otherwise prohibited under this part has the effect of
removing a prohibition or prohibitions in Subpart B from the
transaction, but only to the extent specifically stated by its terms.
Unless the regulation, ruling, instruction or license otherwise
specifies, such an authorization does not create any right, duty,
obligation, claim, or interest in, or with respect to, any property
which would not otherwise exist under ordinary principles of law.
31 CFR 560.502 Exclusion from licenses and authorizations.
The Secretary of the Treasury reserves the right to exclude any
person from the operation of any license, or from the privileges therein
conferred, or to restrict the applicability thereof with respect to
particular persons, transactions or property or classes thereof. Such
action shall be binding upon all persons receiving actual or
constructive notice thereof.
31 CFR 560.503 Importation pursuant to prior contractual agreements.
Specific licenses may be issued, on a case-by-case basis, authorizing
the importation of goods of Iranian origin into the United States after
the effective date and before January 1, 1988, if the importer furnishes
the Office with a certification supported by written evidence
establishing that --
(a) Payment for the goods was made, or payment was irrevocably
committed to be made, prior to the effective date, or
(b) A written agreement to purchase the goods was entered into prior
to the effective date; and
(c) Prior to the effective date, the goods were intended for
importation into the United States.
31 CFR 560.504 Iranian goods in third countries prior to effective
date.
(a) Specific licenses may be issued authorizing the importation of
non-fungible goods of Iranian origin, such as carpets and artwork,
provided the applicant submits satisfactory documentary proof that the
goods are located outside Iran prior to the effective date and that no
payment or other benefit has accrued or will accrue to Iran after the
effective date. For purposes of this section, a payment or other
benefit to Iran includes a payment or other economic benefit accruing to
the Government of Iran or to a person or persons residing or located in
Iran.
(b) Fungible goods of Iranian origin, such as oil and agricultural
products, may qualify for importation after the effective date only
under the provisions of 560.201 and 560.503.
(c) The type of documentation that would constitute satisfactory
proof of the location of non-fungible goods outside Iran as of the
effective date may vary depending upon the facts of a particular case.
However, independent corroborating documentary evidence issued and
certified by a disinterested party will be required. This might include
contracts, insurance documents, shipping documents, warehouse receipts,
and appropriate customs documents, accompanied by a certification of an
insurance agent, warehouse agent, or other appropriate person,
identifying with particularity the goods sought to be imported and
attesting that the goods concerned were located outside Iran at a time
prior to the effective date. In general, affidavits, statements, and
other documents prepared by the applicant or another interested party
will not, by themselves, constitute satisfactory proof.
Example: A Persian carpet stored in a warehouse in Europe since
January 1986, and purchased by a U.S. resident in November 1987, may be
licensed for importation into the United States if the importer
provides, for example, (1) a warehouse receipt dated prior to the
effective date, and a certification from the warehouse that the carpet
sought to be imported is the same carpet that was in storage,
identifying such characteristics as predominant colors and design by
description or photograph; and (2) insurance documents dated prior to
the effective date and containing sufficient information to identify the
specific carpet insured in a location outside Iran.
31 CFR 560.505 Certain services relating to participation in various
events authorized.
The importation of services of Iranian origin into the United States
is authorized where an Iranian national enters the United States on a
visa issued by the State Department for the purpose of participating in
a public conference, performance, exhibition or similar event.
31 CFR 560.506 Importation of certain gifts authorized.
The importation into the United States is authorized for goods of
Iranian origin sent as gifts to persons in the United States where the
value of the gift is not more than $100.
31 CFR 560.507 Importation of accompanied baggage authorized.
Persons entering the United States directly or indirectly from Iran
are authorized to import into the United States Iranian-origin
accompanied baggage normally incident to travel. This authorization
does not extend to Iranian-origin goods the value of which exceeds the
personal exemption from Customs duty, currently at $400 per individual,
or for Iranian-origin goods brought to the United States from third
countries as accompanied baggage.
Example: Under this section, a U.S. resident returning from Iran may
import personal effects acquired in Iran such as clothing and small
purchases, provided their value is below the personal exemption amount,
currently $400. A U.S. tourist returning from a vacation in Canada with
a Persian carpet purchased there is not eligible for the general license
in this section, as the individual would not be entering the United
States directly or indirectly from Iran. In the latter case, the carpet
could be imported only under a specific license issued pursuant to
another section, such as 560.503 or 560.504.
31 CFR 560.508 Telecommunications and mail transactions authorized.
All transactions of common carriers incident to the receipt or
transmission of telecommunications and mail between the United States
and Iran are authorized. For purposes of this section, the term
''mail'' shall include parcels only to the extent the parcels contain
goods excepted from these Regulations or otherwise eligible for
importation from Iran under a general or specific license.
31 CFR 560.509 Certain services performed in Iran with respect to
patents, trademarks and copyrights.
(a) All transactions incident to the following services rendered by a
resident of Iran to or on behalf of a U.S. person are hereby authorized:
(1) The filing and prosecution of any application in Iran to obtain a
patent, trademark, copyright or other form of intellectual property
protection.
(2) The receipt of an Iranian patent, trademark, copyright or other
form of intellectual property protection.
(3) The renewal of maintenance of a patent, trademark, copyright or
other form of intellectual property protection in Iran.
(4) The filing and prosecution of opposition or infringement
proceedings in Iran with respect to a patent, trademark, copyright or
other form of intellectual property protection; or the entrance of a
defense to any such proceedings.
(b) Nothing in this section affects obligations under any other
provision of law.
31 CFR 560.510 Certain goods and services relating to legal
proceedings.
All transactions are authorized pertaining to the importation of
goods and services necessary for the conduct of legal proceedings,
including administrative, judicial, and arbitral proceedings.
31 CFR 560.511 Importation of goods awarded by the Hague Tribunal.
(a) Specific licenses will be issued on a case-by-case basis to
permit the importation of goods of Iranian origin in connection with
awards, decisons, or orders of the Iran-United States Claims Tribunal in
the Hague, established pursuant to the Algiers Accords of January 19,
1981.
(b) Specific licenses may be issued on a case-by-case basis to permit
the importation of Iranian origin goods in connection with agreements
settling claims brought before the Iran-United States Claims Tribunal.
31 CFR 560.512 Certain imports for diplomatic or official personnel
authorized.
All transactions ordinarily incident to the importation of any goods
or services into the United States from Iran are authorized if such
imports are destined for official or personal use by personnel employed
by Iranian missions to international organizations located in the United
States, and such imports are not for resale.
31 CFR 560.513 Importation of Iranian-origin oil.
(a) Specific licenses will be issued on a case-by-case basis to
permit the importation of Iranian-origin oil in connection with the
resolution or settlement of cases before the Iran-United States Claims
Tribunal in The Hague, established pursuant to the Algiers Accords of
January 19, 1981, or where the proceeds are otherwise to be deposited in
the Tribunal's Security Account.
(b) License applications submitted pursuant to this section must
contain the importer's certification that the oil is of Iranian origin
with all relevant supporting documentation, including specification of
the production site at which the oil was extracted, and that the sale or
transfer of the oil is by or for the account of the Government of Iran.
Licenses will not be issued for importations of Iranian-origin oil which
is not sold or transferred by or for the account of the Government of
Iran. In cases where the oil is being imported either in whole or in
part in resolution or settlement of a case pending before the Tribunal,
applicants are required to identify the case and submit a copy of the
settlement agreement and the Award on Agreed Terms issued by the
Tribunal. In cases where any proceeds are generated, for the account of
the Government of Iran from the importation of Iranian-origin oil, the
importer must demonstrate that irrevocable arrangements are in place
that will ensure that the proceeds will be deposited in the Security
Account at The Hague.
(56 FR 11100, Mar. 15, 1991)
31 CFR 560.514 Importation of household and personal effects
authorized.
(a) Except as provided in paragraph (b) of this section, the
importation of Iranian-origin goods within the description of household
and personal effects under the Harmonized Tariff Schedule of the United
States (1991), subheadings 9804.00.05 and 9804.00.20, by persons
arriving in the United States from a foreign country is authorized.
(b) This section authorizes the importation of no more than five
Iranian-origin carpets, rugs, or similar articles such as tapestries or
wallhangings. If a greater number of such items is to be imported, none
may be imported without a specific license issued pursuant to this part.
(56 FR 61374, Dec. 3, 1991)
31 CFR 560.514 Subpart F -- Reports
31 CFR 560.601 Required records.
Every person engaging in any transaction subject to the provisons of
this part shall keep a full and accurate record of each transaction in
which he engages, regardless of whether such transaction is effected
pursuant to license or otherwise, and such record shall be available for
examination for at least two years after the date of such transaction.
31 CFR 560.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, from time to time and at any time as may be
required, complete information relative to any transaction, regardless
of whether such transaction is effected pursuant to license or
otherwise, subject to the provisions of this part. Such reports may be
required to include the production of any books of account, contracts,
letters or other papers, connected with any such transaction or
property, in the custody of control of the persons required to make such
reports. Reports with respect to transactions may be required either
before or after such transactions are completed. The Secretary of the
Treasury may, through any person or agency, conduct investigations, hold
hearings, administers oaths, examine witnesses, receive evidence, take
depositions, and require by subpoena the attendance and testimony of
witnesses and the production of all books, papers, and documents
relating to any matter under investigation, regardless of whether any
report has been required or filed in connection therewith.
31 CFR 560.602 Subpart G -- Penalties
31 CFR 560.701 Penalties.
(a) Attention is directed to 18 U.S.C. 545, which provides:
Whoever knowingly and willfully, with intent to defraud the United
States, smuggles, or clandestinely introduces into the United States any
merchandise which should have been invoiced, or makes out or passes, or
attempts to pass, through the customhouse any false, forged, or
fraudulent invoice, or other document or paper; or
Whoever fraudulently or knowingly imports or brings into the United
States, any merchandise contrary to law, or receives, conceals, buys,
sells, or in any manner facilitates the transportation, concealment, or
sale of such merchandise after importation, knowing the same to have
been imported or brought into the United States contrary to law --
Shall be fined not more that $10,000 or imprisoned not more than five
years, or both.
Proof of defendant's possession of such goods, unless explained to
the satisfaction of the jury, shall be deemed evidence sufficient to
authorize conviction for violation of this section.
Merchandise introduced into the United States in violation of this
section, or the value thereof, to be recovered from any person described
in the first or second paragraph of this section, shall be forfeited to
the United States.
(b) Attention is directed to 18 U.S.C. 1001, which provides:
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representation or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
(c) Attention is directed to 19 U.S.C. 1592, which provides, in part:
(a) Prohibition. --
(1) General rule. -- Without regard to whether the United States is
or may be deprived of all or a portion of any lawful duty thereby, no
person, by fraud, gross negligence, or negligence --
(A) may enter, introduce, or attempt to enter or introduce any
merchandise into the commerce of the United States by means of --
(i) any document, written or oral statement, or act which is material
and false, or
(ii) any omission which is material, or
(B) may aid or abet any other person to violate subparagraph (A) * *
*.
(c) Maximum penalties. --
(1) Fraud. -- A fraudulent violation of subsection (a) of this
section is punishable by a civil penalty in an amount not to exceed the
domestic value of the merchandise.
(2) Gross negligence. -- A grossly negligent violation of subsection
(a) of this section is punishable by a civil penalty in an amount not to
exceed --
(A) the lesser of --
(i) the domestic value of the merchandise, or
(ii) four times the lawful duties of which the United States is or
may be deprived, or
(B) if the violation did not affect the assessment of duties, 40
percent of the dutiable value of the merchandise.
(3) Negligence. -- A negligent violation of subsection (a) of this
section is punishable by a civil penalty in an amount not to exceed --
(A) the lesser of --
(i) the domestic value of the merchandise, or
(ii) two times the lawful duties of which the United States is or may
be deprived, or
(B) if the violation did not affect the assessment of duties, 20
percent of the dutiable value of the merchandise.
(d) Attention is also directed to 19 U.S.C. 1595a, which provides:
(a) * * * (E)very vessel, vehicle, animal, aircraft, or other thing
used in, to aid in, or to facilitate, by obtaining information or in any
other way, the importation, bringing in, unloading, landing, removal,
concealing, harboring, or subsequent transportation of any article which
is being or has been introduced, or attempted to be introduced, into the
United States contrary to law, whether upon such vessel, vehicle,
animal, aircraft or other thing or otherwise, may be seized and
forfeited together with its tackle, apparel, furniture, harness, or
equipment.
(b) Every person who directs, assists financially or otherwise, or is
in any way concerned in any unlawful activity mentioned in the preceding
subsection shall be liable to a penalty equal to the value of the
article or articles introduced or attempted to be introduced.
(c) Any merchandise that is introduced or attempted to be introduced
into the United States contrary to law (other than in violation of
section 1592 of this title) may be seized and forfeited.
31 CFR 560.702 Detention of shipments.
Import shipments into the United States of goods of Iranian origin in
violation of 560.201 shall be detained. No such import shall be
permitted to proceed, except as specifically authorized by the Secretary
of the Treasury. Such shipments shall be subject to licensing,
penalties, or seizure and forfeiture action, under the Customs laws or
other applicable provisions of law, depending on the circumstances.
31 CFR 560.702 Subpart H -- Procedures
31 CFR 560.801 Licensing.
(a) General licenses. General licenses have been issued authorizing
under appropriate terms and conditions certain types of transactions
which are subject to the prohibitions contained in subpart B of this
part. All such licenses are set forth in subpart E of this part. It is
the policy of the Office of Foreign Assets Control not to grant
applications for specific licenses authorizing transactions to which the
provisions of an outstanding general license are applicable. Persons
availing themselves of certain general licenses may be required to file
reports and statements in accordance with the instructions specified in
those licenses.
(b) Specific licenses -- (1) General course of procedure.
Transactions subject to the prohibitions contained in subpart B of this
part which are not authorized by general license may be effected only
under specific licenses.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transactions prohibited by or pursuant to this
part may be filed by letter with the Office of Foreign Assets Control.
Any person having an interest in a transaction or proposed transaction
may file an application for a license authorizing such transaction, but
the applicant for a specific license is required to make full disclosure
of all parties in interest to the transaction so that a decision on the
application may be made with full knowledge of all relevant facts and so
that the identity and location of the persons who know about the
transaction may be easily ascertained in the event of inquiry.
(3) Information to be supplied. The applicant must supply all
information specified by relevant instructions, and must fully disclose
the names of all the parties who are concerned with or interested in the
proposed transaction. If the application is filed by an agent, the
agent must disclose the name of his principal(s). Such documents as may
be relevant shall be attached to each application as a part of such
application except that documents previously filed with the Office of
Foreign Assets Control may, where appropriate, be incorporated by
reference. Applicants may be required to furnish such further
information as is deemed necessary to a proper determination by the
Office of Foreign Assets Control. Any applicant or other party in
interest desiring to present additional information concerning the
application may do so at any time. Arrangements for oral presentation
may be made with the Office of Foreign Assets Control.
(4) Effect of denial. The denial of a license does not preclude the
reopening of an application or the filing of a further application. The
applicant or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition upon the
issuance of any license, the licensee may be required to file reports
with respect to the transaction covered by the license, in such form and
at such times and places as may be prescribed in the license or
otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the
Treasury, acting in accordance with such regulations, rulings and
instructions as the Secretary of the Treasury or the Office of Foreign
Assets Control may from time to time prescribe, or licenses may be
issued by the Secretary of the Treasury acting directly or through any
specifically designated person, agency, or instrumentality.
(c) Address. License applications, reports, and inquiries should be
addressed to the appropriate section or individual within the Office of
Foreign Assets Control, or to its Director, at the following address:
Office of Foreign Assets Control, U.S. Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220.
(52 FR 44076, Nov. 17, 1987, as amended at 57 FR 1390, Jan. 14, 1992)
31 CFR 560.802 Decisions.
The Office of Foreign Assets Control will advise each applicant of
the decision respecting filed applications. The decision of the Office
of Foreign Assets Control acting on behalf of the Secretary of the
Treasury with respect to an application shall constitute final agency
action.
(52 FR 44076, Nov. 17, 1987, as amended at 57 FR 1390, Jan. 14, 1992)
31 CFR 560.803 Amendment, modification, or revocation.
The provisions of this part and any rulings; licenses, whether
general or specific; authorizations; instructions; orders; or forms
issued hereunder may be amended, modified, or revoked at any time.
31 CFR 560.804 Rulemaking.
(a) All rules and other public documents are issued by the Secretary
of the Treasury upon recommendation of the Director of the Office of
Foreign Assets Control. In general, rulemaking by the Office of Foreign
Assets Control involves foreign affairs functions of the United States,
and for that reason is exempt from the requirements under the
Administrative Procedure Act (5 U.S.C. 553) for notice of proposed
rulemaking, opportunity for public comment, and delay in effective date.
Wherever possible, however, it is the practice of the Office of Foreign
Assets Control to receive written submissions or hold informal
consultations with interested parties before the issuance of any rule or
other public document.
(b) Any interested person may petition the Director of the Office of
Foreign Assets Control in writing for the issuance, amendment, or repeal
of any rule.
31 CFR 560.805 Delegation by the Secretary of the Treasury.
Any action which the Secretary of the Treasury is authorized to take
pursuant to Executive Order No. 12613 or section 505 of the Act may be
taken by the Director, Office of Foreign Assets Control, or by any other
person to whom the Secretary of the Treasury has delegated authority so
to act.
31 CFR 560.806 Customs procedures: Goods specified in 560.201.
(a) With respect to goods specified in 560.201, and not otherwise
licensed or excepted from the scope of that section, appropriate Customs
officers shall not accept or allow any:
(1) Entry for consumption or warehouse (including any appraisement
entry, any entry of goods imported in the mails, regardless of value,
and any informal entries);
(2) Entry for immediate exportation;
(3) Entry for transportation and exportation;
(4) Withdrawal from warehouse;
(5) Admission, entry, transfer or withdrawal to or from a foreign
trade zone; or
(6) Manipulation or manufacture in a warehouse or in a foreign trade
zone.
(b) Customs officers shall accept or allow the importation of
Iranian-origin goods under the procedures listed in subsection (a) if:
(1) The merchandise was imported prior to 12:01 p.m., October 29,
1987,
(2) A specific license pursuant to this part is presented, or
(3) Instructions authorizing the transaction are received from the
Office of Foreign Assets Control.
(c) Whenever a specific license is presented to an appropriate
Customs officer in accordance with this section, one additional legible
copy of the entry, withdrawal or other appropriate document with respect
to the merchandise involved shall be filed with the appropriate Customs
officers at the port where the transaction is to take place. Each copy
of any such entry, withdrawal or other appropriate document, including
the additional copy, shall bear plainly on its face the number of the
license pursuant to which it is filed. The orignial copy of the
specific license shall be presented to the appropriate Customs officers
in respect of each such transaction and shall bear a notation in ink by
the licensee or person presenting the license showing the description,
quantity and value of the merchandise to be entered, withdrawn or
otherwise dealt with. This notation shall be so placed and so written
that there will exist no possibility of confusing it with anything
placed on the license at the time of its issuance. If the license in
fact authorizes the entry, withdrawal, or other transaction with regard
to the merchandise, the appropriate Customs officer, or other authorized
Customs employee, shall verify the notation by signing or initialing it
after first assuring himself that it accurately describes the
merchandise it purports to represent. The license shall thereafter be
returned to the person presenting it and the additional copy of the
entry, withdrawal or other appropriate document shall be forwarded by
the appropriate Customs officer to the Office of Foreign Assets Control.
(d) If it is unclear whether an entry, withdrawal or other action
affected by this section requires a specific Foreign Assets Control
license, the appropriate Customs officer shall withhold any action
thereon and shall advise such person to communicate directly with the
Office of Foreign Assets Control, to request that instructions be sent
to the Customs officer to authorize him to take action with regard
thereto.
(52 FR 44076, Nov. 17, 1987, as amended at 57 FR 1390, 1391, Jan.
14, 1992)
31 CFR 560.807 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control required by
the Freedom of Information Act (5 U.S.C. 552) to be made available to
the public shall be made available in accordance with the definitions,
procedures, requirements for payment of fees, and other provisions of
the Regulations on the Disclosure of Records of the Departmental Offices
and of other bureaus and offices of the Department of Treasury issued
under 5 U.S.C. 552 and published in part 1 of this title.
(b) The records of the Office of Foreign Assets Control required by
the Privacy Act (5 U.S.C. 552a) to be made available to an individual
shall be made available in accordance with the definitions, procedures,
requirements for payment of fees, and other provisions of the
Regulations on Disclosure of Records of the Departmental Offices and of
other bureaus and offices of the Department of the Treasury issued under
5 U.S.C. 552a and published in part 1 of this title.
(c) Any form used in connection with the Iranian Transaction
Regulations may be obtained in person from or by writing to the Office
of Foreign Assets Control, U.S. Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220.
(57 FR 1391, Jan. 14, 1992)
31 CFR 560.807 Subpart I -- Paperwork Reduction Act
31 CFR 560.901 Paperwork Reduction Act Notice.
The information collection requirements in 560.601, 560.602, and
560.801 have been approved by the Office of Management and Budget and
assigned control number 1505-0106.
(53 FR 37556, Sept. 27, 1988)
31 CFR 560.901 PART 565 -- PANAMANIAN TRANSACTIONS REGULATIONS
31 CFR 560.901 Pt. 565
31 CFR 560.901 Subpart A -- Relation of this Part to Other Laws and
Regulations
Sec.
565.101 Relation of this part to other laws and regulations.
31 CFR 560.901 Subpart B -- Prohibitions
565.201 Prohibited transactions involving property in which the
Government of Panama has an interest; transactions with respect to
securities.
565.202 Prohibited payments or transfers from the United States to
the Noriega/Solis regime.
565.203 Prohibited payments or transfers to the Noriega/Solis regime
by U.S. persons located in Panama and by certain juridical entities.
565.204 Effect of transfers violating the provisions of this part.
565.205 Holding of certain types of blocked property in
interest-bearing accounts.
565.206 Evasions.
31 CFR 560.901 Subpart C -- General Definitions
565.301 Effective date.
565.302 Panama.
565.303 Government of Panama.
565.304 Noriega/Solis regime.
565.305 Entity.
565.306 United States.
565.307 United States person.
565.308 Transfer.
565.309 Property; property interests.
565.310 Credits.
565.311 Domestic financial institution.
565.312 Interest.
565.313 Blocked account; blocked property.
565.314 Interbank clearing payments.
565.315 License.
565.316 General license.
565.317 Specific license.
31 CFR 560.901 Subpart D -- Interpretations
565.401 Reference to amended sections.
565.402 Effect of amendment of sections of this part or of other
orders, etc.
565.403 Termination and acquisition of an interest of the Government
of Panama.
565.404 Payments to the Noriega/Solis regime prohibited; procedures
for making payments to the Federal Reserve Bank of New York.
565.405 Blocking not applicable to U.S. persons outside the United
States.
565.406 Indirect payments to the Noriega/Solis regime; payments by
subsidiaries in third countries.
565.407 Clarification of interbank clearing payments.
565.408 Setoffs prohibited.
565.409 Payments in kind.
565.410 Transfers not prohibited with respect to the recognized
Government of Panama.
31 CFR 560.901 Subpart E -- Licenses, Authorizations, and Statements of
Licensing Policy
565.501 Effect of license or authorization.
565.502 Exclusion from licenses and authorizations.
565.503 Certain payments authorized.
565.504 Certain payments by individuals authorized.
565.505 Travel-related payments authorized.
565.506 Telecommunications and mail transactions authorized.
565.507 Payments and transfers related to purchase and sale of
publications authorized.
565.508 Payment by the Noriega/Solis regime of obligations to persons
within the United States.
565.509 Reserve accounts.
565.510 Authorization of new transactions concerning certain
Panamanian property.
565.511 Transfer of funds credited to 565.509 blocked reserve
accounts.
31 CFR 560.901 Subpart F -- Reports
565.601 Required records.
565.602 Reports to be furnished on demand.
31 CFR 560.901 Subpart G -- Penalties
565.701 Penalties.
565.702 Prepenalty notice.
565.703 Presentation responding to prepenalty notice.
565.704 Penalty notice.
565.705 Referral to United States Department of Justice.
31 CFR 560.901 Subpart H -- Procedures
565.801 Licensing.
565.802 Decisions.
565.803 Amendment, modification, or revocation.
565.804 Rulemaking.
565.805 Delegation by the Secretary of the Treasury.
565.806 Rules governing availability of information.
31 CFR 560.901 Subpart I -- Paperwork Reduction Act
565.901 Paperwork Reduction Act Notice.
Appendix A to Part 565 -- Panamanian Governmental Entities
Appendix B to Part 565 -- Persons and Organizations Acting on Behalf
of the Noriega/Solis Regime
Authority: 50 U.S.C. 1701 et seq. , E.O. 12635, 53 FR 12134, Apr.
12, 1988.
Source: 53 FR 20566, June 3, 1988, unless otherwise noted.
31 CFR 560.901 Subpart A -- Relation of This Part to Other Laws and Regulations
31 CFR 565.101 Relation of this part to other laws and regulations.
(a) This part is separate from, and independent of, the other parts
of this chapter. No license or authorization contained in or issued
pursuant to those other parts authorizes any transaction prohibited by
this part. No license or authorization contained in or issued pursuant
to any other provision of law or regulations authorizes any transaction
prohibited by this part.
(b) No license or authorization contained in or issued pursuant to
this part relieves the involved parties from complying with any other
applicable laws or regulations.
31 CFR 565.101 Subpart B -- Prohibitions
31 CFR 565.201 Prohibited transactions involving property in which the
Government of Panama has an interest; transactions with respect to
securities.
(a) Except as authorized by regulations, rulings, instructions,
licenses, or otherwise, no property or interests in property of the
Government of Panama that are in the United States, that hereafter come
within the United States, or that are or hereafter come within the
possession or control of persons located in the United States, may be
transferred, paid, exported, withdrawn or otherwise dealt in.
(b) Unless authorized by a license expressly referring to this
section, the acquisition, transfer (including the transfer on the books
of any issuer or agent thereof), disposition, transportation,
importation, exportation, or withdrawl of, or the endorsement or
guaranty of signatures on, or otherwise dealing in any security (or
evidence thereof) registered or inscribed in the name of the Government
of Panama is prohibited irrespective of the fact that at any time
(either prior to, on, or subsequent to 4:00 p.m. e.d.t., April 8, 1988)
the registered or inscribed owner thereof may have, or appears to have,
assigned, transferred, or otherwise disposed of any such security.
31 CFR 565.202 Prohibited payments or transfers from the United States
to the Noriega/Solis regime.
Except as authorized by regulations, rulings, instructions, licenses,
or otherwise, no direct or indirect payments or transfers may be made
from the United States to the Noriega/Solis regime of funds, including
currency, cash or coins of any nation, or other financial or investment
assets or credits, except for interbank clearing payments. All
transfers or payments to the Government of Panama shall be made into an
account at the Federal Reserve Bank of New York, as provided in
565.404.
31 CFR 565.203 Prohibited payments or transfers to the Noriega/Solis
regime by U.S. persons located in Panama and by certain juridical
entities.
Except as authorized by regulations, rulings, instructions, licenses,
or otherwise, no direct or indirect payments or transfers may be made to
the Noreiga/Solis regime of funds, including currency, cash or coins of
any nation, or of other financial or investment assets or credits, by
any United States person located in the territory of Panama, or by any
person organized under the laws of Panama and owned or controlled by a
United States person, except for interbank clearing payments. All
transfers or payments to the Government of Panama by such persons shall
be made into an account at the Federal Reserve Bank of New York, as
provided in 565.404.
31 CFR 565.204 Effect of transfers violating the provisions of this
part.
(a) Any transfer after 4:00 p.m. e.d.t., April 8, 1988, which is in
violation of any provision of this part or of any regulation, ruling,
instruction, license, or other direction or authorization hereunder and
involves any property in which the Government of Panama has or has had
an interest since such date, is null and void and shall not be the basis
for the assertion or recognition of any interest in or right, remedy,
power or privilege with respect to such property.
(b) No transfer before 4:00 p.m. e.d.t., April 8, 1988, shall be the
basis for the assertion or recognition of any right, remedy, power, or
privilege with respect to, or interest in, any property in which the
Government of Panama has an interest, or has had an interest since such
date, unless the person with whom such property is held or maintained
had written notice of the transfer or by any written evidence had
recognized such transfer prior to such date.
(c) Unless otherwise provided, an appropriate license or other
authorization issued by or pursuant to the direction or authorization of
the Director of the Office of Foreign Assets Control before, during, or
after a transfer shall validate such transfer or render it enforceable
to the same extent as it would be valid or enforceable but for the
provisions of the International Emergency Economic Powers Act and this
part, and any ruling, order, regulation, direction or instruction issued
hereunder.
(d) Transfers of property which otherwise would be null and void or
unenforceable, by virtue of the provisions of this section, shall not be
deemed to be null and void or unenforceable pursuant to such provisions,
as to any person with whom such property was held or maintained (and as
to such person only) in cases in which such person is able to establish
to the satsifaction of the Director of the Office of Foreign Assets
Control each of the following:
(1) Such transfer did not represent a willful violation of the
provisions of this part by the person with whom such property was held
or maintained;
(2) The person with whom such property was held or maintained did not
have reasonable cause to know or suspect, in view of all the facts and
circumstances known or available to such person, that such transfer
required a license or authorization by or pursuant to this part and was
not so licensed or authorized, or if a license or authorization did
purport to cover the transfer, that such license or authorization had
been obtained by misrepresentation of a third party or the withholding
of material facts or was otherwise fraudulently obtained; and
(3) Promptly upon discovery that:
(i) Such transfer was in violation of the provisions of this part or
any regulation, ruling, instruction, license or other direction or
authorization hereunder; or
(ii) Such transfer was not licensed or authorized by the Director of
the Office of Foreign Assets Control; or
(iii) If a license did purport to cover the transfer, such license
had been obtained by misrepresentation of a third party or the
withholding of material facts or was otherwise fraudulently obtained;
the person with whom such property was held or maintained must file with
the Treasury Department, Washington, DC, a report setting forth in full
the circumstances relating to such transfer.
The filing of a report in accordance with the provisions of this
paragraph shall not be deemed to be compliance or evidence of compliance
with paragraphs (d)(1) and (2) of this section.
(e) Unless licensed or authorized pursuant to this part, any
attachment, judgment, decree, lien, execution, garnishment or other
judicial process is null and void with respect to any property in which
on or since 4:00 p.m. e.d.t., April 8, 1988, there existed an interest
of the Government of Panama.
31 CFR 565.205 Holding of certain types of blocked property in
interest-bearing accounts.
(a) Any person currently holding property subject to 565.201 which,
as of the effective date of this section, June 3, 1988, is not being
held in an interest-bearing account, or otherwise invested in a manner
authorized by the Office of Foreign Assets Control, shall transfer such
property to, or hold such property or cause such property to be held in,
an interest-bearing account in a domestic financial institution as of
the effective date of this section, unless otherwise authorized or
directed by the Office of Foreign Assets Control. This requirement
shall apply to currency, bank deposits and accounts, and any proceeds
resulting from the sale of tangible property.
(b) For purposes of this section, the term ''interest-bearing
account'' means a blocked account in a domestic financial institution
earning interest at rates that are commercially reasonable for the
amount of funds in the account. The funds may not be invested or held
in instruments the maturity of which exceeds 30 days. The term
''domestic financial institution'' is defined in 565.311.
(c) This section does not apply to blocked tangible, non-financial
property, such as chattels, nor does it create an affirmative obligation
on the part of the holder of such blocked tangible property to sell the
property and put the proceeds in a blocked account. However, the Office
of Foreign Assets Control may issue licenses permitting or directing
sales of tangible property in appropriate cases.
31 CFR 565.206 Evasions.
Any transaction for the purpose of, or which has the effect of,
evading or avoiding any of the prohibitions set forth in this subpart is
hereby prohibited.
31 CFR 565.206 Subpart C -- General Definitions
31 CFR 565.301 Effective date.
The term effective date means 4:00 p.m., Eastern Daylight Time, April
8, 1988, except with respect to 565.205, which is effective June 3,
1988.
31 CFR 565.302 Panama.
The term Panama means Panama and all areas under the jurisdiction or
authority thereof.
31 CFR 565.303 Government of Panama.
The term Government of Panama includes the state and the Government
of Panama, as well as any political subdivision, agency, or
instrumentality thereof, including the Banco Nacional de Panama and the
Caja de Ahorros. See appendix A to this part for a list of additional
Government of Panama entities.
31 CFR 565.304 Noriega/Solis regime.
(a) The term Noriega/Solis regime includes:
(1) Manuel Antonio Noriega, Manuel Solis Palma, and any agencies,
instrumentalities or entities purporting to act on behalf or under the
asserted authority of either or both;
(2) Any partnership, association, corporation, or other organization
substantially owned or controlled by the foregoing;
(3) Any person to the extent that such person is, or has been, or to
the extent that there is reasonable cause to believe that such person
is, or has been, since the effective date acting or purporting to act
directly or indirectly on behalf of any of the foregoing; or
(4) Any other person or organization determined by the Director of
the Office of Foreign Assets Control to be included within paragraph
(a)(3) of this section. Such determinations shall be published from
time to time in an appendix B to this part, but shall be binding prior
to such publication upon any person receiving actual notice thereof.
(b) A partnership, association, corporation, or other organization
shall not be deemed to fall within the definition of the ''Noriega/Solis
regime'' solely by reason of being located in, organized under the laws
of, or having its principal place of business in, Panama.
(53 FR 20566, June 3, 1988, as amended at 54 FR 36272, Aug. 31, 1989)
31 CFR 565.305 Entity.
The term entity includes a corporation, partnership, association, or
other organization.
31 CFR 565.306 United States.
The term United States means the United States, its territories and
possessions, and all areas under the jurisdiction or authority thereof.
31 CFR 565.307 United States person.
The term United States person means any United States citizen;
permanent resident alien; juridical person organized under the laws of
the United States, excluding overseas branches except those operating in
Panama; or any person in the United States.
31 CFR 565.308 Transfer.
The term transfer shall mean any actual or purported act or
transaction, whether or not evidenced by writing, and whether or not
done or performed within the United States, the purpose, intent or
effect of which is to create, surrender, release, transfer, or alter,
directly or indirectly, any right, remedy, power, privilege, or interest
with respect to any property and, without limitation upon the foregoing,
shall include the making, execution, or delivery of any assignment,
power, conveyance, check, declaration, deed, deed of trust, power of
attorney, power of appointment, bill of sale, mortgage, receipt,
agreement, contract, certificate, gift, sale, affidavit, or statement;
the appointment of any agent, trustee, or fiduciary; the creation or
transfer of any lien; the issuance, docketing, filing, or the levy of
or under any judgment, decree, attachment, injunction, execution, or
other judicial or administrative process or order, or the service of any
garnishment; the acquisition of any interest of any nature whatsoever
by reason of a judgment or decree of any foreign country; the
fulfillment of any condition, or the exercise of any power of
appointment, power of attorney, or other power.
31 CFR 565.309 Property; property interests.
The term property and property interest or property interests shall
include, but not by way of limitation, money, checks, drafts, bullion,
bank deposits, savings accounts, debts, indebtedness, obligations,
notes, debentures, stocks, bonds, coupons, and other financial
securities, bankers' acceptances, mortgages, pledges, liens or other
rights in the nature of security, warehouse receipts, bills of lading,
trust receipts, bills of sale, any other evidences of title, owners or
indebtedness, letters of credit and any documents relating to any rights
or obligations thereunder, powers of attorney, goods, wares,
merchandise, chattels, stocks on hand, ships, goods or ships, real
estate mortgages, deeds of trust, vendors' sales agreements, land
contracts, real estate and any interest therein, leaseholds, ground
rents, options, negotiable instruments, trade acceptances, royalties,
book accounts, accounts payable, judgments, patents, trademarks or
copyrights, insurance policies, safe deposit boxes and their contents,
annuities, pooling agreements, contracts of any nature whatsoever, and
any other property, real, personal, or mixed, tangible or intangible, or
interest or interests therein, present, future or contingent.
31 CFR 565.310 Credits.
The term credits means any transfer or extension of funds or credit
on the basis of an obligation to repay, or any assumption or guarantee
of the obligation of another to repay an extension of funds or credit.
The term ''credits'' includes, but is not limited to: Overdrafts;
purchases of debt securities issued by the Government of Panama after
April 8, 1988; sales of financial assets subject to an agreement to
repurchase; renewals or refinancings whereby funds or credits are
transferred to or extended to the Governor of Panama; and draw-downs on
existing lines of credit.
31 CFR 565.311 Domestic financial institution.
The term domestic financial institution means any of the following:
(a) An insured bank as defined in section 3 of the Federal Deposit
Insurance Act;
(b) An insured institution as defined in section 408(a) of the
National Housing Act;
(c) An insured credit union as defined in section 101 of the Federal
Credit Union Act; or
(d) Any other institution that is carrying on banking activities and
that is chartered by a federal or state banking authority.
31 CFR 565.312 Interest.
Except as otherwise provided in this part, the term interest when
used with respect to property (e.g., ''an interest in property'') shall
mean an interest of any nature whatsoever, direct or indirect.
31 CFR 565.313 Blocked account; blocked property.
The terms blocked account and blocked property shall mean any account
or property in which the Government of Panama has an interest, with
respect to which payments, transfers or withdrawals or other dealings
may not be made or effected except pursuant to an authorization or
license authorizing such action.
31 CFR 565.314 Interbank clearing payments.
The term interbank clearing payments means payments of funds by a
bank to another bank, where such payments are effected by the bank or
banks over a funds transfer system such as FedWire, CHIPS, SWIFT, or the
like, or across an individual bank's books, where none of the banks
involved has any actual knowledge that the original remitter of any
funds to the Noriega/Solis regime is located in the United States and is
other than a bank acting on its own behalf. See 565.407 for further
clarification.
31 CFR 565.315 License.
Except as otherwise specified, the term license means any license or
authorization contained in or issued pursuant to this part.
31 CFR 565.316 General license.
The term general license means any license or authorization the terms
of which are set forth in this part.
31 CFR 565.317 Specific license.
The term specific license means any license or authorization not set
forth in this part but issued pursuant to this part in response to a
written application.
31 CFR 565.317 Subpart D -- Interpretations
31 CFR 565.401 Reference to amended sections.
Reference to any section of this part or to any regulation, ruling,
order, instruction, direction, or license issued pursuant to this part
shall be deemed to refer to the same as currently amended unless
otherwise so specified.
31 CFR 565.402 Effect of amendment of sections of this part or of other
orders, etc.
Any amendment, modification, or revocation of any section of this
part or of any order, regulation, ruling, instruction, or license issued
by or under the direction of the Director of the Office of Foreign
Assets Control shall not, unless otherwise specifically provided, be
deemed to affect any act done or omitted to be done, or any suit or
proceeding had or commenced in any civil or criminal case prior to such
amendment, modification, or revocation. All penalties, forfeitures, and
liabilities under any such order, regulation, ruling, instruction, or
license shall continue and may be enforced as if such amendment,
modification, or revocation had not been made.
31 CFR 565.403 Termination and acquisition of an interest of the
Government of Panama.
(a) Whenever a transaction licensed or authorized by or pursuant to
this part results in the transfer of property (including any property
interest) away from the Government of Panama, such property shall no
longer be deemed to be property in which the Government of Panama has or
has had an interest unless there exists in the property another such
interest, the transfer of which has not been effected pursuant to
license or other authorization.
(b) Unless otherwise specifically provided in a license or
authorization issued pursuant to this part, if property (including any
property interest) is transferred to the Government of Panama, such
property shall be deemed to be property in which there exists an
interest of the Government of Panama.
31 CFR 565.404 Payments to the Noriega/Solis Regime prohibited;
procedures for making payments to the Federal Reserve Bank of New York.
The prohibitions on payments and transfers to the Noriega/Solis
regime in 565.202 and 565.203 apply to payments and transfers of any
kind whatsoever, including payment of debt obligations, fees, taxes, and
royalties owed to the Government of Panama, and also including payment
or transfer of dividends, interest payments, and other periodic
payments. Payments or transfers owed to the Government of Panama shall
be made to ''Government of Panama Account No. 2,'' established on the
books of the Federal Reserve Bank of New York pursuant to 565.202 and
565.203.
(a) Payments or transfers of funds into Government of Panama Account
No. 2 over FedWire should be made using Typecode 15. The transfer
instructions should name ''Government of Panama Account No. 2'' and
refer to routing number 021001208.
(b) Payments or transfers of funds to Government of Panama Account
No. 2 at the Federal Reserve Bank of New York other than by FedWire
(e.g., where FedWire is not available, as in Panama) shall be made
payable to Government of Panama Account No. 2 and sent, along with all
required or appropriate documents, to the following lockbox address:
Republic of Panama, Box No. 0225, Washington, DC 20055.
31 CFR 565.405 Blocking not applicable to U.S. persons outside the
United States.
For purposes of the prohibitions set forth in 565.201 of this part,
the term ''persons located in the United States'' is intended to express
a geographical limitation, and does not include U.S. persons located
outside the United States, their branches located outside the United
States, or juridical entities located outside the United States, even
though owned or controlled by U.S. persons.
31 CFR 565.406 Indirect payments to the Noriega/Solis regime; payments
by subsidiaries in third countries.
The prohibitions in 565.202 and 565.203 on payments or transfers to
the Noriega/Solis regime apply to indirect payments (including
reimbursement of a non-U.S. person for payment) made after 4:00 p.m.
E.D.T., April 8, 1988. Unlicensed payments or transfers made to the
Noriega/Solis regime from U.S. subsidiaries or branches in third
countries shall, where such payments or transfers are normally made from
the United States or Panama, be considered an evasion of the
prohibitions set forth in 565.202 and 565.203. Payments or transfers
routinely made from these entities, however, are not prohibited.
31 CFR 565.407 Clarification of interbank clearing payments.
(a) The authorization for interbank clearing payments contained in
565.202 and 565.203 includes payments by one bank to another to settle
on a net basis other payments transactions cleared by those banks,
including check exchanges.
(b) Notwithstanding instructions received from their correspondents,
banks located in the United States are not authorized to remit the
proceeds of documentary collections or letters of credit to accounts
maintained at Banco Nacional de Panama in Panama; such remittances are
not included within the meaning of ''interbank clearing payments.''
Banks located in the United States should seek alternate payment
instructions from their correspondents.
31 CFR 565.408 Setoffs prohibited.
(a) A setoff against a blocked account, whether by a bank or other
U.S. person, is a prohibited transfer under 565.202 and 565.203 if
effected after 4:00 p.m., e.d.t., April 8, 1988.
(b) Except as licensed or otherwise authorized, a setoff as a method
of settling payments to the Noriega/Solis regime, as by netting or
cancelling a debt or other obligation, is prohibited.
31 CFR 565.409 Payments in kind.
Payments in kind made to the Noriega/Solis regime in lieu of a
payment or transfer of funds, which term includes currency, cash or
coins of any nation, as well as other financial or investment assets or
credits, shall be considered an evasion of the prohibitions in subpart
B.
31 CFR 565.410 Transfers not prohibited with respect to the recognized
Government of Panama.
All transfers or payments to the Government of Panama for obligations
that first arise on or after December 20, 1989, may be made to the
recognized Government of Panama, including, without limitation, all
Panamanian governmental entities listed in appendix A (with the
exception of Marinexam, S.A. and Transit, S.A.): (a) From the United
States; and (b) by any United States person located in the territory of
Panama, or by any person organized under the laws of Panama and owned or
controlled by a United States person.
(55 FR 3561, Feb. 1, 1990)
31 CFR 565.410 Subpart E -- Licenses, Authorizations, and Statements of Licensing Policy
31 CFR 565.501 Effect of license or authorization.
(a) No license or other authorization contained in this part, or
otherwise issued by or under the direction of the Director of the Office
of Foreign Assets Control, shall be deemed to authorize or validate any
transaction effected prior to the issuance of the license, unless
specifically provided in such license or other authorization.
(b) No regulation, ruling, instruction, or license authorizes any
transaction prohibited under this part unless the regulation, ruling,
instruction, or license is issued by the Office of Foreign Assets
Control and specifically refers to this part. No regulation, ruling,
instruction, or license referring to this part shall be deemed to
authorize any transaction prohibited by any provision of this chapter
unless the regulation, ruling, instruction or license specifically
refers to such provision.
(c) Any regulation, ruling, instruction or license authorizing any
transaction otherwise prohibited under this part has the effect of
removing a prohibition or prohibitions in subpart B from the
transaction, but only to the extent specifically stated by its terms.
Unless the regulation, ruling, instruction or license otherwise
specifies, such an authorization does not create any right, duty,
obligation, claim, or interest in, or with respect to, any property
which would not otherwise exist under ordinary principles of law.
31 CFR 565.502 Exclusion from licenses and authorizations.
The Secretary of the Treasury reserves the right to exclude any
person from the operation of any license, or from the privileges therein
conferred, or to restrict the applicability thereof with respect to
particular persons, transactions or property or classes thereof. Such
action shall be binding upon all persons receiving actual or
constructive notice thereof.
31 CFR 565.503 Certain payments authorized.
(a) All payments and transfers necessary to pay costs of utilities in
Panama are authorized. Utilities shall include electricity, water, and
similar municipal services such as trash collection and police and fire
protection. The authorization set forth in this paragraph shall not be
construed to extend to payments to the Noriega/Solis regime by the
United States Government or any agency or instrumentality thereof, where
such payments would be inconsistent with U.S. treaty obligations to
Panama.
(b) All payments made in connection with social security taxes and
fees are authorized.
(c) All payments of indirect taxes (i.e., those normally collected in
the purchase of goods and services, such as sales and excise taxes) are
authorized. This does not authorize the remittance of such payments,
either directly or indirectly, by U.S. persons or juridical entities
owned or controlled by U.S. persons which collect such taxes for or on
behalf of the Government of Panama.
(d) All payments of administrative fees and taxes paid in connection
with basic business activity are authorized, including but not limited
to: Commercial license fees, corporate registration fees and taxes,
court pleading fees, creation of rights fees, copyright fees and taxes,
custodial fees and services, document processing fees, fiscal stamps,
health certificates, immigration fees, import duties and other
import-related expenses, inspection services, international banking
licenses, landing fees, legal fees, licensing fees, litigation costs,
mineral extraction fees, municipal taxes, new product fees, notaries'
fees, occupational risk insurance fees, parking meters, passport fees,
patent fees and taxes, plant inspection fees, port fees, quarantine
fees, radio and television registration fees, recordation fees, stamp
taxes, towage fees, transportation tolls, trademark fees and taxes,
vehicle registration fees, visa fees, warehouse storage fees, and work
permits.
(e) This section does not authorize payment of income taxes, rental
fees, or direct taxes and fees (e.g., export taxes and fees), not
otherwise authorized.
(53 FR 20566, June 3, 1988, as amended at 53 FR 23621, June 23, 1988;
53 FR 32222, Aug. 24, 1988)
31 CFR 565.504 Certain payments by individuals authorized.
All payments and transfers by individuals are authorized, except
income taxes. This paragraph does not authorize payments by an
individual made directly or indirectly on behalf of a juridical entity.
(53 FR 20566, June 3, 1988, as amended at 53 FR 23621, June 23, 1988)
31 CFR 565.505 Travel-related payments authorized.
All travel-related payments and transfers are authorized by
individuals, including airport departure fees and taxes on tickets, and
by United States persons, or by persons organized under the laws of
Panama and owned or controlled by a United States person, in connection
with the provision of travel services to individuals (e.g., landing fees
and fuel). This section does not authorize the payment of income taxes
that are normally withheld for individuals and paid by other persons.
31 CFR 565.506 Telecommunications and mail transactions authorized.
All payments and transfers for the purpose of securing postal or
telecommunications services are authorized, including payments and
transfers among common carriers for the purpose of securing such
services, and payments and transfers for telephone, telex, telegraphic,
satellite, and facsimile transmission services.
31 CFR 565.507 Payments and transfers related to purchase and sale of
publications authorized.
All payments and transfers related to the purchase in Panama or the
purchase or sale of publications involving Panama and the United States
are authorized. For purposes of this part, publications include books,
newspapers, magazines, films, phonograph records, tape recordings,
photographs, microfilm, microfiche, and posters, including items
described in the following:
(a) 15 CFR 399.1, Control List, Group 5, CL No. 7599I: microfilm
that reproduces the content of certain publications, and similar
materials.
(b) 15 CFR 399.1, Control List, Group 9, CL No. 7999I: certain
publications and related materials.
31 CFR 565.508 Payment by the Noriega/Solis regime of obligations to
persons within the United States.
(a) The transfer of funds by the Noriega/Solis regime after 4:00 p.m.
e.d.t., April 8, 1988, by, through, or to any domestic financial
institution or other person within the United States solely for payment
of obligations to persons within the United States is authorized,
provided that there is no debit to a blocked account. Property is not
blocked by virtue of being transferred or received pursuant to this
section.
(b) A person receiving payment under this section may distribute all
or part of that payment to anyone, provided that any such payment to the
Noriega/Solis regime must be in accordance with the provisions set forth
in 565.404.
31 CFR 565.509 Reserve accounts.
(a) United States persons and U.S.-controlled Panamanian entities who
are required under 565.202 and 565.203 to make payments and transfers
of certain funds owed to the Government of Panama into Government of
Panama Account No. 2 at the Federal Reserve Bank of New York, may elect
instead to apply for a specific license authorizing them to establish a
substitute blocked reserve account on their books in the name of the
Panamanian governmental entity to whom the amount is owed. Specific
licenses may be issued to permit payment into such reserve accounts of
amounts due and owing the Government of Panama, which amounts shall
include the principal amount of funds due, plus interest thereon,
determined pursuant to paragraph (b) of this section, accrued from the
later of April 8, 1988, or the date the payment obligation to the
Government of Panama first arose, to the date of payment into the
reserve account. In the case of funds already credited to Government of
Panama Account No. 2, specific licenses may be issued authorizing
transfer of such funds (including accrued interest) to such reserve
accounts. Such licenses are revocable, and are conditioned upon
continued compliance with the requirements of this part. Upon
revocation of a license or at the direction of the Director of the
Office of Foreign Assets Control, funds held in such reserve accounts
must be paid into Government of Panama Account No. 2.
(b) Funds credited to reserve accounts pursuant to this section shall
bear interest at a rate not less than the weekly average effective
Federal Funds rate, as published by the Federal Reserve Board,
applicable to each week of the period in which credit balances are
maintained pursuant to this section.
(c) If necessary to assure the availability of funds blocked in
reserve accounts pursuant to this section, the Director of the Office of
Foreign Assets Control may at any time require the payment of such
blocked funds into Government of Panama Account No. 2 at the Federal
Reserve Bank of New York, as provided in 565.404, or the supplying of
any form of security deemed necessary.
(d) A person receiving a specific license under paragraph (a) of this
section shall certify to the Office of Foreign Assets Control within
fifteen business days after receipt of that license that it has
established the reserve account on its books as provided in that
paragraph. Unless otherwise provided, a person licensed to establish
such a reserve account shall file monthly reports with the Office of
Foreign Assets Control setting forth all credits to the reserve account,
and interest payable in accordance with paragraph (b) of this section on
the reserve account, together with the nature of the debt, and the name
of the Panamanian governmental entity to which it is owed. The report
shall also contain a certification from an authorized official of the
entity affirming that the entity submitting the report is in compliance
with all other requirements of this part.
(54 FR 22, Jan. 3, 1989)
31 CFR 565.510 Authorization of new transactions concerning certain
Panamanian property.
(a) Transactions involving property in which the Government of Panama
has an interest are authorized where:
(1) The property comes within the jurisdiction of the United States
or into the control or possession of any person located in the United
States on or after December 20, 1989, except funds deposited or credited
to a blocked reserve account pursuant to 565.509, or to Government of
Panama Account No. 2 or 3 at the Federal Reserve Bank of New York
pursuant to 565.202 or 565.203; or
(2) The interest in the property of the Government of Panama (e.g.,
exports consigned to the Government of Panama) arises on or after
December 20, 1989.
(b) Unless authorized by the Office of Foreign Assets Control,
transactions remain prohibited pursuant to 565.201 if they involve
property in which the Government of Panama has an interest that:
(1) Was located in the United States or had come within the
possession or control of persons located in the United States during the
period between April 8, 1988, and December 20, 1989, or
(2) Is received in or enters the United States as an amount owed the
Government of Panama with respect to an obligation for which payment was
due prior to December 20, 1989.
(55 FR 3561, Feb. 1, 1990)
31 CFR 565.511 Transfer of funds credited to 565.509 blocked reserve
accounts.
(a) Specific licenses. Specific licenses may be issued authorizing
transfers of funds credited to blocked reserve accounts established
under license issued pursuant to 565.509, where the amount to be
transferred is different (except for the addition of interest owed) from
that reflected in the most recent monthly report filed with the Office
of Foreign Assets Control pursuant to 565.509(d). A specific license
pursuant to this paragraph is required, for example, if the account
holder claims adjustments based on amounts already allegedly satisfied
through measures by the Noriega regime such as, for example, unilateral
setoff, garnishment, or other scheme, or cases where greater principal
amounts than those previously reported would be paid. Applications for
specific licenses under this paragraph must include all of the following
information in the form of a final report consistent with the format of
previous monthly reports submitted pursuant to 565.509(d):
(1) A breakdown of the final amounts owed the Government of Panama,
identifying each tax or other obligation, and the governmental agency to
which the amount is owed;
(2) An itemized list of the adjustments to the amounts set forth in
the previous monthly report submitted pursuant to 565.509(d), which
result in the final amounts set forth in paragraph (a)(1) of this
section, with explanations therefor;
(3) A certification in the following form:
I, (name of certifying official) hereby certify that all amounts
stated in this application include interest at the rate and for the
period required pursuant to 31 CFR 565.509. I further certify that the
amounts set forth in this application represent payment of all
obligations known to (name of account holder) to the Government of
Panama owed during the period from April 8, 1988, to December 20, 1989,
payment of which was not otherwise authorized by the Office of Foreign
Assets Control and made during that period.
and;
(4) The written concurrence of the Government of Panama to the amount
to be transferred.
(b) General license. Transfers directly to the Government of Panama
of the unadjusted gross balances of blocked reserve accounts established
under license issued pursuant to 565.509 are authorized. Persons
electing to transfer gross balances must submit a final report within
ten days after the transfer is made, containing the information and
certification required in paragraphs (a) (1) and (3) of this section.
In addition, the final report must be accompanied by a copy of the money
transfer (check, bank wire, etc.) to the Government of Panama.
(55 FR 3561, Feb. 1, 1990)
31 CFR 565.511 Subpart F -- Reports
31 CFR 565.601 Required records.
Every person engaging in any transaction subject to the provisions of
this part shall keep a full and accurate record of each transaction in
which he engages, regardless of whether such transaction is effected
pursuant to license or otherwise, and such record shall be available for
examination for at least two years after the date of such transaction.
31 CFR 565.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, from time to time and at any time as may be
required, complete information relative to any transaction, regardless
of whether such transaction is effected pursuant to license or
otherwise, subject to the provisions of this part. Such reports may be
required to include the production of any books of account, contracts,
letters or other papers, connected with any such transaction or
property, in the custody or control of the persons required to make such
reports. Reports with respect to transactions may be required either
before or after such transactions are completed. The Secretary of the
Treasury may, through any person or agency, conduct investigations, hold
hearings, administer oaths, examine witnesses, receive evidence, take
depositions, and require by subpoena the attendance and testimony of
witnesses and the production of all books, papers, and documents
relating to any matter under investigation, regardless of whether any
report has been required or filed in connection therewith.
31 CFR 565.602 Subpart G -- Penalties
31 CFR 565.701 Penalties.
(a) Attention is directed to section 206 of the International
Emergency Economic Powers Act, 50 U.S.C. 1705, which provides in part:
A civil penalty of not to exceed $10,000 may be imposed on any person
who violates any license, order, or regulation issued under this title.
Whoever willfully violates any license, order, or regulation issued
under this title shall, upon conviction, be fined not more than $50,000,
or, if a natural person, may be imprisoned for not more than ten years,
or both; and any officer, director, or agent of any corporation who
knowingly participates in such violation may be punished by a like fine,
imprisonment, or both.
This section of the International Emergency Economic Powers Act is
applicable to violations of any provision of this part and to violations
of the provisions of any license, ruling, regulation, order, direction,
or instruction issued by or pursuant to the direction of authorization
of the Secretary of the Treasury pursuant to this part or otherwise
under the International Emergency Economic Powers Act.
(b) Attention is directed to 18 U.S.C. 1001, which provides:
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representation or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
(c) Violations of this part may also be subject to relevant
provisions of the Customs laws and other applicable laws.
31 CFR 565.702 Prepenalty notice.
(a) When required. If the Director of the Office of Foreign Assets
Control (hereinafter ''Director) has reasonable cause to believe that
there has occurred a violation of any provision of this part or a
violation of the provisions of any license, ruling, regulation, order,
direction or instruction issued by or pursuant to the direction or
authorization of the Secretary of the Treasury pursuant to this part or
otherwise under the International Emergency Economic Powers Act, and the
Director determines that further proceedings are warranted, he shall
issue to the person concerned a notice of his intent to impose a
monetary penalty. The prepenalty notice shall be issued whether or not
another agency has taken any action with respect to this matter.
(b) Contents.
(1) Facts of violation.
The prepenalty notice shall:
(i) Describe the violation.
(ii) Specify the laws and regulations allegedly violated.
(iii) State the amount of the proposed monetary penalty.
(2) Right to make presentations. The prepenalty notice also shall
inform the person of his right to make a written presentation within
thirty (30) days of mailing of the notice as to why a monetary penalty
should not be imposed, or, if imposed, why it should be in a lesser
amount than proposed.
31 CFR 565.703 Presentation responding to prepenalty notice.
(a) Time within which to respond. The named person shall have 30
days from the date of mailing of the prepenalty notice to make a written
presentation to the Director.
(b) Form and contents of written presentation. The written
presentation need not be in any particular form, but shall contain
information sufficient to indicate that it is in response to the
prepenalty notice. It should contain responses to the allegations in
the prepenalty notice and set forth the reasons why the person believes
the penalty should not be imposed or, if imposed, why it should be in a
lesser amount than proposed.
31 CFR 565.704 Penalty notice.
(a) No violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was no violation by the person named in the prepenalty notice, he
promptly shall notify the person in writing of that determination and
that no monetary penalty will be imposed.
(b) Violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was a violation by the person named in the prepenalty notice, he
promptly shall issue a written notice of the imposition of the monetary
penalty to that person.
31 CFR 565.705 Referral to United States Department of Justice.
In the event that the person named does not pay the penalty imposed
pursuant to this subpart or make payment arrangements acceptable to the
Director within thirty days of the mailing of the written notice of the
imposition of the penalty, the matter shall be referred to the United
States Department of Justice for appropriate action to recover the
penalty in a civil suit in a Federal district court.
31 CFR 565.705 Subpart H -- Procedures
31 CFR 565.801 Licensing.
(a) General licenses. General licenses have been issued authorizing
under appropriate terms and conditions certain types of transactions
which are subject to the prohibitions contained in subpart B of this
part. All such licenses are set forth in subpart E of this part. It is
the policy of the Office of Foreign Assets Control not to grant
applications for specific licenses authorizing transactions to which the
provisons of an outstanding general license are applicable. Persons
availing themselves of certain general licenses may be required to file
reports and statements in accordance with the instruction specified in
those licenses.
(b) Specific licenses -- (1) General course of procedure.
Transactions subject to the prohibitions contained in subpart B of this
part which are not authorized by general license may be effected only
under specific licenses.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transaction prohibited by or pursuant to this
part may be filed in duplicate by letter or on an application form with
the Office of Foreign Assets Control. Any person having an interest in
a transaction in proposed transaction may file an application for a
license authorizing such transaction, but the applicant for a specific
license is required to make the fullest disclosure of all parties in
interest to the transaction so that a decision on the application may be
made with the fullest knowledge of all relevant facts and so that the
identity and location of the persons who know the most about the
transactions may be easily ascertained in the event of inquiry.
(3) Information to be supplied. The applicant must supply all
information specified by relevant instructions and/or forms, and must
fully disclose the names of all the parties who are concerned with or
interested in the proposed transaction. If the application is filed for
an account other than that of the applicant, the agent, as applicant,
must disclose the name of his principal(s). Such documents as may be
relevant shall be attached to each application as a part of such
application except that documents previously filed with the Office of
Foreign Assets Control may, where appropriate, be incorporated by
reference. Applicants may be required to furnish such further
information as is deemed necessary to a proper determination by the
Office of Foreign Assets Control. If an applicant or other party in
interest desires to present additional information or discuss or argue
the application, he may do so at any time before or after decision.
Arrangements for oral presentation should be made with the Office of
Foreign Assets Control.
(4) Effect of denial. The denial of a license does not preclude the
reopening of an application or the filing of a further application. The
application or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition upon the
issuance of any license, the licensee may be required to file reports
with respect to the transaction covered by the license, in such form and
at such times and places as may be prescribed in the license or
otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the Treasury
or licenses may be issued by the Secretary of the Treasury acting
directly or through any specifically designated person, agency, or
instrumentality.
31 CFR 565.802 Decisions.
The Office of Foreign Assets Control will advise each applicant of
the decision respecting filed applications. The decision of the Office
of Foreign Assets Control acting on behalf of the Secretary of the
Treasury with respect to an application shall constitute final agency
action.
31 CFR 565.803 Amendment, modification, or revocation.
The provisions of this part and any rulings; licenses, whether
general or specific; authorizations; instructions; orders; or forms
issued hereunder may be amended, modified, or revoked at any time.
31 CFR 565.804 Rulemaking.
(a) All rules and other public documents are issued by the Secretary
of the Treasury upon recommendation of the Director of the Office of
Foreign Assets Control. In general, rulemaking by the Office of Foreign
Assets Control involves foreign affairs functions of the United States,
and for that reason is exempt from the requirements under the
Administrative Procedure Act (5 U.S.C. 553) for notice of proposed
rulemaking, opportunity for public comments, and delay in effective
date. Wherever possible, however, it is the practice of the Office of
Foreign Assets Control to receive written submissions or hold informal
consultations with interested parties before the issuance of any rule or
other public document.
(b) Any interested person may petition the Director of the Office of
Foreign Assets Control in writing for the issuance, amendment, or repeal
of any rule.
31 CFR 565.805 Delegation by the Secretary of the Treasury.
Any action which the Secretary of the Treasury is authorized to take
pursuant to Executive Order No. 12635 may be taken by the Director,
Office of Foreign Assets Control, or by any other person to whom the
Secretary of the Treasury has delegated authority so to act.
31 CFR 565.806 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control which are
required by 5 U.S.C. 552 to be made available to the public shall be
made available in accordance with the definitions, procedures, payment
of fees, and other provisions of the regulations on the Disclosure of
Records of the Office of the Secretary and of other bureaus and offices
of the Department issued under 5 U.S.C. 552 and published as part 1 of
this title 31 of the Code of Federal Regulations.
(b) Any form issued for use in connection with the Panamanian
Transactions Regulations may be obtained in person or by writing to the
Office of Foreign Assets Control, Department of the Treasury,
Washington, DC 20220.
31 CFR 565.806 Subpart I -- Paperwork Reduction Act
31 CFR 565.901 Paperwork Reduction Act Notice.
The information collection requirements in 565.601, 565.602, and
565.801 have been approved by the Office of Management and Budget and
assigned control number 1505-0113.
(53 FR 37556, Sept. 27, 1988)
31 CFR 565.901 Appendix A to Part 565 -- Panamanian Governmental Entities
31 CFR 565.901 Pt. 565, App. A
Abbattoir Nacional
Aeronautica Civil de Panama and/or Direccion General de Aeronautica
Civil
Air Panama
Autoridad Portuaria Nacional (National Port Authority)
Banco de Desarrollo Agropecuario
Banco Hipotecario Nacional (National Mortgage Bank)
Banco Institucional Patria (Institutional Bank of the Fatherland)
Banco Nacional de Panama (Panama National Bank)
Caja de Ahorros (Savings Bank)
Caja de Seguro Social (Social Security)
Citricos de Chiriqui (Chiriqui Citric Plant)
Colon Free Zone
Comite Nacional de Semillas (CANASEM)
Consejo Nacional del Banano
Consejo Nacional de Inversiones (CNI)
Consulado de Panama (Consulate of Panama) /1/
Consulado General de Panama (Consulate General of Panama) /1/
Consular y Naves and/or Direccion General Consular y Naves (SECNAVES)
Contadora Panama S.A.
Cooperativa Agroindustrial de Icacal (CAICA)
Corporacion Agropecuaria de Rio Hato (COAPRHA)
Corporacion Azucarera la Victoria (Sugar Mill)
Corporacion Bananera del Atlantico (COBANA)
Corporacion Bayano (Bayano Cement)
Corporacion Financiera Nacional
Corp. para el Desarrollo Integral del Bayano
Corp. para el Desarrollo Integral de Bocas del Toro
Direccion de Aeronautica Civil (Civil Aeronautics) (DAC)
Direccion de Patrimonio Historico (Historic Heritage)
Direccion General para el Desarrollo de la Comunidad (Community
Development Admin.) (DIGEDECOM)
Direccion General de Aduanas (Customs Services)
Direccion Nacional de Acuicultura (DINAAC)
Direccion Nacional de Asuntos Administrativos
Direccion Nacional de Agroindustrias
Direccion Nacional de Asuntos Indigenas (DINAI)
Direccion Nacional de Desarrollo Social
Direccion Nacional de Informacion y Divulgacion
Direccion Nacional de Ingenieria
Direccion Nacional de Planificacion Sectorial
Direccion Nacional de Produccion Agricola
Direccion Nacional de Produccion Pecuaria
Direccion Nacional de Reforma Agraria
Direccion Metropolitana de Aseo
Directorio de Sanidad Vegetal
Electric Power Institute (IRHE)
Empresa Nacional de Maguinaria Agricola (ENDEMA)
Empresa Nacional de Semillas (ENASEM)
Explosivos Nacional, S.A. ( Property of Panamanian Military Officers)
Floresta Panamena
Fomento Lechero
Fuerza Aerea Panamena (Panamanian Air Force)
Hipodromo Presidente Remon (Race Tracks)
Instituto para la Formacion y Aprovechamiento de Recursos Humanos
(IFARHU)
Instituto de Acueductos y Alcantarillados Nacionales
Instituto de Investigacion Agropecuaria de Panama
Instituto de Mercadeo Agropecuario (IMA)
Instituto de Recursos Hidraulicos y Electrificacion
Instituto de Seguro Agropecuario (ISA)
Instituto Nacional de Agricultura, Divisa (INA)
Instituto Nacional de Cultura (Culture) (INAC)
Instituto Nacional de Deporte (Sports) (INDE)
Instituto Nacional de Formacion Professional (INAFORP)
Instituto Nacional de Recursos Naturales Renovables (INRENARE)
Instituto Panameno Autonomo Cooperativo (IPACOOP)
Instituto Panameno de Comercio Exterior (IPCE)
Instituto Panameno de Habilitacion Especial (IPHE)
Instituto Nacional de Telecommunicaciones (National
Telecommunications Institute) (INTEL)
Instituto Panameno de Turismo (Tourism ) (IPAT)
Laboratorio de Sanidad Animal
Marinexam, S.A.
Mision de Panama Ante las Naciones Unidas (Mission of Panama to the
United Nations)
National Lottery
National Treasury of the Republic of Panama and/or Ministerio de
Hacienda de la Republica de Panama
Organizacion Internacional Regional de Sanidad Agropecuaria (OIRSA)
Palma Africana
Segumar
Transit, S.A. (Property of Panamanian Military Officers)
Universidad de Panama (University of Panama)
Universidad Technologica
Water and Sewage Institute (IDAN)
Zona Libre de Colon.
(53 FR 20566, June 3, 1988, as amended at 54 FR 13883, Apr. 6, 1989)
/1/ Different restrictions may apply to various consulates and
consulates general. Questions should be directed to the Office of
Foreign Assets Control.
31 CFR 565.901 Appendix B to Part 565 -- Persons and Organizations Acting on Behalf of the Noriega/Solis Regime
31 CFR 565.901 Pt. 565, App. B
31 CFR 565.901 I. Officials of the Panamanian Defense Forces and Other
Officials of the Noriega/Solis Regime
31 CFR 565.901 A. Members of Strategic Military Council
Lt. Col. Moises Correa
Lt. Col. Nivaldo Madrinan
Maj. Pascual Gonzalez
Lt. Col. Armando Palacios Gondola
Maj. Daniel Delgado
Maj. Jose Trujillo
Lt. Col. Luiz Cordoba
Maj. Rafael Cedeno
Maj. Federico Olechea
Maj. Humberto Melara
Maj. Francisco Porras
Capt. Jesus George Balma
Capt. Marcos Castillo
Capt. Nicasio Lorenzo Drake
Capt. Luis Quiel
Capt. Severino Mejia
Capt. Mario Del Cid
31 CFR 565.901 B. Officials of Autonomous Agencies
31 CFR 565.901 II. Persons and Organizations in the Private Sector
(Reserved)
(54 FR 36272, Aug. 31, 1989)
31 CFR 565.901 Pt. 570
31 CFR 565.901 PART 570 -- KUWAITI ASSETS CONTROL REGULATIONS
31 CFR 565.901 Subpart A -- Relation of This Part to Other Laws and
Regulations
Sec.
570.101 Relation of this part to other laws and regulations.
31 CFR 565.901 Subpart B -- Prohibitions
570.201 Prohibited transactions involving property in which the
Government of Kuwait has an interest; transactions with respect to
securities.
570.202 Effect of transfers violating the provisions of this part.
570.203 Holding of certain types of blocked property in
interest-bearing accounts.
570.204 Prohibited importation of goods or services from Kuwait.
570.205 Prohibited exportation and exportation of goods, technology,
or services to Kuwait.
570.206 Prohibited dealing in property.
570.207 Prohibited transactions relating to travel to Kuwait or to
activities within Kuwait.
570.208 Prohibited transportation-related transactions involving
Kuwait.
570.209 Prohibited performance of contracts.
570.210 Prohibited transfers of funds to the Government of Kuwait or
any person in Kuwait.
570.211 Evasions; attempts; conspiracies.
570.212 Effective date.
31 CFR 565.901 Subpart C -- General Definitions
570.301 Blocked account; blocked property.
570.302 Effective date.
570.303 Entity.
570.304 Entity of the Government of Kuwait; Kuwaiti government
entity.
570.305 General license.
570.306 Government of Iraq.
570.307 Government of Kuwait.
570.308 Interest.
570.309 Iraq; Iraqi.
570.310 Kuwait; Kuwaiti.
570.311 Kuwaiti origin.
570.312 Kuwaiti person.
570.313 License.
570.314 Person.
570.315 Property; property interest.
570.316 Specific license.
570.317 Transfer.
570.318 UNSC Resolution 661.
570.319 United States.
570.320 U.S. financial institution.
570.321 United States person; U.S. person.
31 CFR 565.901 Subpart D -- Interpretations
570.401 Reference to amended sections.
570.402 Effect of amendment.
570.403 Termination and acquisition of an interest of the Government
of Kuwait.
570.404 Payments from blocked accounts to U.S. exporters and for
other obligations prohibited.
570.405 Acquisition of instruments including bankers acceptances.
570.406 Extensions of credit or loans to Kuwait.
570.407 Payments in connection with certain authorized transactions.
570.408 Offshore transactions.
570.409 Transshipments through the United States prohibited.
570.410 Imports of Kuwaiti goods from third countries.
570.411 Exports to third countries.
570.412 Release of Kuwaiti goods from bonded warehouse or foreign
trade zone.
570.413 Goods intended for export to Kuwait.
570.414 Imports of Kuwait goods and purchases of goods from Kuwait.
570.415 Setoffs prohibited.
570.416 Travel transactions for journalistic activity in Kuwait.
570.417 Transactions among licensed entities.
570.418 Transactions incidental to a licensed transaction.
31 CFR 565.901 Subpart E -- Licenses, Authorizations and Statements of
Licensing Policy
570.501 Effect of license or authorization.
570.502 Exclusion from licenses and authorizations.
570.503 Payments and transfers to blocked accounts in U.S. financial
institutions.
570.504 Completion of certain foreign exchange, securities, and
commodities transactions.
570.505 Completion of certain transactions related to bankers
acceptances authorized.
570.506 Payment by the Government of Kuwait of obligations to persons
within the United States authorized.
570.507 Certain exports to Kuwait authorized.
570.508 Import of household and personal effects from Kuwait
authorized.
570.509 Payment and transfers authorized for shipments of oil under
contract and en route to the United States prior to the effective date.
570.510 Payment and transfers authorized for goods and services
exported to Kuwait prior to the effective date.
570.511 Extensions and renewals authorized.
570.512 Investment and reinvestment of Government of Kuwait funds
held in blocked accounts.
570.513 Transactions related to telecommunications authorized.
570.514 Transactions related to mail authorized.
570.515 Fees for professional services authorized.
570.516 Certain transactions with respect to patents, trademarks, and
copyrights authorized.
570.517 Procedures established for export transactions initiated
prior to effective date.
570.518 Certain standby letters of credit and performance bonds.
570.519 Certain imports for diplomatic or official personnel
authorized.
570.520 Donations of food to relieve human suffering authorized.
570.521 Certain exportations of medical supplies authorized.
570.522 Authorization of certain new transactions with respect to
Kuwait.
570.523 Authorization of certain new transactions with respect to
blocked Government of Kuwait property.
31 CFR 565.901 Subpart F -- Reports
570.601 Required records.
570.602 Reports to be furnished on demand.
31 CFR 565.901 Subpart G -- Penalties
570.701 Penalties.
570.702 Prepenalty notice.
570.703 Presentation responding to prepenalty notice.
570.704 Penalty notice.
570.705 Referral to United States Department of Justice.
31 CFR 565.901 Subpart H -- Procedures
570.801 Licensing.
570.802 Decisions.
570.803 Amendment, modification, or revocation.
570.804 Rulemaking.
570.805 Delegation by the Secretary of the Treasury.
570.806 Rules governing availability of information.
31 CFR 565.901 Subpart I -- Paperwork Reduction Act
570.901 Paperwork Reduction Act Notice.
Appendix A to Part 570 -- Kuwaiti Governmental Entities
Authority: 50 U.S.C. 1701 et seq. ; 50 U.S.C. 1601 et seq. ; 22
U.S.C. 287c; Pub. L. 101-513, 104 Stat. 2047-55 (Nov. 5, 1990); 3
U.S.C. 301; E.O. 12722, 55 FR 31803 (Aug. 3, 1990); E.O. 12723, 55 FR
31805 (Aug. 3, 1990); E.O. 12725, 55 FR 33091 (Aug. 13, 1990).
Source: 55 FR 49857, Nov. 30, 1990, unless otherwise noted.
31 CFR 565.901 Subpart A -- Relation of This Part To Other Laws and Regulations
31 CFR 570.101 Relation of this part to other laws and regulations.
(a) This part is separate from, and independent of, the other parts
of this chapter. No license or authorization contained in or issued
pursuant to those other parts authorizes any transaction prohibited by
this part. No license or authorization contained in or issued pursuant
to any other provision of law or regulation authorizes any transaction
prohibited by this part.
(b) No license or authorization contained in or issued pursuant to
this part relieves the involved parties from complying with any other
applicable laws or regulations.
31 CFR 570.101 Subpart B -- Prohibitions
31 CFR 570.201 Prohibited transactions involving property in which the
Government of Kuwait has an interest; transactions with respect to
securities.
(a) Except as authorized by regulations, rulings, instructions,
licenses, or otherwise, no property or interests in property of
Government of Kuwait that are in the United States, that hereafter come
within the United States, or that are or hereafter come within the
possession or control of U.S. persons, including their overseas
branches, may be transferred, paid, exported, withdrawn or otherwise
dealt in.
(b) Unless otherwise authorized by this part or by a specific license
expressly referring to this section, the transfer (including the
transfer on the books of any issuer or agent thereof), the endorsement
or guaranty of signatures on, or any other dealing in any security (or
evidence thereof) registered or inscribed in the name of the Government
of Kuwait and held within the possession or control of a U.S. person is
prohibited, irrespective of the fact that at any time either at or
subsequent to the effective date the registered or inscribed owner
thereof may have, or appears to have, assigned, transferred, or
otherwise disposed of any such security.
(c) A transfer of property to or from the Government of Kuwait and
not involving a U.S. person shall be recognized for purposes of this
section if the transfer complied with all applicable United Nations
Security Council resolutions as implemented in the country of transfer
as to the property transferred, and was otherwise lawful in the country
of transfer.
(d) Example: If a U.S. person acquires a security which had been
sold on August 9, 1990, by the Government of Kuwait to a citizen of the
United Kingdom, the security would not be considered property in which
the Government of Kuwait has an interest if the August 9 transfer was
lawful in the United Kingdom. The United Kingdom implemented UNSC
Resolution 661 prior to August 9, 1990, with respect to transfers of
securities to and from the Government of Kuwait.
31 CFR 570.202 Effect of transfers violating the provisions of this
part.
(a) Any transfer after the effective date, which is in violation of
any provision of this part or of any regulation, ruling, instruction,
license, or other direction or authorization hereunder and involves any
property in which the Government of Kuwait has or has had an interest
since such date, is null and void and shall not be the basis for the
assertion or recognition of any interest in or right, remedy, power or
privilege with respect to such property.
(b) No transfer before the effective date shall be the basis for the
assertion or recognition of any right, remedy, power, or privilege with
respect to, or interest in, any property in which the Government of
Kuwait has an interest, or has had an interest since such date, unless
the person with whom such property is held or maintained, prior to such
date, had written notice of the transfer or by any written evidence had
recognized such transfer.
(c) Unless otherwise provided, an appropriate license or other
authorization issued or pursuant to the direction or authorization of
the Director of the Office of Foreign Assets Control before, during, or
after a transfer shall validate such transfer or render it enforceable
to the same extent that it would be valid or enforceable but for the
provisions of the International Emergency Economic Power Act, the United
Nations Participation Act, and this part, and any ruling, order,
regulation, direction, or instruction issued hereunder.
(d) Transfers of property which otherwise would be null and void or
unenforceable by virtue of the provisions of this section shall not be
deemed to be null and void or unenforceable as to any person with whom
such property was held or maintained (and as to such person only) in
cases in which such person is able to establish to the satisfaction of
the Director of the Office of Foreign Assets Control each of the
following:
(1) Such transfer did not present a willful violation of the
provisions of this part by the person with whom such property was held
or maintained;
(2) The person with whom such property was held or maintained did not
have reasonable cause to know or suspect, in view of all the facts and
circumstances known or available to such person, that such transfer
required a license or authorization by or pursuant to this part and was
not so licensed or authorized, or if a license or authorization did
purport to cover the transfer, that such license or authorization had
been obtained by misrepresentation of a third party or the withholding
of material facts or was otherwise fraudulently obtained; and
(3) Promptly upon discovery that
(i) Such transfer was in violation of the provisions of this part or
any regulation, ruling, instruction, license, or other direction or
authorization hereunder, or
(ii) Such transfer was not licensed or authorized by the Director of
the Office of Foreign Assets Control, or
(iii) If a license did purport to cover the transfer, such license
had been obtained by misrepresentation of a third party or the
withholding of material facts or was otherwise fraudulently obtained;
the person with whom such property was held or maintained filed with
the Office of Foreign Assets Control a report setting forth in full the
circumstances relating to such transfer. The filing of a report in
accordance with the provisions of this paragraph shall not be deemed
evidence that the terms of paragraphs (d) (1) and (2) of this section
have been satisfied.
(e) Unless licensed or authorized pursuant to this part, any
attachment, judgment, decree, lien, execution, garnishment, or other
judicial process is null and void with respect to any property in which,
on or since the effective date, there existed an interest of the
Government of Kuwait.
31 CFR 570.203 Holding of certain types of blocked property in
interest-bearing accounts.
(a) Any person, including a U.S. financial institution, currently
holding property subject to 570.201 which, as of the effective date or
the date of receipt if subsequent to the effective date, is not being
held in an interest-bearing account, or otherwise invested in a manner
authorized by the Office of Foreign Assets Control, must transfer such
property to, or hold such property or cause such property to be held in,
an interest-bearing account or interest-bearing status in a U.S.
financial institution as of the effective date or the date of receipt if
subsequent to the effective date of this section, unless otherwise
authorized or directed by the Office of Foreign Assets Control. This
requirement shall apply to currency and any other financial assets, bank
deposits, accounts, and any proceeds resulting from the sale of tangible
or intangible property. If interest is credited to an account separate
from that in which the interest-bearing asset is held, the name of the
account party on both accounts must be the same and must clearly
indicate the blocked Government of Kuwait entity having an interest in
the accounts.
(b) For purposes of this section, the term ''interest-bearing
account'' means a blocked account in a U.S. financial institution
earning interest at rates that are commercially reasonable for the
amount of funds in the account. Except as otherwise authorized, the
funds may not be invested or held in instruments the maturity of which
exceeds 90 days, unless such investments are readily marketable and are
purchased at the direction of the Government of Kuwait.
(c) This section does not apply to blocked tangible property, such as
chattels, nor does it create an affirmative obligation on the part of
the holder of such blocked tangible property to sell or liquidate the
property and put the proceeds in a blocked account. However, the Office
of Foreign Assets Control may issue licenses permitting or directing
sales of tangible property in appropriate cases.
31 CFR 570.204 Prohibited importation of goods or services from Kuwait.
Except as otherwise authorized, no goods or services of Kuwaiti
origin may be imported into the United States, nor may any U.S. person
engage in any activity that promotes or is intended to promote such
importation.
31 CFR 570.205 Prohibited exportation and reexportation of goods,
technology, or services to Kuwait.
Except as otherwise authorized, no goods, technology (including
technical data or other information), or services may be exported from
the United States, or, if subject to U.S. jurisdiction, exported or
reexported from a third country to Kuwait, to any entity owned or
controlled by the Government of Kuwait, or to any entity operated from
Kuwait, except donated foodstuffs in humanitarian circumstances, and
donated supplies intended strictly for medical purposes, the exportation
of which has been specifically licensed pursuant to 570.507, 570.520
or 570.521.
(55 FR 49857, Nov. 30, 1990, as amended at 56 FR 5351, Feb. 11, 1991)
31 CFR 570.206 Prohibited dealing in property.
Except as otherwise authorized, no U.S. person may deal in property
of Kuwaiti origin exported from Kuwait or Iraq after August 6, 1990,
property intended for exportation to Kuwait, or property intended for
exportation from Kuwait to any other country, nor may any U.S. person
engage in any activity that promotes or is intended to promote such
dealing.
31 CFR 570.207 Prohibited transactions relating to travel to Kuwait or
to activities within Kuwait.
Except as otherwise authorized, no U.S. person may engage in any
transaction relating to travel by any U.S. citizen or permanent resident
alien to Kuwait, or to activities by any U.S. citizen or permanent
resident alien within Kuwait, or to activities by any U.S. citizen or
permanent resident alien within Kuwait, after the effective date, other
than transactions:
(a) Necessary to effect the departure of a U.S. citizen or permanent
resident alien from Kuwait or Iraq;
(b) Relating to travel and activities for the conduct of the official
business of the United States Government or the United Nations; or
(c) Relating to journalistic activity by persons regularly employed
in such capacity by a newsgathering organization.
This section prohibits the unauthorized payment by a U.S. person of
his or her own travel or living expenses to or within Kuwait.
31 CFR 570.208 Prohibited transportation-related transactions involving
Kuwait.
Except as otherwise authorized, the following are prohibited:
(a) Any transaction by a U.S. person relating to transportation to or
from Kuwait;
(b) The provision of transportation to or from the United States by
any Kuwaiti person or any vessel or aircraft of Kuwaiti registration;
or
(c) The sale in the United States by any person holding authority
under the Federal Aviation Act of any transportation by air which
includes any stop in Kuwait.
(d) Example: Unless licensed or exempted, no U.S. person may insure,
or provide ticketing, ground, port, refueling, bunkering, clearance, or
freight forwarding services, with respect to any sea, ground, or air
transportation the destination of which is Kuwait, or which is intended
to make a stop in Kuwait.
31 CFR 570.209 Prohibited performance of contracts.
Except as otherwise authorized, no U.S. person may perform any
contract, including a financing contract, in support of an industrial,
commercial, public utility, or governmental project in Kuwait.
31 CFR 570.210 Prohibited transfer of funds to the Government of Kuwait
or any person in Kuwait.
Except as otherwise authorized, no U.S. person may commit or
transfer, directly or indirectly, funds or other financial or economic
resources to the Government of Kuwait or any person in Kuwait.
31 CFR 570.211 Evasions; attempts; conspiracies.
Any transaction for the purpose of, or which has the effect of,
evading or avoiding, or which facilitates the evasion or avoidance of,
any of the prohibitions set forth in this subpart, is hereby prohibited.
Any attempt to violate the prohibitions set forth in this part is
hereby prohibited. Any conspiracy formed for the purpose of engaging in
a transaction prohibited by this part is hereby prohibited.
31 CFR 570.212 Effective date.
The effective dates of the prohibitions and directives contained in
this subpart B are as follows:
(a) With respect to 570.201, 574.202, and 570.211, 5 a.m., Eastern
Daylight Time (''EDT''), August 2, 1990;
(b) With respect to 570.204, 570.205, 570.206, 570.207, 570.208,
570.209, and 570.210, 8:55 p.m. EDT, August 9, 1990; and
(c) With respect to 570.203, November 30, 1990.
31 CFR 570.212 Subpart C -- General Definitions
31 CFR 570.301 Blocked account; blocked property.
The terms blocked account and blocked property shall mean any account
or property in which the Government of Kuwait has an interest, with
respect to which payments, transfers, exportations, withdrawals, or
other dealings may not be made or effected except pursuant to an
authorization or license from the Office of Foreign Assets Control
authorizing such action.
(55 FR 49857, Nov. 30, 1990, as amended at 56 FR 5352, Feb. 11, 1991)
31 CFR 570.302 Effective date.
The term effective date refers to the effective date of the
applicable prohibition, as identified in 570.212.
31 CFR 570.303 Entity.
The term entity includes a corporation, partnership, association, or
other organization.
31 CFR 570.304 Entity of the Government of Kuwait; Kuwaiti Government
entity.
The term entity of the Government of Kuwait or Kuwaiti Government
entity includes:
(a) Any corporation, partnership, association, or other entity in
which the Government of Kuwait owns a majority or controlling interest,
any entity managed or funded by that government, or any entity which is
otherwise controlled by that government;
(b) Any agency or instrumentality of the Government of Kuwait,
including the Central Bank of Kuwait.
31 CFR 570.305 General license.
The term general license means any license or authorization the terms
of which are set forth in this part.
31 CFR 570.306 Government of Iraq.
The term Government of Iraq includes:
(a) The state and the Government of Iraq, as well as any political
subdivision, agency, or instrumentality thereof, including the Central
Bank of Iraq;
(b) Any partnership, association, corporation, or other organization
substantially owned or controlled by the foregoing;
(c) Any person to the extent that such person is, or has been, or to
the extent that there is reasonable cause to believe that such person
is, or has been, since the effective date, acting or purporting to act
directly or indirectly on behalf of any of the foregoing; and
(d) Any other person or organization determined by the Director of
the Office of Foreign Assets Control to be included within this section.
31 CFR 570.307 Government of Kuwait.
The term Government of Kuwait includes:
(a) The state and the Government of Kuwait and any entity purporting
to be the Government of Kuwait, as well as any political subdivision,
agency, or instrumentality thereof, including the Central Bank of
Kuwait;
(b) Any partnership, association, corporation, or other organization
substantially owned or controlled by the foregoing;
(c) Any person to the extent that such person is or has been, or to
the extent that there is reasonable cause to believe that such person is
or has been, since the effective date, acting or purporting to act
directly or indirectly on behalf of any of the foregoing; and
(d) Any other person or organization determined by the Director of
the Office of Foreign Assets Control to be included within this section.
31 CFR 570.308 Interest.
Except as otherwise provided in this part, the term interest when
used with respect to property (e.g., ''an interest in property'') means
an interest of any nature whatsoever, direct or indirect.
31 CFR 570.309 Iraq; Iraqi.
The term Iraq means the country of Iraq and any territory under the
jurisdiction or authority thereof, legal or illegal. The term Iraqi
means pertaining to Iraq as defined in this section.
31 CFR 570.310 Kuwait; Kuwaiti.
The term Kuwait means the country of Kuwait and any territory under
the jurisdiction or authority thereof. The term Kuwaiti means
pertaining to Kuwait as defined in this section.
31 CFR 570.311 Kuwaiti origin.
The term goods or services of Kuwaiti origin includes:
(a) Goods produced, manufactured, grown, or processed within Kuwait;
(b) Goods which have entered into Kuwaiti commerce;
(c) Services performed in Kuwait or by a Kuwaiti national who is
acting as an agent, employee, or contractor of the Government of Kuwait,
or of a business entity located in Kuwait. Services of Kuwaiti origin
are not imported into the United States when such services are provided
in the United States by a Kuwaiti national employed in the United
States.
31 CFR 570.312 Kuwaiti person.
The term Kuwaiti person means any Kuwaiti citizen, any person
organized under the laws of Kuwait, or any person owned or controlled,
directly or indirectly, by a Kuwaiti national or the Government of
Kuwait.
31 CFR 570.313 License.
Except as otherwise specified, the term license means any license or
authorization contained in or issued pursuant to this part.
31 CFR 570.314 Person.
The term person means an individual, partnership, association,
corporation, or other organization.
31 CFR 570.315 Property; property interest.
The terms property and property interest include, but are not limited
to, money, checks, drafts, bullion, bank deposits, savings accounts,
debts, indebtedness, obligations, notes, debentures, stocks, bonds,
coupons, any other financial instruments, banker's acceptances,
mortgages, pledges, liens or other rights in the nature of security,
warehouse receipts, bills of lading, trust receipts, bills of sale, any
other evidences of title, ownership or indebtedness, letters of credit
and any documents relating to any rights or obligations thereunder,
powers of attorney, goods, wares, merchandise, chattels, stocks on hand,
ships, goods on ships, real estate mortgages, deeds of trust, vendor's
sales agreements, land contracts, leaseholds, ground rents, real estate
and any other interest therein, options, negotiable instruments, trade
acceptances, royalties, book accounts, accounts payable, judgments,
patents, trademarks, or copyrights, insurance policies, safe deposit
boxes and their contents, annuities, pooling agreements, services of any
nature whatsoever, contracts of any nature whatsoever, and any other
property, real, personal, or mixed, tangible or intangible, or interest
or interests therein, present, future or contingent.
31 CFR 570.316 Specific license.
The term specific license means any license or authorization not set
forth in this part but issued pursuant to this part in response to an
application.
31 CFR 570.317 Transfer.
The term transfer means any actual or purported act or transaction,
whether or not evidenced by writing, and whether or not done or
performed within the United States, the purpose, intent, or effect of
which is to create, surrender, release, convey, transfer, or alter,
directly or indirectly, any right, remedy, power, privilege, or interest
with respect to any property and, without limitation upon the foregoing,
shall include the making, execution, or delivery of any assignment,
power, conveyance, check, declaration, deed, deed of trust, power of
attorney, power of appointment, bill of sale, mortgage, receipt,
agreement, contract, certificate, gift, sale, affidavit, or statement;
the appointment of any agent, trustee, or fiduciary; the creation or
transfer of any lien; the issuance, docketing, filing, or the levy of
or under any judgment, decree, attachment, injunction, execution, or
other judicial or administrative process or order, or the service of any
garnishment; the acquisition of any interest of any nature whatsoever
by reason of a judgment or decree of any foreign country; the
fulfillment of any condition, the exercise of any power of appointment,
power of attorney, or other power; or the acquisition, disposition,
transportation, importation, exportation, or withdrawal of any security.
31 CFR 570.318 UNSC Resolution 661.
The term UNSC Resolution 661 means United Nations Security Council
Resolution No. 661, adopted August 6, 1990, prohibiting certain
transactions with respect to Iraq and Kuwait.
31 CFR 570.319 United States.
The term United States means the United States, its territories and
possessions, and all areas under the jurisdiction or authority thereof.
31 CFR 570.320 U.S. financial institution.
The term U.S. financial institution means any U.S. person (including
foreign branches) that is engaged in the business of accepting deposits,
making, granting, transferring, holding, or brokering loans or credits,
or purchasing or selling foreign exchange, securities, commodity futures
or options, or procuring purchasers and sellers thereof, as principal or
agent; including, but not limited to, depository institutions, banks,
savings banks, trust companies, securities brokers and dealers,
commodity futures and options brokers and dealers, forward contract and
foreign exchange merchants, securities and commodities exchanges,
clearing corporations, investment companies, employee benefit plans, and
U.S. holding companies, U.S. affiliates, or U.S. subsidiaries of any of
the foregoing. This term includes those branches, offices and agencies
of foreign financial institutions which are located in the United
States, but not such institutions' foreign branches, offices, or
agencies.
31 CFR 570.321 United States person; U.S. person.
The term United States person or U.S. person means any United States
citizen; permanent resident alien; juridical person organized under
the laws of the United States or any jurisdiction within the United
States, including foreign branches; or any person in the United States.
31 CFR 570.321 Subpart D -- Interpretations
31 CFR 570.401 Reference to amended sections.
Except as otherwise specified, reference to any section of this part
or to any regulation, ruling, order, instruction, direction, or license
issued pursuant to this part shall be deemed to refer to the same as
currently amended.
31 CFR 570.402 Effect of amendment.
Any amendment, modification, or revocation of any section of this
part or of any order, regulation, ruling, instruction, or license issued
by or under the direction of the Director of the Office of Foreign
Assets Control shall not, unless otherwise specifically provided, be
deemed to affect any act done or omitted to be done, or any civil or
criminal suit or proceeding commenced or pending prior to such
amendment, modification, or revocation. All penalties, forfeitures, and
liabilities under any such order, regulation, ruling, instruction, or
license shall continue and may be enforced as if such amendment,
modification, or revocation had not been made.
31 CFR 570.403 Termination and acquisition of an interest of the
Government of Kuwait.
(a) Whenever a transaction licensed or authorized by or pursuant to
this part results in the transfer of property (including any property
interest) from the Government of Kuwait, such property shall no longer
be deemed to be property in which the Government of Kuwait has or has
had an interest unless there exists in the property another such
interest, the transfer of which has not been effected pursuant to
license or other authorization.
(b) Unless otherwise specifically provided in a license or
authorization issued pursuant to this part, if property (including any
property interest) is transferred or attempted to be transferred to the
Government of Kuwait, such property shall be deemed to be property in
which there exists an interest of the Government of Kuwait.
31 CFR 570.404 Payments from blocked accounts to U.S. exporters and for
other obligations prohibited.
No debits may be made to a blocked account to pay obligations to U.S.
persons or other persons, including payment for goods, technology or
services exported prior to the effective date, except as authorized
pursuant to this part.
31 CFR 570.405 Acquisition of instruments including bankers
acceptances.
No U.S. person may acquire or deal in any obligation, including
bankers acceptances, where the documents evidencing the obligation
indicate, or the U.S. person has actual knowledge, that the underlying
transaction is in violation of 570.201, 570.204, or 570.205. This
interpretation does not apply to obligations arising from an underlying
transaction licensed or otherwise authorized pursuant to this part.
31 CFR 570.406 Extensions of credits or loans to Kuwait.
(a) The prohibition in 570.210 applies to the unlicensed renewal of
credits or loans in existence on the effective date, whether by
affirmative action or operation of law.
(b) The prohibition in 570.210 applies to credits or loans extended
in any currency.
31 CFR 570.407 Payments in connection with certain authorized
transactions.
Payments are authorized in connection with transactions authorized in
or pursuant to subpart E.
31 CFR 570.408 Offshore transactions.
(a) The prohibitions contained in 570.201 and 570.206 apply to
transactions by U.S. persons in locations outside the United States with
respect to property in which the U.S. person knows, or has reason to
know, that the Government of Kuwait has or has had an interest since the
effective date.
(b) Prohibited transactions include, but are not limited to,
importation into locations outside the United States of, or dealings
within such locations in, goods or services of Kuwaiti origin.
(c) Examples: (1) A U.S. person may not, within the United States or
abroad, purchase, sell, finance, insure, transport, act as a broker for
the sale or transport of, or otherwise deal in, Kuwaiti crude oil or
petroleum products refined in Kuwait.
(2) A U.S. person may not, within the United States or abroad,
conduct transactions of any nature whatsoever with an entity that he
knows or has reason to know is a Kuwaiti Government entity unless the
entity is licensed by the Office of Foreign Assets Control to conduct
such transactions with U.S. persons.
(55 FR 49857, Nov. 30, 1990, as amended at 56 FR 5352, Feb. 11, 1991)
31 CFR 570.409 Transshipments through the United States prohibited.
(a) The prohibitions in 570.205 apply to the importation into the
United States, for transshipment or transit, of goods which are intended
or destined for Kuwait, or an entity operated from Kuwait.
(b) The prohibitions in 570.204 apply to the importation into the
United States, for transshipment or transit, of goods of Kuwaiti origin
which are intended or destined for third countries.
(c) Goods in which the Government of Kuwait has an interest which are
imported into or transshipped through the United States are blocked
pursuant to 570.201.
31 CFR 570.410 Imports of Kuwaiti goods from third countries.
(a) Importation into the United States from third countries of goods,
including refined petroleum products, containing raw materials or
components of Kuwaiti origin is prohibited unless those raw minerals or
components were exported from Iraq or Kuwait prior to the effective
date. In light of the universal prohibition in UNSC Resolution 661 on
the importation of goods exported from Iraq or Kuwait after August 6,
1990, substantial transformation of Kuwaiti-origin goods in a third
country does not exempt the third-country products from the prohibitions
contained in this part.
(b) Importation into the United States of goods of Kuwaiti origin
which were exported from Kuwait or Iraq on or after the effective date
is prohibited pursuant to 570.204.
31 CFR 570.411 Exports to third countries.
(a) Exportation of goods or technology (including technical data and
other information) from the United States to third countries is
prohibited if the exporter knows, or has reason to know, that the goods
or technology are intended for transshipment to Kuwait (including
passage through, or storage in, intermediate destinations) without
coming to rest in the third country and without being substantially
transformed or incorporated into manufactured products in a third
country. The exportation of goods and technology intended specifically
for incorporation or substantial transformation into a third-country
product is also prohibited if the particular product is to be used in
Kuwait, is being specifically manufactured to fill a Kuwaiti order, or
if the manufacturer's sales of the particular product are predominantly
to Kuwait.
(b) Exportation of goods or technology from the United States to
third countries is not prohibited where the exporter has reasonable
cause to believe that:
(1) The goods will come to rest in a third country for purposes other
than reexportation to Kuwait; or
(2) The technology will come to rest in a third country for purposes
other than reexport to Kuwait.
31 CFR 570.412 Release of Kuwaiti goods from bonded warehouse or
foreign trade zone.
Section 570.204 does not prohibit the release from a bonded warehouse
or a foreign trade zone of goods of Kuwaiti origin imported into a
bonded warehouse or a foreign trade zone either prior to the effective
date or in a transaction authorized pursuant to this part after the
effective date.
Note: Pursuant to 570.201, property in which the Government of
Kuwait has an interest may not be released unless authorized or licensed
by the Office of Foreign Assets Control.
31 CFR 570.413 Goods intended for export to Kuwait.
The prohibitions contained in 570.201 do not apply to goods
manufactured, consigned, or destined for export to Kuwait and not
subject to 575.518, if the Government of Kuwait has never held or
received title to such goods on or after the effective date, and if any
payment received from the Government of Kuwait with respect to such
goods is placed in a blocked account in a U.S. financial institution
pursuant to 575.503.
31 CFR 570.414 Imports of Kuwait goods and purchases of goods from
Kuwait.
The prohibitions contained in 570.201 shall not apply to the
importation of Kuwaiti-origin goods and services described in 570.204
if the importation of such goods is permitted by an authorization or
license issued pursuant to this part. However, any payments in
connection with such importation are subject to the prohibitions
contained in 570.201 and 570.210.
31 CFR 570.415 Setoffs prohibited.
A setoff against a blocked account, whether by a U.S. bank or other
U.S. person, is a prohibited transfer under 570.201 if effected after
the effective date.
31 CFR 570.416 Travel transactions for journalistic activity in Kuwait.
(a) Section 570.207 does not prohibit travel transactions in Kuwait
by persons regularly employed in journalistic activity by recognized
newsgathering organizations.
(b) For purposes of this part:
(1) A person is considered regularly employed as a journalist if he
or she is employed in a constant or regular manner by a recognized
newsgathering organization. Free-lance journalists should have an
assignment from a recognized newsgathering organization requiring travel
to Kuwait, or be able to demonstrate that publication by a recognized
newsgathering organization of a work requiring such travel is likely.
The latter may be demonstrated by providing a resume listing
previously-published free-lance works or copies of previously-published
works.
(2) ''Recognized newsgathering organizations'' include those entities
regularly and principally engaged in collecting news for publication in
the public press, transmission by wire services, or broadcast by radio
or television.
(c) Authorized travel transactions are limited to those incident to
travel for the purpose of collecting and disseminating information for a
recognized newsgathering organization, and do not include travel
transactions related to any other activity in Kuwait.
31 CFR 570.417 Transactions among licensed entities.
If two U.S. persons controlled by the Government of Kuwait have been
granted specific licenses pursuant to this part authorizing them to
engage in transactions with U.S. persons, they may also engage in
transactions with each other. If an entity owned or controlled by the
Government of Kuwait, but which is not a U.S. person, has been granted a
specific license authorizing the entity to engage in transactions with a
U.S. person, that entity may engage in transactions with a U.S. person
controlled by the Government of Kuwait which has been licensed to
operate, provided such transactions come within the scope of authorized
transactions included in the U.S. person's operating license.
31 CFR 570.418 Transactions incidental to a licensed transaction.
(a) Any transaction ordinarily incident to a licensed transaction and
necessary to give effect thereto is also authorized, except a
transaction by an unlicensed, blocked person or involving an unlicensed
debit to a blocked account.
(b) Example: A license authorizing the Government of Kuwait to
complete a securities sale also authorizes all activities by other
parties required to complete the sale, including transactions by the
buyer, brokers, transfer agents, banks, etc.
31 CFR 570.418 Subpart E -- Licenses, Authorizations, and Statements of Licensing Policy
31 CFR 570.501 Effect of license or authorization.
(a) No license or other authorization contained in this part, or
otherwise issued by or under the direction of the Director of the Office
of Foreign Assets Control, shall be deemed to authorize or validate any
transaction effected prior to the issuance of the license, unless
specifically provided in such license or authorization.
(b) No regulation, ruling, instruction, or license authorizes any
transaction prohibited under this part unless the regulation, ruling,
instruction, or license is issued by the Office of Foreign Assets
Control and specifically refers to this part. No regulation, ruling,
instruction, or license referring to this part shall be deemed to
authorize any transaction prohibited by any provision of this chapter
unless the regulation, ruling, instruction or license specifically
refers to such provision.
(c) Any regulation, ruling, instruction, or license authorizing any
transaction otherwise prohibited under this part has the effect of
removing a prohibition or prohibitions contained in subpart B from the
transaction, but only to the extent specifically stated by its terms.
Unless the regulation, ruling, instruction, or license otherwise
specifies, such an authorization does not create any right, duty,
obligation, claim, or interest in, or with respect to, any property
which would not otherwise exist under ordinary principles of law.
31 CFR 570.502 Exclusion from licenses and authorizations.
The Director of the Office of Foreign Assets Control reserves the
right to exclude any person, property, or transaction from the operation
of any license, or from the privileges therein conferred, or to restrict
the applicability thereof with respect to particular persons, property,
transactions, or classes thereof. Such action shall be binding upon all
persons receiving actual or constructive notice of such exclusion or
restriction.
31 CFR 570.503 Payments and transfers to blocked accounts in U.S.
financial institutions.
(a) Any payment of funds or transfer of credit or other assets,
including any payment or transfer by any U.S. person outside the United
States, to a blocked account in a U.S. financial institution in the name
of the Government of Kuwait is hereby authorized, including incidental
foreign exchange transactions, provided that such payment or transfer
shall not be made from any blocked account if such payment or transfer
represents, directly or indirectly, a transfer of any interest of the
Government of Kuwait to any other country or person.
(b) This section does not authorize any payment or transfer to any
blocked account held in a name other than that of the Government of
Kuwait where such government is the ultimate beneficiary of such payment
or transfer.
(c) This section does not authorize any payment or transfer of credit
comprising an integral part of a transaction which cannot be effected
without the subsequent issuance of a further license.
(d) This section does not authorize the crediting of the proceeds of
the sale of securities or other assets, held in a blocked account or a
sub-account thereof, or the income derived from such securities or
assets, to a blocked account or sub-account, under any name or
designation which differs from the name or designation of the specific
blocked account or sub-account in which such securities or assets were
or are held.
(e) This section does not authorize any payment or transfer from a
blocked account in a U.S. financial institution to a blocked account
held under any name or designation which differs from the name or
designation of the specified blocked account or sub-account from which
the payment or transfer is made.
(f) The authorization in paragraph (a) of this section is subject to
the condition that written notification from the U.S. financial
institution receiving an authorized payment or transfer is furnished to
the Office of Foreign Assets Control, Blocked Assets Section, within 10
business days from the date of payment or transfer. This notification
shall confirm that the payment or transfer has been deposited in a
blocked account under the regulations in this part, and shall provide
the account number, the name and address of the Government of Kuwait
entity in whose name the account is held, the name and address of the
transferee U.S. financial institution, and the amount of the payment or
transfer.
(g) This section authorizes transfer of the funds of a blocked demand
deposit account to a blocked interest-bearing account under the same
name or designation as was the demand deposit account, as required
pursuant to 570.203 or at the instruction of the depositor, at any
time. If such transfer is to a blocked account in a different U.S.
financial institution, the transferee financial institution must
furnish, within 10 business days of the date of transfer, the
notification described in paragraph (f) of this section to the Office of
Foreign Assets Control, Blocked Assets Section.
(h) This section authorizes the transfer of assets between blocked
accounts in U.S. financial institutions at the instruction of the
depositor for purposes of investment and reinvestment of assets in which
the Government of Kuwait has an interest, as authorized in 570.512. If
such transfer is to a blocked account in a different U.S. financial
institution, the transferee financial institution must furnish, within
10 business days of the date of transfer, the notification described in
paragraph (f) of this section to the Office of Foreign Assets Control,
Blocked Assets Section.
31 CFR 570.504 Completion of certain foreign exchange, securities, and
commodities transactions.
(a) U.S. financial institutions are authorized to perform and
complete in accordance with its terms or, in agreement with the
Government of Kuwait, to close out, offset, or liquidate, individually
or on a net basis with subcontracts or other contracts, any contract
with or on behalf of the Government of Kuwait, except as otherwise noted
in paragraph (d) below, for foreign exchange, securities, currency, and
interest rate transactions (including, without limitation, spot,
forward, option, swap, and futures transactions), and commodity option,
swap, and futures transactions (including the posting or payment of
margin or settlement variation with respect to transactions described
above), provided the contract was entered into prior to the effective
date and any of the following requirements is met:
(1) Any funds, currency, securities, or other assets to be paid or
delivered to the Government of Kuwait are credited to a blocked account
in a U.S. financial institution, in the name of the entity of the
Government of Kuwait with which, or on whose behalf, the transaction was
executed; or
(2) Any funds, currency, securities, or other assets to be paid or
delivered to the Government of Kuwait are credited to a blocked account
in the name of the entity of the Government of Kuwait and in the
financial institution and location designated in the original payment
instructions or terms of settlement or delivery for that contract;
provided that the country in which payment, settlement, or delivery
occurs has in place an arrangement satisfactory to the Office of Foreign
Assets Control for ensuring that Government of Kuwait assets in such
accounts are blocked or restricted; or
(3) All funds, currency, securities, or other assets due to the
Government of Kuwait in connection with such transaction were paid or
delivered to the Government of Kuwait prior to the effective date.
(b) All transactions by U.S. persons incidental to the transactions
authorized in paragraph (a) are also authorized.
(c) This section does not authorize the crediting of the funds,
currency, securities, or other assets received by, or for the benefit
of, the Government of Kuwait in a transaction authorized in paragraph
(a) to a blocked account or sub-account for the Government of Kuwait
under any name or designation which differs from the name or designation
of the specific blocked account or sub-account in which the assets
utilized by, or on behalf of, the Government of Kuwait in such
transaction, were originally held.
(55 FR 49857, Nov. 30, 1990, as amended at 56 FR 5352, Feb. 11, 1991)
31 CFR 570.505 Completion of certain transactions related to bankers
acceptances authorized.
(a) Persons other than the Government of Kuwait are authorized to
buy, sell, and satisfy obligations with respect to bankers acceptances,
and to pay under deferred payment undertakings, involving an interest of
the Government of Kuwait as long as the bankers acceptances were created
or the deferred payment undertakings were incurred prior to the
effective date.
(b) Persons other than the Government of Kuwait are authorized to
buy, sell, and satisfy obligations with respect to bankers acceptances,
and to pay under deferred payment undertakings, involving the
importation or exportation of goods to or from Kuwait that do not
involve an interest of the Government of Kuwait as long as the bankers
acceptances or the deferred payment undertakings were accepted prior to
the effective date.
(c) Nothing in this section shall authorize or permit a debit to a
blocked account. Specific licenses for the debiting of a blocked
account may be issued on a case-by-case basis.
31 CFR 570.506 Payment by the Government of Kuwait of obligations to
persons within the United States authorized.
(a) The transfer of funds after the effective date by, through, or to
any U.S. financial institution or other U.S. person solely for the
purpose of payment of obligations of the Government of Kuwait to persons
or accounts within the United States is authorized, provided that the
obligation arose prior to the effective date, and the payment requires
no debit to a blocked account. Property is not blocked by virtue of
being transferred or received pursuant to this section.
(b) A person receiving payment under this section may distribute all
or part of that payment to any person, provided that any such payment to
the Government of Kuwait must be to a blocked account in a U.S.
financial institution.
31 CFR 570.507 Certain exports to Kuwait authorized.
(a) All transactions ordinarily incident to the exportation of any
item, commodity, or product from the United States to or destined for
Kuwait are authorized if:
(1) Such exports would ordinarily be authorized under one of the
following regulations administered by the Department of Commerce: 15
CFR 771.6 -- General license BAGGAGE (accompanied and unaccompanied
baggage); 15 CFR 771.13 -- General license GUS (shipments to personnel
and agencies of the U.S. Government); or,
(2) Such exports are for the official use of the United Nations, its
personnel and agencies (excluding its relief or developmental agencies).
(b) All transactions related to exportation or reexportation not
otherwise authorized in this part are prohibited unless licensed
pursuant to the procedures described in 570.801 by the Office of
Foreign Assets Control.
(55 FR 49857, Nov. 30, 1990, as amended at 56 FR 5352, Feb. 11, 1991)
31 CFR 570.508 Import of household and personal effects from Kuwait
authorized.
The importation of household and personal effects of Kuwaiti origin,
including baggage and articles for family use, of persons arriving in
the United States directly or indirectly from Kuwait is authorized.
Articles included in such effects may be imported without limitation
provided they were actually used by such persons or their family members
abroad, are not intended for any other person or for sale, and are not
otherwise prohibited from importation.
31 CFR 570.509 Payments and transfers authorized for shipments of oil
under contract and en route to the United States prior to the effective
date.
(a) Oil of Kuwaiti origin or oil in which the Government of Kuwait
has an interest may be imported into the United States only if:
(1) Prior to the effective date, the oil was loaded for ultimate
delivery to the United States on board a vessel in Iraq, Kuwait, or a
third country;
(2) The oil was imported into the United States before 11:59 p.m.
Eastern Daylight Time, October 1, 1990; and
(3) The bill of lading accompanying the oil was issued prior to the
effective date.
(b) Any payment owed or balance not paid to or for the benefit of the
Government of Kuwait prior to the effective date for oil imported
pursuant to paragraph (a) must be paid into a blocked account in a U.S.
financial institution.
(c) Transactions conducted pursuant to this section must be reported
in writing to the Office of Foreign Assets Control, Blocked Assets
Section, no later than 10 days after the date of importation.
Note: Transactions authorized by this provision have been completed
prior to November 30, 1990. The text of this section is included for
the convenience of the user.
31 CFR 570.510 Payments and transfers authorized for goods and services
exported to Kuwait prior to the effective date.
(a) Specific licenses may be issued on a case-by-case basis to permit
payment under a financing arrangement requiring payment by a U.S.
financial institution, from a blocked account or otherwise, of amounts
owed to or for the benefit of a person with respect to goods or services
exported prior to the effective date directly or indirectly to Kuwait,
or to third countries for an entity operated from Kuwait, or for the
benefit of the Government of Kuwait, where the license application
presents evidence satisfactory to the Office of Foreign Assets Control
that:
(1) The exportation occurred prior to the effective date (such
evidence may include, e.g., the bill of lading, the air waybill, the
purchaser's written confirmation of completed services, customs
documents, and insurance documents); and
(2) If delivery or performance occurred after the effective date, due
diligence was exercised to divert delivery of the goods for Kuwait and
to effect final delivery of the goods to a non-prohibited destination,
or to prevent performance of the services.
(b) This section does not authorize exportation or the performance of
services after the effective date pursuant to a contract entered into or
partially performed prior the effective date.
(c) Transactions conducted under specific licenses granted pursuant
to this section must be reported in writing to the Office of Foreign
Assets Control, Blocked Assets Section, no later than 10 days after the
date of payment.
(d) Separate criteria may be applied to the issuance of licenses
authorizing payment from an account of or held by a blocked U.S. bank
owned or controlled by the Government of Kuwait.
31 CFR 570.511 Extensions and renewals authorized.
(a) The extension or renewal, at the request of the account party, of
a letter of credit or a standby letter of credit issued or confirmed by
a U.S. financial institution is authorized.
(b) Transactions conducted pursuant to this section must be reported
to the Office of Foreign Assets Control, Blocked Assets Section, within
10 days after completion of the transaction.
31 CFR 570.512 Investment and reinvestment of Government of Kuwait
funds held in blocked accounts.
(a) U.S. financial institutions are hereby authorized to invest and
reinvest assets held in blocked accounts in the name of the Government
of Kuwait, subject to the following conditions:
(1) The assets representing such investments and reinvestments are
credited to a blocked account or sub-account which is in the name of the
Government of Kuwait and which is located in the United States or within
the possession or control of a U.S. person;
(2) The proceeds of such investments and reinvestments are not
credited to a blocked account or sub-account under any name or
designation which differs from the name or designation of the specific
blocked account or sub-account in which such funds or securities were
held; and
(3) No immediate financial or economic benefit accrues to the
Government of Iraq, or a person in Kuwait.
(b)(1) U.S. persons seeking to avail themselves of this authorization
must register with the Office of Foreign Assets Control, Blocked Assets
Section, before undertaking transactions authorized under this section.
(2) Transactions conducted pursuant to this section must be reported
to the Office of Foreign Assets Control, Blocked Assets Section, in a
report filed no later than 10 business days following the last business
day of the month in which the transactions occurred.
(55 FR 49857, Nov. 30, 1990, as amended at 56 FR 5352, Feb. 11, 1991)
31 CFR 570.513 Transactions related to telecommunications authorized.
All transactions of U.S. common carriers with respect to the receipt
and transmission of telecommunications involving Kuwait are authorized,
provided that any payment owed to the Government of Kuwait or persons in
Kuwait is paid into a blocked account in a U.S. financial institution.
31 CFR 570.514 Transactions related to mail authorized.
All transactions by U.S. persons, including payment and transfers to
common carriers, incident to the receipt or transmission of mail between
the United States and Kuwait are authorized, provided that mail is
limited to items not exceeding 12 ounces.
31 CFR 570.515 Fees for professional services authorized.
Specific licenses may be issued on a case-by-case basis to permit
payment to U.S. persons providing professional services to the
Government of Kuwait including, but not limited to, legal, accounting,
and investment advisory services.
31 CFR 570.516 Certain transactions with respect to patents,
trademarks, and copyrights authorized.
Transactions related to the registration and renewal in the United
States Patent and Trademark Office or the United States Copyright Office
of patents, trademarks, and copyrights in which the Government of Kuwait
or a person in Kuwait has an interest are authorized.
31 CFR 570.517 Procedures established for export transactions initiated
prior to effective date.
(a) Goods awaiting exportation to Kuwait on the effective date and
seized or detained by the U.S. Customs Service on the effective date or
thereafter may be released to the exporter, provided the following
documents are filed with Customs officials at the port where such goods
are located:
(1) A copy of the contract governing the exportation (sale or other
transfer) of the goods to Kuwait or, if no contract exists, a written
explanation of the circumstances of exportation, including in either
case a description of the manner and terms of payment received or to be
received by the exporter (or other person) for, or by reason of, the
exportation of the goods;
(2) An invoice, bill of lading, or other documentation fully
describing the goods; and
(3) A statement by the exporter substantially in the following form:
Any amount received from or on behalf of the Government of Kuwait by
reason of the attempted exportation of the goods released to (name of
exporter) by the U.S. Customs Service on (date), and fully described in
the attached documents, has been or will be placed into a blocked
account in a U.S. bank and the Office of Foreign Assets Control, Blocked
Assets Section, will be immediately notified. (Name of exporter) agrees
to fully indemnify the U.S. Government for any amount ultimately
determined by a court of competent jurisdiction to be due or payable to
or for the benefit of any person by reason of the failure of (name of
exporter) to properly pay into a blocked account any amount received for
the goods from or on behalf of the Government of Kuwait. (Name of
exporter) also agrees to waive all claims (1) against any payments
received and placed into a blocked account, except as may be later
authorized by law, regulations, or license, and (2) against the U.S.
Government with regard to the disposition of amounts placed into a
blocked account. The statement should be dated and signed by the
exporter or by a person authorized to sign on the exporter's behalf.
The Customs Service may release the goods to the exporter upon receipt
of the documentation and statement described above, provided it is
satisfied that all customs laws and regulations have been complied with,
including the execution of such hold harmless assurances as it shall
determine to be appropriate. The documentation and statement received
by Customs will be forwarded to the Office of Foreign Assets Control for
review and appropriate action.
31 CFR 570.518 Certain standby letters of credit and performance bonds.
(a)(1) Notwithstanding any other provision of law, payment into a
blocked account in a U.S. financial institution by an issuing or
confirming bank under a standby letter of credit in favor of a Kuwaiti
beneficiary is prohibited by 570.201 and not authorized,
notwithstanding the provisions of 570.503, if:
(i) A specific license has been issued pursuant to the provisions of
paragraph (b) of this section, or
(ii) 10 business days have not expired after notice to the account
party pursuant to paragraph (b) of this section.
(2) Nothing in this section shall affect the obligation of an issuing
or confirming bank to make payment into a blocked account on behalf of
an entity owned or controlled by the Government of Kuwait pursuant to a
standby letter of credit if such entity is:
(i) Licensed by the Office of Foreign Assets Control to transact
business with U.S. persons, or
(ii) Listed in appendix A to this part as ''Controlled/Licensed to
Operate.''
(b) Whenever an issuing or confirming bank shall receive such demand
for payment under such a standby letter of credit, it shall promptly
notify the account party. The account party may then apply within five
business days for a specific license authorizing the account party to
establish a blocked account on its books in the name of the Kuwaiti
beneficiary in the amount payable under the credit, in lieu of payment
by the issuing or confirming bank into a blocked account and
reimbursement therefor by the account party. Nothing in this section
relieves any such bank or such account party from giving any notice of
defense against payment or reimbursement that is required by applicable
law.
(c) Where there is outstanding a demand for payment under a standby
letter of credit, and the issuing or confirming bank has been enjoined
from making payment, upon removal of the injunction, the account party
may apply for a specific license for the same purpose and in the same
manner as that set forth in paragraph (b) of this section. The issuing
or confirming bank shall not make payment under the standby letter of
credit unless:
(1) 10 business days have expired since the bank has received notice
of the removal of the injunction and
(2) A specific license issued to the account party pursuant to the
provisions of this paragraph has not been presented to the bank.
(d) If necessary to assure the availability of the funds blocked, the
Director of the Office of Foreign Assets Control may at any time require
the payment of the amounts due under any letter of credit described in
paragraph (a) of this section into a blocked account in a U.S. financial
institution or the supplying of any form of security deemed necessary.
(e) Nothing in this section precludes the account party on any
standby letter of credit or any other person from at any time contesting
the legality of the demand from a Kuwaiti beneficiary or from raising
any other legal defense to payment under the standby letter of credit.
(f) This section does not affect the obligation of the various
parties to the instruments covered by this section if the instruments
and payments thereunder are subsequently unblocked.
(g) The section does not authorize any U.S. person to reimburse a
non-U.S. bank for payment to a Kuwaiti beneficiary under a standby
letter of credit, except by payments into a blocked account in
accordance with 570.503 or paragraph (b) or (c) of this section.
(h) A person receiving a specific license under paragraph (b) or (c)
of this section shall certify to the Office of Foreign Assets Control
within 5 business days after receipt of that license that it has
established the blocked account on its books as provided in those
paragraphs. However, in appropriate cases, this time period may be
extended upon application to the Office of Foreign Assets Control when
the account party has filed a petition with an appropriate court seeking
a judicial order barring payment by the issuing or confirming bank.
(i) For the purposes of this section,
(1) The term ''standby letter of credit'' shall mean a letter of
credit securing performance of, or repayment of any advance payments or
deposits under, a contract, or any similar obligation in the nature of a
performance bond;
(2) The term ''account party'' shall mean the person for whose
account the standby letter of credit is opened; and
(3) The term ''Kuwaiti beneficiary'' shall mean a beneficiary that is
(i) A person in Kuwait,
(ii) An entity operated from Kuwait, or
(iii) The Government of Kuwait.
(55 FR 49857, Nov. 30, 1990, as amended at 56 FR 5352, Feb. 11, 1991)
31 CFR 570.519 Certain imports for diplomatic or official personnel
authorized.
All transactions ordinarily incident to the importation of any goods
or services into the United States destined for official or personal use
by diplomatic and support personnel employed by the recognized
Government of Kuwait are authorized, unless the importation is otherwise
prohibited by law.
31 CFR 570.520 Donations of food to relieve human suffering authorized.
(a) Specific licenses may be issued on a case-by-case basis to permit
exportation to Kuwait of donated food intended to relieve human
suffering.
(b) In general, specific licenses will only be granted for donations
of food to be provided through the United Nations in accordance with
United Nations Security Council Resolutions 661 and 666 and in
cooperation with the International Committee of the Red Cross or other
appropriate humanitarian agencies for distribution by them or under
their supervision, or in such other manner as may be approved under
United Nations Security Council Resolution 666 and any other applicable
Security Council resolutions, in order to ensure that such donations
reach the intended beneficiaries.
(c) Applications for specific licenses pursuant to paragraph (a)
shall be made in advance of the proposed exportation, and provide the
following information:
(1) The nature, quantity, value, and intended use of the donated
food; and
(2) The terms and conditions of distribution, including the intended
method of compliance with such terms and conditions of distribution as
may have been adopted by the United Nations Security Council or a duly
authorized body subordinate thereto to govern the shipment of foodstuffs
under applicable United Nations Security Council resolutions, including
Resolutions 661 and 666.
31 CFR 570.521 Certain exportations of medical supplies authorized.
(a) Specific licenses may be issued on a case-by-case basis to permit
exportation to Kuwait of supplies intended strictly for medical
purposes, in accordance with the provisions of United Nations Security
Council Resolutions 661 and 666, and other applicable Security Council
resolutions.
(b) In general, specific licenses will only be granted for the
exportation of medical supplies through the International Committee of
the Red Cross or other appropriate humanitarian agencies for
distribution by them or under their supervision, or in such other manner
as may be approved under applicable Security Council resolutions, in
order to ensure that such supplies reach the intended recipient.
(c) Applications for specific licenses pursuant to paragraph (a)
shall be made in advance of the proposed exportation, and provide the
following information:
(1) The nature, quantity, value, and intended use of the medical
supplies;
(2) The terms and conditions of distribution, including the intended
method of compliance with such terms and conditions of distribution as
may have been adopted by the United Nations Security Council or a duly
authorized body subordinate thereto to govern the shipment of medical
supplies under applicable Security Council resolutions.
31 CFR 570.522 Authorization of certain new transactions with respect
to Kuwait.
(a) Notwithstanding the provisions of subpart B of this part,
transactions otherwise prohibited by 570.204, 570.205, 570.206,
570.207, 570.208, and 570.209 are hereby authorized on or after March 8,
1991, provided that no such transaction results in a debit to a blocked
account unless such debit is independently authorized by or pursuant to
this part.
(b) Notwithstanding the provisions of 570.201 and 570.210,
commitments and transfers to the Government of Kuwait or a person in
Kuwait otherwise prohibited by 570.210 are hereby authorized to be made
on or after March 8, 1991, provided that no such commitment or transfer
results in a debit to a blocked account unless such debit is
independently authorized by or pursuant to this part.
(c) The authorizations contained in this section do not eliminate the
need to comply with regulatory requirements not administered by the
Office of Foreign Assets Control, including export and reexport controls
administered by other federal agencies.
(56 FR 10356, Mar. 11, 1991)
31 CFR 570.523 Authorization of certain new transactions with respect
to blocked Government of Kuwait property.
(a) Nothwithstanding the provisions of 570.201, all transactions
affecting property or interests in property of the Government of Kuwait
are hereby authorized on or after March 25, 1991, except as limited by
paragraph (b) of this section.
(b) Notwithstanding the provisions of 570.201, all transactions
affecting property or interests in property of the following entities
are authorized on or after June 4, 1991: Al Ahli Bank of Kuwait, The
Bank of Kuwait & The Middle East, Burgan Bank, Commercial Bank of
Kuwait, The Gulf Bank, The Industrial Bank of Kuwait, and Kuwait Real
Estate Bank.
(56 FR 12450, Mar. 26, 1991, as amended at 56 FR 26035, June 6, 1991)
31 CFR 570.523 Subpart F -- Reports
31 CFR 570.601 Required records.
Every person engaging in any transaction subject to the provisions of
this part shall keep a full and accurate record of each such transaction
in which that person engages, regardless of whether such transaction is
effected pursuant to license or otherwise, and such record shall be
available for examination for at least 2 years after the date of such
transaction.
31 CFR 570.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, from time to time and at any time as may be
required, complete information relative to any transaction, regardless
of whether such transaction is effected pursuant to license or
otherwise, subject to the provisions of this part. Such reports may be
required to include the production of any books of account, contracts,
letters or other papers, connected with any such transaction or
property, in the custody or control of the person required to make such
reports. Reports with respect to transactions may be required either
before or after such transactions are completed. The Director of
Foreign Assets Control may, through any person or agency, conduct
investigations, hold hearings, administer oaths, examine witnesses,
receive evidence, take depositions, and require by subpoena the
attendance and testimony of witnesses and the production of all books,
papers, and documents relating to any matter under investigation,
regardless of whether any report has been required or filed in
connection therewith.
31 CFR 570.602 Subpart G -- Penalties
31 CFR 570.701 Penalties.
(a) Section 586E of the Iraq Sanctions Act of 1990, contained in the
Foreign Operations Authorization and Appropriation Act of 1990, dated
November 5, 1990, 104 Stat. 1979, provides that notwithstanding section
206 of the International Emergency Economic Powers Act (50 U.S.C. 1705)
and section 5(b) of the United Nations Participation Act of 1945 (22
U.S.C. 287c(b)) --
(1) A civil penalty of not to exceed $250,000 may be imposed on any
person who, after the enactment of this Act, violates or evades or
attempts to violate or evade Executive Order Number 12722, 12723, 12724,
12725, or any license, order, or regulation issued under such Executive
Order;
(2) Whoever after the date of enactment of the Iraq Sanctions Act
willfully violates or evades or attempts to violate or evade Executive
Order Number 12722, 12723, 12724, or 12725 or any license, order, or
regulation issued under any such Executive Order --
(i) Shall, upon conviction, be fined not more than $1,000,000 if a
person other than a natural person; or
(ii) If a natural person, shall upon conviction, be fined not more
than $1,000,000 be imprisoned for not more than 12 years, or both.
Any officer, director, or agent of any corporation who knowingly
participates in a violation, evasion, or attempt described in paragraph
(a)(2) of this section may be punished by imposition of the fine,
imprisonment (or both) specified in paragraph (a)(2)(ii) of this
section.
(b) Section 5(b) of the United Nations Participation Act of 1945 (22
U.S.C. 287c(b)) provides, in part, that any property, funds, securities,
papers, or other articles or documents, or any vessel, together with her
tackle, apparel, furniture, and equipment, or vehicle, or aircraft,
concerned in a violation, attempted violation, or evasion of any order
rule, or regulation issued by the President pursuant to Section 5(a) of
the United Nations Participation Act of 1945, shall be forfeited to the
United States.
(c) Attention is directed to 18 U.S.C. 1001, which provides:
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representation or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
(d) Violations of this part may also be subject to relevant
provisions of the Customs laws and other applicable laws.
(55 FR 49857, Nov. 30, 1990, as amended at 56 FR 5352, Feb. 11, 1991)
31 CFR 570.702 Prepenalty notice.
(a) When required: If the Director of the Office of Foreign Assets
Control has reasonable cause to believe that there has occurred a
violation of any provision of this part or a violation of the provisions
of any license, ruling, regulation, order, direction or instruction
issued by or pursuant to the direction or authorization of the Secretary
of the Treasury pursuant to this part or otherwise under the
International Emergency Economic Powers Act, and the Director determines
that further proceedings are warranted, he shall issue to the person
concerned a notice of his intent to impose a monetary penalty. The
prepenalty notice shall be issued whether or not another agency has
taken any action with respect to this matter.
(b) Contents.
(1) Facts of violation. The prepenalty notice shall describe the
violation, specify the laws and regulations allegedly violated, and
state the amount of the proposed monetary penalty.
(2) Right to make presentations. The prepenalty notice also shall
inform the person of his right to make a written presentation within 30
days of mailing of the notice as to why a monetary penalty should not be
imposed, or, if imposed, why it should be in a lesser amount than
proposed.
31 CFR 570.703 Presentation responding to prepenalty notice.
(a) Time within which to respond. The named person shall have 30
days from the date of mailing of the prepenalty notice to make a written
presentation to the Director.
(b) Form and contents of written presentation. The written
presentation need not be in any particular form, but shall contain
information sufficient to indicate that it is in response to the
prepenalty notice. It should contain responses to the allegations in
the prepenalty notice and set forth the reasons why the person believes
the penalty should not be imposed or, if imposed, why it should be in a
lesser amount than proposed.
31 CFR 570.704 Penalty notice.
(a) No violation. If, after considering any presentations made in
response to the prepenalty notice and any relevant facts, the Director
determines that there was no violation by the person named in the
prepenalty notice, he promptly shall notify the person in writing of
that determination and that no monetary penalty will be imposed.
(b) Violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was a violation by the person named in the prepenalty notice, he
promptly shall issue a written notice of the imposition of the monetary
penalty to that person.
31 CFR 570.705 Referral to United States Department of Justice.
In the event that the person named does not pay the penalty imposed
pursuant to this subpart or make payment arrangements acceptable to the
Director within 30 days of the mailing of the written notice of the
imposition of the penalty, the matter shall be referred to the United
States Department of Justice for appropriate action to recover the
penalty in a civil suit in a Federal district court.
31 CFR 570.705 Subpart H -- Procedures
31 CFR 570.801 Licensing.
(a) General licenses. General licenses have been issued authorizing
under appropriate terms and conditions certain types of transactions
which are subject to the prohibitions contained in subpart B of this
part. All such licenses in effect on the date of publication are set
forth in subpart E of this part. It is the policy of the Office of
Foreign Assets Control not to grant applications for specific licenses
authorizing transactions to which the provisions of an outstanding
general license are applicable. Persons availing themselves of certain
general licenses may be required to file reports and statements in
accordance with the instructions specified in those licenses. Failure
to file such reports or statements will nullify the authority of the
general license.
(b) Specific licenses.
(1) General course of procedure. Transactions subject to the
prohibitions contained in subpart B of this part which are not
authorized by general license may be effected only under specific
licenses.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transactions prohibited by or pursuant to this
part may be filed by letter or with the Office of Foreign Assets
Control. Any person having an interest in a transaction or proposed
transaction may file an application for a license authorizing such
transaction, but the applicant for a specific license is required to
make full disclosure of all parties in interest to the transaction so
that a decision on the application may be made with full knowledge of
all relevant facts and so that the identity and location of the persons
who know about the transaction may be easily ascertained in the event of
inquiry.
(3) Information to be supplied. The applicant must supply all
information specified by relevant instructions, and must fully disclose
the names of all the parties who are concerned with or interested in the
proposed transaction. If the application is filed by an agent, the
agent must disclose the name of his principal(s). Such documents as may
be relevant shall be attached to each application as a part of such
application except that documents previously filed with the Office of
Foreign Assets Control may, where appropriate, be incorporated by
reference. Applicants may be required to furnish such further
information as is deemed necessary to a proper determination by the
Office of Foreign Assets Control. If an applicant or other party in
interest desires to present additional information or discuss or argue
the application, he may do so at any time before or after decision.
Arrangements for oral presentation should be made with the Office of
Foreign Assets Control.
(4) Effect of denial. The denial of a license does not preclude the
reopening of an application or the filing of a further application. The
applicant or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition for the issuance
of any license, the licensee may be required to file reports with
respect to the transaction covered by the license, in such form and at
such times and places as may be prescribed in the license or otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the Treasury
or licenses may be issued by the Secretary of the Treasury acting
directly or through any specifically designated person, agency, or
instrumentality.
(c) Address. License applications, reports, and inquiries should be
addressed to the appropriate section or individual within the Office of
Foreign Assets Control, or to its Director, at the following address:
Office of Foreign Assets Control, U.S. Department of the Treasury,
1500 Pennsylvania Avenue, NW., Annex, Washington, DC 20220.
(55 FR 49857, Nov. 30, 1990, as amended at 56 FR 5352, Feb. 11, 1991)
31 CFR 570.802 Decisions.
The Office of Foreign Assets Control will advise each applicant of
the decision respecting filed applications. The decision of the Office
of Foreign Assets Control acting on behalf of the Secretary of the
Treasury with respect to an application shall constitute final agency
action.
31 CFR 570.803 Amendment, modification, or revocation.
The provisions of this part and any rulings, licenses, whether
general or specific, authorizations, instructions, orders, or forms
issued hereunder may be amended, modified, or revoked at any time.
31 CFR 570.804 Rulemaking.
(a) All rules and other public documents are issued by the Secretary
of the Treasury upon recommendation of the Director of the Office of
Foreign Assets Control. In general, rulemaking by the Office of Foreign
Assets Control involves foreign affairs functions of the United States,
and for that reason is exempt from the requirements under the
Administrative Procedure Act (5 U.S.C. 553) for notice of proposed
rulemaking, opportunity for public comment, and delay in effective date.
Wherever possible, however, it is the practice of the Office of Foreign
Assets Control to receive written submissions or hold informal
consultations with interested parties before the issuance of any rule or
other public document.
(b) Any interested person may petition the Director of the Office of
Foreign Assets Control in writing for the issuance, amendment, or repeal
of any rule.
31 CFR 570.805 Delegation by the Secretary of the Treasury.
Any action which the Secretary of the Treasury is authorized to take
pursuant to Executive Order No. 12723 and Executive Order No. 12725
may be taken by the Director, Office of Foreign Assets Control, or by
any other person to whom the Secretary of the Treasury has delegated
authority so to act.
31 CFR 570.806 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control which are
required by 5 U.S.C. 552 to be made available to the public shall be
made available in accordance with the definitions, procedures, payment
of fees, and other provisions of the regulations on the Disclosure of
Records of the Office of the Secretary and of other bureaus and offices
of the Department issued under 5 U.S.C. 552 and published as part 1 of
this title 31 of the Code of Federal Regulations.
(b) Any form issued for use in connection with the Kuwaiti Assets
Control Regulations may be obtained in person or by writing to the
Office of Foreign Assets Control, U.S. Department of the Treasury, 1500
Pennsylvania Avenue, NW., Annex, Washington, DC 20220, or by calling
(202) 566-2701.
31 CFR 570.806 Subpart I -- Paperwork Reduction Act
31 CFR 570.901 Paperwork Reduction Act Notice.
The information collection requirements in 570.202(d), 570.503,
570.509-570.512, 570.517, 570.518, 570.520, 570.521, 570.601, 570.602,
570.603, 570.703, and 570.801 have been approved by the Office of
Management and Budget and assigned control number 1505-0127.
(56 FR 5352, Feb. 11, 1991)
31 CFR 570.901 Pt. 570, App. A
31 CFR 570.901 Appendix A to Part 570 -- Kuwaiti Governmental Entities
The Treasury Department has been asked about the status of various
entities in which the Government of Kuwait or Kuwaiti nationals may have
an interest for purposes of Executive Order Nos. 12722-12725. Based on
information available to the Office of Foreign Assets Control, the
following lists have been compiled.
The entities listed as ''Controlled/Blocked'' have been determined to
be controlled by the Government of Kuwait and/or the Government of Iraq
and should be regarded as blocked entities. This means U.S. persons
are prohibited from engaging in transactions with these entities and all
assets under U.S. jurisdiction owned or controlled by those entities are
blocked. U.S. persons are not prohibited, however, from paying funds
owed to these entities into blocked accounts held in U.S. financial
institutions.
The entities listed as ''Controlled/Licensed to Operate'' should also
be regarded as controlled by the Government of Kuwait, but as licensed
to operate. This means the Office of Foreign Assets Control has
determined that the entities are under the effective control of the
recognized Government of Kuwait and U.S. persons are authorized to
engage in transactions with them. These authorized transactions include
entering into contracts, making and receiving payments, and conducting
other commercial or financial transactions. If questions arise, U.S.
persons should request from the entities concerned to see copies of the
operating licenses.
The entities listed as ''Not Controlled/No Restrictions'' are not
regarded by the Office of Foreign Assets Control as controlled by the
Government of Kuwait. The names of these entities appear on the list
solely for the purpose of clarification because requests regarding their
status have been received. Some of the entities on this list may be
subject to special Treasury Department licensing or reporting
requirements.
Warning: These lists are subject to revision should new information
become available, and are not inclusive. Additions to the lists are
anticipated. The absence of a particular entity from any of the lists
should not be regarded as indicative of whether the entity is owned or
controlled by the Government of Kuwait or the Government of Iraq.
AlAhli Bank of Kuwait
AlAhli Insurance Company
Arab Fund for Economic and Social Development
Arab Trust Company
Bahrain Arab International Bank
Bank of Kuwait & Middle East
Burgan Bank
Central Bank of Kuwait
Commercial Bank of Kuwait
Commercial Facilities Company
The Gulf Bank
Gulf Insurance Company
Industrial Bank of Kuwait
International Financial Advisor
KREIC Singapore
Kuwait Cement Company
Kuwait Clearing Company
Kuwait Finance House
Kuwait Hotels Company
Kuwait Metal Pipe Industries Company
Kuwait Real Estate Bank
Kuwait Real Estate Investment Consortium (KREIC)
Kuwait Reinsurance Company
Kuwait Supply Company
Kuwait United Poultry Company
Mobile Telephone Systems
Mubarakiah Poultry and Feed Company
National Industries Company K.S.C.
National Real Estate Company
Public Warehousing Company
Rawdatain Water Bottling Company
Refrigeration Industries Company
Savings and Credit Bank
Securities Group Company
Securities House Company
United Fisheries of Kuwait
United Realty Company
Univest Invest Company
Warba Insurance Company
Credit des Bergues
Georgetown Industries, Inc. (including subsidiaries)
KFIC, Inc. (including subsidiaries)
Kuwait Airways Corporation
Kuwait Asia Bank
Kuwait Investment Office (including controlled entities)
Kuwait Investment Authority
Kuwait Maritime Transport Company
Kuwait & Middle East Financial Investment Company
Kuwait Petroleum Corporation (London) (including licensed affiliates)
Kuwait Petroleum -- North Sea Holdings Ltd. (including subsidiaries)
Santa Fe International Corporation (including subsidiaries and
affiliates)
Warfra Intervest Corporation (Cayman) (including subsidiaries and
affiliates)
Alexandria Kuwait International Bank
Arab African International Bank
Arab Banking Corporation
Arab Financial Services Company
Arab Hellenic Bank
Arab Insurance Group
Arab Maritime Petroleum Transport
Arab Mining Company
Arab Petroleum Investments Corporation
Arab Turkish Bank
Bahrain Islamic Bank
Bahrain Islamic Investment Company
Bahrain Middle East Bank
Banco Arabe Espanol
Banco Atlantico
Bank of Bahrain and Kuwait
Bank of Oman, Bahrain & Kuwait
CHENI
Dao Heng Bank
FRAB Bank International
Gulf International Bank
Gulf Investment Corporation
Independent Petroleum Group
International Contracting Group
Jordan Fertilizer Industry
Jordan Kuwait Bank
Korea Kuwait Banking Corporation
Kuwait French Bank
Kuwait Investment Projects Company
Kuwait Lebanon Bank
Kuwait National Cinema Company
National Bank of Kuwait
National Investment Company
Oman Housing Bank
Pearl Holding Company
Swiss Kuwaiti Bank
The Arab Investment Company
UBAF Arab American Bank
United Arab Shipping Company
United Bank of Kuwait
United Gulf Bank
Yemen Kuwait Bank
31 CFR 570.901 Pt. 575
31 CFR 570.901 PART 575 -- IRAQI SANCTIONS REGULATIONS
31 CFR 570.901 Subpart A -- Relation to this Part to Other Laws and
Regulations
Sec.
575.101 Relation of this part to other laws and regulations.
31 CFR 570.901 Subpart B -- Prohibitions
575.201 Prohibited transactions involving property in which the
Government of Iraq has an interest; transactions with respect to
securities.
575.202 Effect of transfers violating the provisions of this part.
575.203 Holding of certain types of blocked property in
interest-bearing accounts.
575.204 Prohibited importation of goods or services from Iraq.
575.205 Prohibited exportation and reexportation of goods,
technology, or services to Iraq.
575.206 Prohibited dealing in property.
575.207 Prohibited transactions relating to travel to Iraq or to
activities within Iraq.
575.208 Prohibited transportation-related transactions involving
Iraq.
575.209 Prohibited performance of contracts.
575.210 Prohibited transfers of funds to the Government of Iraq or
any person in Iraq.
575.211 Evasions; attempts; conspiracies.
575.212 Effective dates.
31 CFR 570.901 Subpart C -- General Definitions
575.301 Blocked account; blocked property.
575.302 Effective date.
575.303 Entity.
575.304 Entity of the Government of Iraq; Iraqi Government Entity.
575.305 General license.
575.306 Government of Iraq.
575.307 Government of Kuwait.
575.308 Interest.
575.309 Iraq; Iraqi.
575.310 Kuwait; Kuwaiti.
575.311 Iraqi origin.
575.312 Iraqi person.
575.313 License.
575.314 Person.
575.315 Property; property interest.
575.316 Specific license.
575.317 Transfer.
575.318 UNSC Resolution 661.
575.319 United States.
575.320 U.S. financial institution.
575.321 United States person; U.S. person.
575.322 United States national; U.S. national.
31 CFR 570.901 Subpart D -- Interpretations
575.401 Reference to amended sections.
575.402 Effect of amendment.
575.403 Termination and acquisition of an interest of the Government
of Iraq.
575.404 Payments from blocked accounts to U.S. exporters and for
other obligations prohibited.
575.405 Acquisition of instruments including bankers acceptances.
575.406 Extensions of credits or loans to Iraq.
575.407 Payments in connection with certain authorized transactions.
575.408 Offshore transactions.
575.409 Transshipments through the United States prohibited.
575.410 Imports of Iraqi goods from third countries; transshipments.
575.411 Exports to third countries; transshipments.
575.412 Release of Iraqi goods from bonded warehouse or foreign-trade
zone.
575.413 Goods intended for export to Iraq.
575.414 Imports of Iraqi goods and purchases of goods from Iraq.
575.415 Setoffs prohibited.
575.416 Travel transactions for journalistic activity in Iraq.
575.417 (Reserved)
575.418 Transactions incidental to a licensed transaction.
575.501 Effect of license or authorization.
575.502 Exclusion from licenses and authorizations.
575.503 Payments and transfers to blocked accounts in U.S. financial
institutions.
575.504 (Reserved)
575.505 Completion of certain transactions related to bankers
acceptances authorized.
575.506 Payment by the Government of Iraq of obligations to persons
within the United States authorized.
575.507 Certain exports to Iraq authorized.
575.508 Import of household and personal effects from Iraq
authorized.
575.509 Payment and transfers authorized for shipments of oil under
contract and en route to the United States prior to the effective date.
575.510 Payment and transfers authorized for goods and services
exported to Iraq prior to the effective date.
575.511 Extensions or renewals authorized.
575.512 (Reserved)
575.513 Transactions related to telecommunications authorized.
575.514 Transactions related to mail authorized.
575.515 -- 75.516 (Reserved)
575.517 Procedures established for export transactions initiated
prior to the effective date.
575.518 Certain standby letters of credit and performance bonds.
575.519 Certain imports for diplomatic or official personnel
authorized.
575.520 Donations of food to relieve human suffering authorized.
575.521 Donations of medical supplies authorized.
31 CFR 570.901 Subpart F -- Reports
575.601 Required records.
575.602 Reports to be furnished on demand.
575.603 Reports on certain correspondent bank accounts.
575.604 Reports on Form TDF 90-22.40.
575.605 Reports on Form TDF 90-22.41.
31 CFR 570.901 Subpart G -- Penalties
575.701 Penalties.
575.702 Prepenalty notice.
575.703 Presentation responding to prepenalty notice.
575.704 Penalty notice.
575.705 Referral to United States Department of Justice.
31 CFR 570.901 Subpart H -- Procedures
575.801 Licensing.
575.802 Decisions.
575.803 Amendment, modification, or revocation.
575.804 Rulemaking.
575.805 Delegation by the Secretary of the Treasury.
575.806 Rules governing availability of information.
31 CFR 570.901 Subpart I -- Paperwork Reduction Act
575.901 Paperwork Reduction Act notice.
Appendix A to Part 575 -- Individuals and Organizations Determined To
Be Specially Designated Nationals of the Government of Iraq
Appendix B to Part 575 -- Merchant Vessels Registered, Owned, or
Controlled by the Government of Iraq or by Persons Acting Directly or
Indirectly on Behalf of the Government of Iraq
Authority: 50 U.S.C. 1701 et seq. ; 50 U.S.C. 1601 et seq. ; 22
U.S.C. 287c; Public Law 101-513, 104 Stat. 2047-55 (Nov. 5, 1990); 3
U.S.C. 301; E.O. 12722, 55 FR 31803 (Aug. 3, 1990); E.O. 12724, 55 FR
33089 (Aug. 13, 1990).
Source: 56 FR 2113, Jan. 18, 1991, unless otherwise noted.
31 CFR 570.901 Subpart A -- Relation of This Part to Other Laws and Regulations
31 CFR 575.101 Relation of this part to other laws and regulations.
(a) This part is separate from, and independent of, the other parts
of this chapter. No license or authorization contained in or issued
pursuant to those other parts authorizes any transaction prohibited by
this part. No license or authorization contained in or issued pursuant
to any other provision of law or regulation authorizes any transaction
prohibited by this part.
(b) No license or authorization contained in or issued pursuant to
this part relieves the involved parties from complying with any other
applicable laws or regulations.
31 CFR 575.101 Subpart B -- Prohibitions
31 CFR 575.201 Prohibited transactions involving property in which the
Government of Iraq has an interest; transactions with respect to
securities.
(a) Except as authorized by regulations, rulings, instructions,
licenses, or otherwise, no property or interests in property of the
Government of Iraq that are in the United States, that hereafter come
within the United States, or that are or hereafter come within the
possession or control of U.S. persons, including their overseas
branches, may be transferred, paid, exported, withdrawn or otherwise
dealt in.
(b) Unless otherwise authorized by this part or by a specific license
expressly referring to this section, the transfer (including the
transfer on the books of any issuer or agent thereof), the endorsement
or guaranty of signatures on, or any other dealing in any security (or
evidence thereof) registered or inscribed in the name of the Government
of Iraq and held within the possession or control of a U.S. person is
prohibited, irrespective of the fact that at any time either at or
subsequent to the effective date the registered or inscribed owner
thereof may have, or appears to have, assigned, transferred, or
otherwise disposed of any such security.
31 CFR 575.202 Effect of transfers violating the provisions of this
part.
(a) Any transfer after the effective date, which is in violation of
any provision of this part or of any regulation, ruling, instruction,
license, or other direction or authorization hereunder and involves any
property in which the Government of Iraq has or has had an interest
since such date, is null and void and shall not be the basis for the
assertion or recognition of any interest in or right, remedy, power or
privilege with respect to such property.
(b) No transfer before the effective date shall be the basis for the
assertion or recognition of any right, remedy, power, or privilege with
respect to, or interest in, any property in which the Government of Iraq
has an interest, or has had an interest since such date, unless the
person with whom such property is held or maintained, prior to such
date, had written notice of the transfer or by any written evidence had
recognized such transfer.
(c) Unless otherwise provided, an appropriate license or other
authorization issued by or pursuant to the direction or authorization of
the Director of the Office of Foreign Assets Control before, during, or
after a transfer shall validate such transfer or render it enforceable
to the same extent that it would be valid or enforceable but for the
provisions of the International Emergency Economic Powers Act, the
United Nations Participation Act, this part, and any ruling, order,
regulation, direction, or instruction issued hereunder.
(d) Transfers of property which otherwise would be null and void or
unenforceable by virtue of the provisions of this section shall not be
deemed to be null and void or unenforceable as to any person with whom
such property was held or maintained (and as to such person only) in
cases in which such person is able to establish to the satisfaction of
the Director of the Office of Foreign Assets Control each of the
following:
(1) Such transfer did not represent a willful violation of the
provisions of this part by the person with whom such property was held
or maintained;
(2) The person with whom such property was held or maintained did not
have reasonable cause to know or suspect, in view of all the facts and
circumstances known or available to such person, that such transfer
required a license or authorization by or pursuant to this part and was
not so licensed or authorized, or if a license or authorization did
purport to cover the transfer, that such license or authorization had
been obtained by misrepresentation of a third party or the withholding
of material facts or was otherwise fraudulently obtained; and
(3) Promptly upon discovery that:
(i) Such transfer was in violation of the provisions of this part or
any regulation, ruling, instruction, license, or other direction or
authorization hereunder, or
(ii) Such transfer was not licensed or authorized by the Director of
the Office of Foreign Assets Control, or
(iii) If a license did purport to cover the transfer, such license
had been obtained by misrepresentation of a third party or the
withholding of material facts or was otherwise fraudulently obtained;
the person with whom such property was held or maintained filed with
the Office of Foreign Assets Control a report setting forth in full the
circumstances relating to such transfer. The filing of a report in
accordance with the provisions of this paragraph shall not be deemed
evidence that the terms of paragraphs (d) (1) and (2) of this section
have been satisfied.
(e) Unless licensed or authorized pursuant to this part, any
attachment, judgment, decree, lien, execution, garnishment, or other
judicial process is null and void with respect to any property in which,
on or since the effective date, there existed an interest of the
Government of Iraq.
31 CFR 575.203 Holding of certain types of blocked property in
interest-bearing accounts.
(a) Any person, including a U.S. financial institution, currently
holding property subject to 575.201 which, as of the effective date or
the date of receipt if subsequent to the effective date, is not being
held in an interest-bearing account, or otherwise invested in a manner
authorized by the Office of Foreign Assets Control, must transfer such
property to, or hold such property or cause such property to be held in,
an interest-bearing account or interest-bearing status in a U.S.
financial institution as of the effective date or the date of receipt if
subsequent to the effective date of this section, unless otherwise
authorized or directed by the Office of Foreign Assets Control. This
requirement shall apply to currency, bank deposits, accounts, and any
other financial assets, and any proceeds resulting from the sale of
tangible or intangible property. If interest is credited to an account
separate from that in which the interest-bearing asset is held, the name
of the account party on both accounts must be the same and must clearly
indicate the blocked Government of Iraq entity having an interest in the
accounts.
(b) For purposes of this section, the term ''interest-bearing
account'' means a blocked account in a U.S. financial institution
earning interest at rates that are commercially reasonable for the
amount of funds in the account. Except as otherwise authorized, the
funds may not be invested or held in instruments the maturity of which
exceeds 90 days.
(c) This section does not apply to blocked tangible property, such as
chattels, nor does it create an affirmative obligation on the part of
the holder of such blocked tangible property to sell or liquidate the
property and put the proceeds in a blocked account. However, the Office
of Foreign Assets Control may issue licenses permitting or directing
sales of tangible property in appropriate cases.
31 CFR 575.204 Prohibited importation of goods or services from Iraq.
Except as otherwise authorized, no goods or services of Iraqi origin
may be imported into the United States, nor may any U.S. person engage
in any activity that promotes or is intended to promote such
importation.
31 CFR 575.205 Prohibited exportation and reexportation of goods,
technology, or services to Iraq.
Except as otherwise authorized, no goods, technology (including
technical data or other information), or services may be exported from
the United States, or, if subject to U.S. jurisdiction, exported or
reexported from a third country to Iraq, to any entity owned or
controlled by the Government of Iraq, or to any entity operated from
Iraq, except donated foodstuffs in humanitarian circumstances, and
donated supplies intended strictly for medical purposes, the exportation
of which has been specifically licensed pursuant to 575.507, 575.517
or 575.518.
31 CFR 575.206 Prohibited dealing in property.
Except as otherwise authorized, no U.S. person may deal in property
of Iraqi origin exported from Iraq after August 6, 1990, property
intended for exportation to Iraq, or property intended for exportation
from Iraq to any other country, nor may any U.S. person engage in any
activity that promotes or is intended to promote such dealing.
31 CFR 575.207 Prohibited transactions relating to travel to Iraq or to
activities within Iraq.
Except as otherwise authorized, no U.S. person may engage in any
transaction relating to travel by any U.S. citizen or permanent resident
alien to Iraq, or to activities by any U.S. citizen or permanent
resident alien within Iraq, after the effective date, other than
transactions:
(a) Necessary to effect the departure of a U.S. citizen or permanent
resident alien from Kuwait or Iraq;
(b) Relating to travel and activities for the conduct of the official
business of the United States Government or the United Nations; or
(c) Relating to journalistic activity by persons regularly employed
in such capacity by a newsgathering organization.
This section prohibits the unauthorized payment by a U.S. person of
his or her own travel or living expenses to or within Iraq.
31 CFR 575.208 Prohibited transportation-related transactions involving
Iraq.
Except as otherwise authorized, the following are prohibited:
(a) Any transaction by a U.S. person relating to transportation to or
from Iraq;
(b) The provision of transportation to or from the United States by
any Iraqi person or any vessel or aircraft of Iraqi registration; or
(c) The sale in the United States by any person holding authority
under the Federal Aviation Act of any transportation by air which
includes any stop in Iraq.
(d) Example. Unless licensed or exempted, no U.S. person may insure,
or provide ticketing, ground, port, refueling, bunkering, clearance, or
freight forwarding services, with respect to any sea, ground, or air
transportation the destination of which is Iraq, or which is intended to
make a stop in Iraq.
31 CFR 575.209 Prohibited performance of contracts.
Except as otherwise authorized, no U.S. person may perform any
contract, including a financing contract, in support of an industrial,
commercial, public utility, or governmental project in Iraq.
31 CFR 575.210 Prohibited transfer of funds to the Government of Iraq
or any person in Iraq.
Except as otherwise authorized, no U.S. person may commit or
transfer, directly or indirectly, funds or other financial or economic
resources to the Government of Iraq or any person in Iraq.
31 CFR 575.211 Evasions; attempts; conspiracies.
Any transaction for the purpose of, or which has the effect of,
evading or avoiding, or which facilitates the evasion or avoidance of,
any of the prohibitions set forth in this subpart, is hereby prohibited.
Any attempt to violate the prohibitions set forth in this part is
hereby prohibited. Any conspiracy formed for the purpose of engaging in
a transaction prohibited by this part is hereby prohibited.
31 CFR 575.212 Effective dates.
The effective dates of the prohibitions and directives contained in
this subpart B are as follow:
(a) With respect to 575.201, 575.202, 575.204, 575.205, 575.207,
575.208, 575.209, and 575.211, 5 a.m., Eastern Daylight Time
(''e.d.t.''), August 2, 1990;
(b) With respect to 575.206, and 575.210, 8:55 p.m. e.d.t., August
9, 1990; and
(c) With respect to 575.203, January 18, 1991.
31 CFR 575.212 Subpart C -- General Definitions
31 CFR 575.301 Blocked account; blocked property.
The terms blocked account and blocked property shall mean any account
or property in which the Government of Iraq has an interest, and with
respect to which payments, transfers, exportations, withdrawals, or
other dealings may not be made or effected except pursuant to an
authorization or license from OFAC authorizing such action.
31 CFR 575.302 Effective date.
The term effective date refers to the effective date of the
applicable prohibition, as identified in 575.212.
31 CFR 575.303 Entity.
The term entity includes a corporation, partnership, association, or
other organization.
31 CFR 575.304 Entity of the Government of Iraq; Iraqi Government
entity.
The term entity of the Government of Iraq or Iraqi Government entity
includes:
(a) Any corporation, partnership, association, or other entity in
which the Government of Iraq owns a majority or controlling interest,
any entity managed or funded by that government, or any entity which is
otherwise controlled by that government;
(b) Any agency or instrumentality of the Government of Iraq,
including the Central Bank of Iraq.
31 CFR 575.305 General license.
The term general license means any license or authorization the terms
of which are set forth in this part.
31 CFR 575.306 Government of Iraq.
The term Government of Iraq includes:
(a) The state and the Government of Iraq, as well as any political
subdivision, agency, or instrumentality thereof, including the Central
Bank of Iraq;
(b) Any partnership, association, corporation, or other organization
substantially owned or controlled by the foregoing;
(c) Any person to the extent that such person is, or has been, or to
the extent that there is reasonable cause to believe that such person
is, or has been, since the effective date, acting or purporting to act
directly or indirectly on behalf of any of the foregoing; and
(d) Any other person or organization determined by the Director of
the Office of Foreign Assets Control to be included within this section.
31 CFR 575.307 Government of Kuwait.
The term Government of Kuwait includes:
(a) The State and Government of Kuwait and any entity purporting to
be the Government of Kuwait, as well as any political subdivision,
agency, or instrumentality thereof, including the Central Bank of
Kuwait;
(b) Any partnership, association, corporation, or other organization
substantially owned or controlled by the foregoing;
(c) Any person to the extent that such person is or has been, or to
the extent that there is reasonable cause to believe that such person is
or has been, since the effective date, acting or purporting to act
directly or indirectly on behalf of any of the foregoing;
(d) Any other person or organization determined by the Director or
the Office of Foreign Assets Control to be included within this section.
31 CFR 575.308 Interest.
Except as otherwise provided in this part, the term interest when
used with respect to property (e.g., ''an interest in property'') means
an interest of any nature whatsoever, direct or indirect.
31 CFR 575.309 Iraq; Iraqi.
The term Iraq means the country of Iraq and any territory under the
jurisdiction or authority thereof, legal or illegal. The term Iraqi
means pertaining to Iraq as defined in this section.
31 CFR 575.310 Kuwait; Kuwaiti.
The term Kuwait means the country of Kuwait and any territory under
the jurisdiction or authority thereof. The term Kuwaiti means
pertaining to Kuwait as defined in this section.
31 CFR 575.311 Iraqi origin.
The term goods or services of Iraqi origin includes:
(a) Goods produced, manufactured, grown, or processed within Iraq;
(b) Goods which have entered into Iraqi commerce;
(c) Services performed in Iraq or by a Iraqi national who is acting
as an agent, employee, or contractor of the Government of Iraq, or of a
business entity located in Iraq. Services of Iraqi origin are not
imported into the United States when such services are provided in the
United States by an Iraqi national employed in the United States.
31 CFR 575.312 Iraqi person.
The term Iraqi person means an Iraqi citizen, any person organized
under the laws of Iraq, or any person owned or controlled, directly or
indirectly, by a Iraqi national or the Government of Iraq.
31 CFR 575.313 License.
Except as otherwise specified, the term license means any license or
authorization contained in or issued pursuant to this part.
31 CFR 575.314 Person.
The term person means an individual, partnership, association,
corporation, or other organization.
31 CFR 575.315 Property; property interest.
The terms property and property interest include, but are not limited
to, money, checks, drafts, bullion, bank deposits, savings accounts,
debts, indebtedness, obligations, notes, debentures, stocks, bonds,
coupons, any other financial instruments, bankers acceptances,
mortgages, pledges, liens or other rights in the nature of security,
warehouse receipts, bills of lading, trust receipts, bills of sale, any
other evidences of title, ownership or indebtedness, letters of credit
and any documents relating to any rights or obligations thereunder,
powers of attorney, goods, wares, merchandise, chattels, stocks on hand,
ships, goods on ships, real estate mortgages, deeds of trust, vendors
sales agreements, land contracts, leaseholds, ground rents, real estate
and any other interest therein, options, negotiable instruments, trade
acceptances, royalties, book accounts, accounts payable, judgments,
patents, trademarks or copyrights, insurance policies, safe deposit
boxes and their contents, annuities, pooling agreements, services of any
nature whatsoever, contracts of any nature whatsoever, and any other
property, real, personal, or mixed, tangible or intangible, or interest
or interests therein, present, future or contingent.
31 CFR 575.316 Special license.
The term specific license means any license or authorization not set
forth in this part but issued pursuant to this part in response to an
application.
31 CFR 575.317 Transfer.
The term transfer means any actual or purported act or transaction,
whether or not evidenced by writing, and whether or not done or
performed within the United States, the purpose, intent, or effect of
which is to create, surrender, release, convey, transfer, or alter,
directly or indirectly, any right, remedy, power, privilege, or interest
with respect to any property and, without limitation upon the foregoing,
shall include the making, execution, or delivery of any assignment,
power, conveyance, check, declaration, deed, deed of trust, power of
attorney, power of appointment, bill of sale, mortgage, receipt,
agreement, contract, certificate, gift, sale, affidavit, or statement;
the appointment of any agent, trustee, or fiduciary; the creation or
transfer of any lien; the issuance, docketing, filing, or the levy of
or under any judgment, decree, attachment, injunction, execution, or
other judicial or administrative process or order, or the service of any
garnishment; the acquisition of any interest of any nature whatsoever
by reason of a judgment or decrease of any foreign country; the
fulfillment of any condition; the exercise of any power of appointment,
power of attorney, or other power; or the acquisition, disposition,
transportation, importation, exportation, or withdrawal of any security.
31 CFR 575.318 UNSC Resolution 661.
The term UNSC Resolution 661 means United Nations Security Council
Resolution No. 661, adopted August 6, 1990, prohibiting certain
transactions with respect to Iraq and Kuwait.
31 CFR 575.319 United States.
The term United States means the United States, its territories and
possessions, and all areas under the jurisdiction or authority thereof.
31 CFR 575.320 U.S. financial institution.
The term U.S. financial institution means any U.S. person (including
foreign branches) that is engaged in the business of accepting deposits,
making, granting, transferring, holding, or brokering loans or credits,
or purchasing or selling foreign exchange, securities, commodity futures
or options, or procuring purchasers and sellers thereof, as principal or
agent; including, but not limited to, depository institutions, banks,
savings banks, trust companies, securities brokers and dealers,
commodity futures and options brokers and dealers, forward contract and
foreign exchange merchants, securities and commodities exchanges,
clearing corporations, investment companies, employee benefit plans, and
U.S. holding companies, U.S. affiliates, or U.S. subsidiaries of any of
the foregoing. This term includes those branches, offices and agencies
of foreign financial institutions which are located in the United
States, but not such institutions' foreign branches, offices, or
agencies.
31 CFR 575.321 United States person; U.S. person.
The term United States person or U.S. person means any United States
citizen; permanent resident alien; juridical person organized under
the laws of the United States or any jurisdiction within the United
States, including foreign branches; or any person in the United States.
31 CFR 575.322 United States national; U.S. national.
The term United States national or U.S. national means any United
States citizen; any person who, though not a citizen of the United
States, owes permanent allegiance to the United States; and any
juridical person organized under the laws of the United States or any
jurisdiction within the United States. This term does not include U.S.
branches of persons organized under foreign law, or aliens, regardless
of whether they have permanent resident status in the United States.
(56 FR 5636, Feb. 11, 1991)
31 CFR 575.322 Subpart D -- Interpretations
31 CFR 575.401 Reference to amended sections.
Except as otherwise specified, reference to any section of this part
or to any regulation, ruling, order, instruction, direction, or license
issued pursuant to this part shall be deemed to refer to the same as
currently amended.
31 CFR 575.402 Effect of amendment.
Any amendment, modification, or revocation of any section of this
part or of any order, regulation, ruling, instruction, or license issued
by or under the direction of the Director of the Office of Foreign
Assets Control shall not, unless otherwise specifically provided, be
deemed to affect any act done or omitted to be done, or any civil or
criminal suit or proceeding commenced or pending prior to such
amendment, modification, or revocation. All penalties, forfeitures, and
liabilities under any such order, regulation, ruling, instruction, or
license shall continue and may be enforced as if such amendment,
modification, or revocation had not been made.
31 CFR 575.403 Termination and acquisition of an interest of the
Government of Iraq.
(a) Whenever a transaction licensed or authorized by or pursuant to
this part results in the transfer of property (including any property
interest) from the Government of Iraq, such property shall no longer be
deemed to be property in which the Government of Iraq has or has had an
interest unless there exists in the property another such interest, the
transfer of which has not been effected pursuant to license or other
authorization.
(b) Unless otherwise specifically provided in a license or
authorization issued pursuant to this part, if property (including any
property interest) is transferred or attempted to be transferred to the
Government of Iraq, such property shall be deemed to be property in
which there exists an interest of the Government of Iraq.
31 CFR 575.404 Payments from blocked accounts to U.S. exporters and for
other obligations prohibited.
No debits may be made to a blocked account to pay obligations to U.S.
persons or other persons, including payment for goods, technology or
services exported prior to the effective date, except as authorized
pursuant to this part.
31 CFR 575.405 Acquisition of instruments including bankers
acceptances.
No U.S. person may acquire or deal in any obligation, including
bankers acceptances, where the documents evidencing the obligation
indicate, or the U.S. person has actual knowledge, that the underlying
transaction is in violation of 575.201, 575.204, or 575.205. This
interpretation does not apply to obligations arising from an underlying
transaction licensed or otherwise authorized pursuant to this part.
31 CFR 575.406 Extensions of credits or loans to Iraq.
(a) The prohibition in 575.210 applies to the unlicensed renewal of
credits or loans in existence on the effective date, whether by
affirmative action or operation of law.
(b) The prohibition in 575.210 applies to credits to loans extended
in any currency.
31 CFR 575.407 Payments in connection with certain authorized
transactions.
Payments are authorized in connection with transactions authorized in
or pursuant to subpart E.
31 CFR 575.408 Offshore transactions.
(a) The prohibitions contained in 575.201 and 575.206 apply to
transactions by U.S. persons in locations outside the United States with
respect to property in which the U.S. person knows, or has reason to
know, that the Government of Iraq has or has had an interest since the
effective date.
(b) Prohibited transactions include, but are not limited to,
importation into locations outside the United States of, or dealings
within such locations in, goods or services of Iraqi origin.
(c) Examples. (1) A U.S. person may not, within the United States or
abroad, purchase, sell, finance, insure, transport, act as a broker for
the sale or transport of, or otherwise deal in, Iraqi crude oil or
petroleum products refined in Iraq.
(2) A U.S. person may not, within the United States or abroad,
conduct transactions of any nature whatsoever with an entity that the
U.S. person knows or has reason to know is an Iraqi Government entity
unless the entity is licensed by the Office of Foreign Assets Control to
conduct such transactions with U.S. persons.
31 CFR 575.409 Transhipments through the United States prohibited.
(a) The prohibitions in 575.205 apply to the importation into the
United States, for transshipment or transit, of goods which are intended
or destined for Iraq, or an entity operated from Iraq.
(b) The prohibitions in 575.204 apply to the importation into the
United States, for transshipment or transit, of goods of Iraqi origin
which are intended or destined for third countries.
(c) Goods in which the Government of Iraq has an interest which are
imported into or transshipped through the United States are blocked
pursuant to 575.201.
31 CFR 575.410 Imports of Iraqi goods from third countries;
transhipments.
Importation into the United States from third countries of goods,
including refined petroleum products, containing raw materials or
components of Iraqi origin is prohibited. In light of the universal
prohibition in UNSC Resolution 661 on the importation of goods exported
from Iraq or Kuwait after August 6, 1990, substantial transformation of
Iraqi-origin goods in a third country does not exempt the third-country
products from the prohibitions contained in this part.
31 CFR 575.411 Exports to third countries; transshipments.
Exportation of goods or technology (including technical data and
other information) from the United States to third countries is
prohibited if the exporter knows, or has reason to know, that the goods
or technology are intended for transshipment to Iraq (including passage
through, or storage in, intermediate destinations). The exportation of
goods and technology intended specifically for incorporation or
substantial transformation into a third-country product is also
prohibited if the particular product is to be used in Iraq, is being
specifically manufactured to fill a Iraqi order, or if the
manufacturer's sales of the particular product are predominantly to
Iraq.
31 CFR 575.412 Release of Iraqi goods from bonded warehouse or foreign
trade zone.
Section 575.204 does not prohibit the release from a bonded warehouse
or a foreign trade zone of goods of Iraqi origin imported into a bonded
warehouse or a foreign trade zone either prior to the effective date or
in a transaction authorized pursuant to this part after the effective
date.
Note: Pursuant to 575.201, property in which the Government of Iraq
has an interest may not be released unless authorized or licensed by the
Office of Foreign Assets Control.
31 CFR 575.413 Goods intended for export to Iraq.
The prohibitions contained in 575.201 do not apply to goods
manufactured, consigned, or destined for export to Iraq and not subject
to 575.517, if the Government of Iraq has never held or received title
to such goods on or after the effective date, and if any payment
received from the Government of Iraq with respect to such goods is
placed in a blocked account in a U.S. financial institution pursuant to
575.503. The prohibitions of 575.205 apply to goods subject to this
section.
31 CFR 575.414 Imports of Iraqi goods and purchases of goods from Iraq.
The prohibitions contained in 575.201 shall not apply to the
importation of Iraqi-origin goods and services described in 575.204 if
the importation of such goods is permitted by an authorization or
license issued pursuant to this part. However, any payments in
connection with such importation are subject to the prohibitions
contained in 575.201 and 575.210.
31 CFR 575.415 Setoffs prohibited.
A setoff against a blocked account, whether by a U.S. bank or other
U.S. person, is a prohibited transfer under 575.201 if effected after
the effective date.
31 CFR 575.416 Travel transactions for journalistic activity in Iraq.
(a) Section 575.207 does not prohibit travel transactions in Iraq by
persons regularly employed in journalistic activity by recognized
newsgathering organizations.
(b) For purposes of this part:
(1) A person is considered regularly employed as a journalist if he
or she is employed in a constant or regular manner by a recognized
newsgathering organization. Free-lance journalists should have an
assignment from a recognized newsgathering organization requiring travel
to Iraq, or be able to demonstrate that publication by a recognized
newsgathering organization of a work requiring such travel is likely.
The latter may be demonstrated by providing a resume listing
previously-published free-lance works or copies of previously-published
works.
(2) ''Recognized newsgathering organizations'' include those entities
regularly and principally engaged in collecting news for publication in
the public press, transmission by wire services, or broadcast by radio
or television.
(c) Authorized travel transactions are limited to those incident to
travel for the purpose of collecting and disseminating information for a
recognized newsgathering organization, and do not include travel
transactions related to any other activity in Iraq.
575.417 (Reserved)
31 CFR 575.418 Transactions incidental to a licensed transaction.
(a) Any transaction ordinarily incident to a licensed transaction and
necessary to give effect thereto is also authorized, except a
transaction by an unlicensed, blocked person or involving an unlicensed
debit to a blocked account.
(b) Example. A license authorizing the Government of Iraq to
complete a securities sale also authorizes all activities by other
parties required to complete the sale, including transactions by the
buyer, brokers, transfer agents, banks, etc.
31 CFR 575.418 Subpart E -- Licenses, Authorizations, and Statements of Licensing Policy
31 CFR 575.501 Effect of license or authorization.
(a) No license or other authorization contained in this part, or
otherwise issued by or under the direction of the Director of the Office
of Foreign Assets Control, shall be deemed to authorize or validate any
transaction effected prior to the issuance of the license, unless
specifically provided in such license or authorization.
(b) No regulation, ruling, instruction, or license authorizes any
transaction prohibited under this part unless the regulation, ruling,
instruction, or license is issued by the Office of Foreign Assets
Control and specifically refers to this part. No regulation, ruling,
instruction, or license referring to this part shall be deemed to
authorize any transaction prohibited by any provision of this chapter
unless the regulation, ruling, instruction or license specifically
refers to such provision.
(c) Any regulation, ruling, instruction, or license authorizing any
transaction otherwise prohibited under this part has the effect of
removing a prohibition or prohibitions contained in Subpart B from the
transaction, but only to the extent specifically stated by its terms.
Unless the regulation, ruling, instruction, or license otherwise
specifies, such an authorization does not create any right, duty,
obligation, claim, or interest in, or with respect to, any property
which would not otherwise exist under ordinary principles of law.
31 CFR 575.502 Exclusion from licenses and authorizations.
The Director of the Office of Foreign Assets Control reserves the
right to exclude any person, property, or transaction from the operation
of any license, or from the privileges therein conferred, or to restrict
the applicability thereof with respect to particular persons, property,
transactions, or classes thereof. Such action shall be binding upon all
persons receiving actual or constructive notice of such exclusion or
restriction.
31 CFR 575.503 Payments and transfers to blocked accounts in U.S.
financial institutions.
(a) Any payment of funds or transfer of credit or other assets,
including any payment or transfer by any U.S. person outside the United
States, to a blocked account in a U.S. financial institution located in
the United States in the name of the Government of Iraq is hereby
authorized, including incidental foreign exchange transactions, provided
that such payment or transfer shall not be made from any blocked account
if such payment or transfer represents, directly or indirectly, a
transfer of any interest of the Government of Iraq to any other country
or person.
(b) This section authorizes transfer of the funds of a blocked demand
deposit account to a blocked interest-bearing account under the same
name or designation as was the demand deposit account, as required
pursuant to 575.203 or at the instruction of the depositor, at any
time. If such transfer is to a blocked account in a different U.S.
financial institution such transfer must be made to a blocked account in
a U.S. financial institution located in the United States, and the
transferee financial institution must furnish within 10 business days of
the date of transfer, the notification described in paragraph (h) of
this section to the Office of Foreign Assets Control, Blocked Assets
Section.
(c) This section does not authorize any transfer from a blocked
account within the United States to an account held outside the United
States.
(d) This section does not authorize any payment or transfer to any
blocked account held in a name other than that of the Government of Iraq
where such government is the ultimate beneficiary of such payment or
transfer.
(e) This section does not authorize any payment or transfer of credit
comprising an integral part of a transaction which cannot be effected
without the subsequent issuance of a further license.
(f) This section does not authorize the crediting of the proceeds of
the sale of securities or other assets, held in a blocked account or a
sub-account thereof, or the income derived from such securities or
assets, to a blocked account or sub-account, under any name or
designation which differs from the name or designation of the specific
blocked account or sub-account in which such securities or assets were
or are held.
(g) This section does not authorize any payment or transfer from a
blocked account in a U.S. financial institution to a blocked account
held under any name or designation which differs from the name or
designation of the specified blocked account or sub-account from which
the payment or transfer is made.
(h) The authorization in paragraph (a) of this section is subject to
the condition that written notification from the U.S. financial
institution receiving an authorized payment or transfer is furnished to
the Office of Foreign Assets Control, Blocked Assets Section, within 10
business days from the date of payment or transfer. This notification
shall confirm that the payment or transfer has been deposited in a
blocked account under the regulations in this part, and shall provide
the account number, the name and address of the Government of Iraq
entity in whose name the account is held, the name and address of the
transferee U.S. financial institution, and the amount of the payment or
transfer.
(56 FR 2113, Jan. 18, 1991, as amended at 56 FR 5636, Feb. 11, 1991)
575.504 (Reserved)
31 CFR 575.505 Completion of certain transactions related to bankers
acceptances authorized.
(a) Persons other than the Government of Iraq are authorized to buy,
sell, and satisfy obligations with respect to bankers acceptances, and
to pay under deferred payment undertakings, involving an interest of the
Government of Iraq as long as the bankers acceptances were created or
the deferred payment undertakings were incurred prior to the effective
date.
(b) Persons other than the Government of Iraq are authorized to buy,
sell, and satisfy obligations with respect to bankers acceptances, and
to pay under deferred payment undertakings, involving the importation or
exportation of goods to or from Iraq that do not involve an interest of
the Government of Iraq as long as the bankers acceptances or the
deferred payment undertakings were accepted prior to the effective date.
(c) Nothing in this section shall authorize or permit a debit to a
blocked account. Specific licenses for the debiting of a blocked
account may be issued on a case-by-case basis.
31 CFR 575.506 Payment by the Government of Iraq of obligations to
persons within the United States authorized.
(a) The transfer of funds after the effective date by, through, or to
any U.S. financial institution or other U.S. person solely for the
purpose of payment of obligations of the Government of Iraq to persons
or accounts within the United States is authorized, provided that the
obligation arose prior to the effective date, and the payment requires
no debit to a blocked account. Property is not blocked by virtue of
being transferred or received pursuant to this section.
(b) A person receiving payment under this section may distribute all
or part of that payment to any person, provided that any such payment to
the Government of Iraq must be to a blocked account in a U.S. financial
institution.
(c) The authorization in this section is subject to the condition
that written notification from the U.S. financial institution or U.S.
person transferring or receiving funds is furnished to the Office of
Foreign Assets Control, Blocked Assets Section, within 10 business days
from the date of transfer or receipt. The notification shall provide
the account number, name and address of the transferor and/or transferee
U.S. financial institution or person, and the account number, name and
address of the person into whose account payment is made.
31 CFR 575.507 Certain exports to Iraq authorized.
(a) All transactions ordinarily incident to the exportation of any
item, commodity, or product from the United States to or destined for
Iraq are authorized if:
(1) such exports would ordinarily be authorized under one of the
following regulations administered by the Department of Commerce: 15
CFR 771.6 -- General license BAGGAGE (accompanied and unaccompanied
baggage); 15 CFR 771.13 -- General license GUS (shipments to personnel
and agencies of the U.S. Government); or,
(2) such exports are for the official use of the United Nations, its
personnel and agencies (excluding its relief or developmental agencies).
(b) All transactions related to exportation or reexportation not
otherwise authorized in this part, are prohibited unless licensed
pursuant to the procedures described in 575.801 by the Office of
Foreign Assets Control.
(56 FR 2113, Jan. 18, 1991, as amended at 56 FR 5636, Feb. 11, 1991)
31 CFR 575.508 Import of household and personal effects from Iraq
authorized.
The importation of household and personal effects of Iraqi origin,
including baggage and articles for family use, of persons arriving in
the United States directly or indirectly from Iraq is authorized.
Articles included in such effects may be imported without limitation
provided they were actually used by such persons or their family members
abroad, are not intended for any other person or for sale, and are not
otherwise prohibited from importation.
31 CFR 575.509 Payments and transfers authorized for shipments of oil
under contract and en route to the United States prior to the effective
date.
(a) Oil of Iraqi origin or oil in which the Government of Iraq has an
interest may be imported into the United States only if:
(1) Prior to the effective date, the oil was loaded for ultimate
delivery to the United States on board a vessel in Iraq, Kuwait, or a
third country;
(2) The oil was imported into the United States before 11:59 p.m.
Eastern Daylight Time, October 1, 1990; and
(3) The bill of lading accompanying the oil was issued prior to the
effective date.
(b) Any payment owed or balance not paid to or for the benefit of the
Government of Iraq prior to the effective date for oil imported pursuant
to paragraph (a) must be paid into a blocked account in a U.S. financial
institution.
(c) Transactions conducted pursuant to this section must be reported
in writing to the Office of Foreign Assets Control, Blocked Assets
Section, no later than 10 days after the date of importation.
Note: Transactions authorized by this provision have been completed
prior to January 18, 1991. The text of this license is included for the
convenience of the user.
31 CFR 575.510 Payments and transfers authorized for goods and services
exported to Iraq prior to the effective date.
(a) Specific licenses may be issued on a case-by-case basis to permit
payment involving an irrevocable letter of credit issued or confirmed by
a U.S. bank, or a letter of credit reimbursement confirmed by a U.S.
bank, from a blocked account or otherwise, of amounts owed to or for the
benefit of a person with respect to goods or services exported prior to
the effective date directly or indirectly to Iraq or Kuwait, or to third
countries for an entity operated from Iraq or Kuwait, or for the benefit
of the Government of Iraq, where the license application presents
evidence satisfactory to the Office of Foreign Assets Control that:
(1) The exportation occurred prior to the effective date (such
evidence may include, e.g., the bill of lading, the air waybill, the
purchaser's written confirmation of completed services, customs
documents, and insurance documents); and
(2) If delivery or performance occurred after the effective date, due
diligence was exercised to divert delivery of the goods from Iraq and to
effect final delivery of the goods to a non-prohibited destination, or
to prevent performance of the services.
(b) Specific license applications must also contain the following
information:
(1) The name and address of any Iraqi broker, purchasing agent, or
other participant in the sale of goods or services exported to Iraq;
and an explanation of the facts and circumstances surrounding the entry
into and execution of the transaction; and
(2) a notarized statement by the applicant certifying that no
ownership interest greater than five (5) percent is held by the
Government of Iraq or an Iraqi person in the beneficiary of the letters
of credit, or if such interest exists, the name, address and ownership
interest of the Government of Iraq entity or Iraqi person holding such
interest.
(c) This section does not authorize exportation or the performance of
services after the effective date pursuant to a contract entered into or
partially performed prior to the effective date.
(d) Transactions conducted under specific licenses granted pursuant
to this section must be reported in writing to the Office of Foreign
Assets Control, Blocked Assets Section, no later than 10 days after the
date of payment.
(e) Separate criteria may be applied to the issuance of licenses
authorizing payment from an account of or held by a blocked U.S. bank
owned or controlled by the Government of Iraq.
31 CFR 575.511 Extensions or renewals authorized.
(a) The extension or renewal, at the request of the account party, of
a letter of credit or a standby letter of credit issued or confirmed by
a U.S. financial institution is authorized.
(b) Transactions conducted pursuant to this section must be reported
to the Office of Foreign Assets Control, Blocked Assets Section, within
10 days after completion of the transaction.
575.512 (Reserved)
31 CFR 575.513 Transactions related to telecommunications authorized.
All transactions of U.S. common carriers with respect to the receipt
and transmission of telecommunications involving Iraq are authorized,
provided that any payment owed to the Government of Iraq or persons in
Iraq is paid into a blocked account in a U.S. financial institution.
31 CFR 575.514 Transactions related to mail authorized.
All transactions by U.S. persons, including payment and transfers to
common carriers, incident to the receipt or transmission of mail between
the United States and Iraq are authorized, provided that mail is limited
to personal communications not involving a transfer of anything of value
and not exceeding 12 ounces.
575.515 -- 575.516 (Reserved)
31 CFR 575.517 Procedures established for export transactions initiated
prior to effective date.
Goods awaiting exportation to Iraq on the effective date and seized
or detained by the U.S. Customs Service on the effective date or
thereafter may be released to the exporter, provided the following
documents are filed with Customs officials at the port where such goods
are located:
(a) A copy of the contract governing the exportation (sale or other
transfer) of the goods to Iraq or, if no contract exists, a written
explanation of the circumstances of exportation, including in either
case a description of the manner and terms of payment received or to be
received by the exporter (or other person) for, or by reason of, the
exportation of the goods;
(b) An invoice, bill of lading, or other documentation fully
describing the goods; and
(c) A statement by the exporter substantially in the following form:
Any amount received from or on behalf of the Government of Iraq by
reason of the attempted exportation of the goods released to (name of
exporter) by the U.S. Customs Service on (date), and fully described in
the attached documents, has been or will be placed into a blocked
account in a U.S. bank and the Office of Foreign Assets Control, Blocked
Assets Section, will be immediately notified. (Name of exporter) agrees
to fully indemnify the U.S. Government for any amount ultimately
determined by a court of competent jurisdiction to be due or payable to
or for the benefit of any person by reason of the failure of (name of
exporter) to properly pay into a blocked account any amount received for
the goods from or on behalf of the Government of Iraq. (Name of
exporter) also agrees to waive all claims (1) against any payments
received and placed into a blocked account, except as may be later
authorized by law, regulations, or license, and (2) against the U.S.
Government with regard to the disposition of the amounts placed into a
blocked account.
The statement should be dated and signed by the exporter or by a
person authorized to sign on the exporter's behalf. The Customs Service
may release the goods to the exporter upon receipt of the documentation
and statement described above, provided it is satisfied that all customs
laws and regulations have been complied with, including the execution of
such hold harmless assurances as it shall determine to be appropriate.
The documentation and statement received by Customs will be forwarded to
the Office of Foreign Assets Control for review and appropriate action.
31 CFR 575.518 Certain standby letters of credit and performance bonds.
(a) Notwithstanding any other provision of law, payment into a
blocked account in a U.S. financial institution by an issuing or
confirming bank under a standby letter of credit in favor of a
beneficiary that is the Government of Iraq or a person in Iraq is
prohibited by 575.201 and not authorized, notwithstanding the
provisions of 575.503, if:
(1) The account party is a U.S. person; and
(2)(i) A specific license has been issued pursuant to the provisions
of paragraph (b) of this section, or
(ii) 10 business days have not expired after notice to the account
party pursuant to paragraph (b) of this section.
(b) Whenever an issuing or confirming bank shall receive such demand
for payment under such a standby letter of credit, it shall promptly
notify the account party. The account party may then apply within five
business days for a specific license authorizing the account party to
establish a blocked account on its books in the name of the Iraqi
beneficiary in the amount payable under the credit, in lieu of payment
by the issuing or confirming bank into a blocked account and
reimbursement therefor by the account party. Nothing in this section
relieves any such bank or such account party from giving any notice of
defense against payment or reimbursement that is required by applicable
law.
(c) Where there is outstanding a demand for payment under a standby
letter of credit, and the issuing or confirming bank has been enjoined
from making payment, upon removal of the injunction, the account party
may apply for a specific license for the same purpose and in the same
manner as that set forth in paragraph (b) of this section. The issuing
or confirming bank shall not make payment under the standby letter of
credit unless:
(1) 10 business days have expired since the bank has received notice
of the removal of the injunction, and
(2) A specific license issued to the account party pursuant to the
provisions of this paragraph has not been presented to the bank.
(d) If necessary to assure the availability of the funds blocked, the
Director of the Office of Foreign Assets Control may at any time require
the payment of the amounts due under any letter of credit described in
paragraph (a) of this section into a blocked account in a U.S. financial
institution or the supplying of any form of security deemed necessary.
(e) Nothing in this section precludes the account party on any
standby letter of credit or any other person from at any time contesting
the legality of the demand from an Iraqi beneficiary or from raising any
other legal defense to payment under the standby letter of credit.
(f) This section does not affect the obligation of the various
parties to the instruments covered by this section if the instruments
and payments thereunder are subsequently unblocked.
(g) The section does not authorize any U.S. person to reimburse a
non-U.S. bank for payment to a Iraqi beneficiary under a standby letter
of credit, except by payments into a blocked account in accordance with
575.503 or paragraph (b) or (c) of this section.
(h) A person receiving a specific license under paragraph (b) or (c)
of this section shall certify to the Office of Foreign Assets Control
within 5 business days after receipt of that license that it has
established the blocked account on its books as provided in those
paragraphs. However, in appropriate cases, this time period may be
extended upon application to the Office of Foreign Assets Control when
the account party has filed a petition with an appropriate court seeking
a judicial order barring payment by the issuing or confirming bank.
(i) For the purposes of this section:
(1) The term ''standby letter of credit'' shall mean a letter of
credit securing performance of, or repayment of, any advance payments or
deposits under a contract, or any similar obligation in the nature of a
performance bond;
(2) The term ''account party'' shall mean the person for whose
account the standby letter of credit is opened; and
(3) The term ''Iraqi beneficiary'' shall mean a beneficiary that is
(i) A person in Iraq,
(ii) An entity operated from Iraq, or
(iii) The Government of Iraq.
31 CFR 575.519 Certain imports for diplomatic or official personnel
authorized.
All transactions ordinarily incident to the importation of any goods
or services into the United States destined for official or personal use
by personnel employed by the diplomatic missions of the Government of
Iraq to the United States and to international organizations located in
the United States are authorized, not for resale, and unless the
importation is otherwise prohibited by law.
31 CFR 575.520 Donations of food to relieve human suffering authorized.
(a) Specific licenses may be issued on a case-by-case basis to permit
exportation to Iraq of donated food intended to relieve human suffering.
(b) In general, specific licenses will only be granted for donations
of food to be provided through the United Nations in accordance with
United Nations Security Council Resolutions 661 and 666 and in
cooperation with the International Committee of the Red Cross or other
appropriate humanitarian agencies for distribution by them or under
their supervision, or in such other manner as may be approved under
United Nations Security Council Resolution 666 and any other applicable
Security Council resolutions, in order to ensure that such donations
reach the intended beneficiaries.
(c) Applications for specific licenses pursuant to paragraph (a) of
this section shall be made in advance of the proposed exportation, and
provide the following information:
(1) The nature, quantity, value, and intended use of the donated
food; and
(2) The terms and conditions of distribution, including the intended
method of compliance with such terms and conditions of distribution as
may have been adopted by the United Nations Security Council or a duly
authorized body subordinate thereto to govern the shipment of foodstuffs
under applicable United Nations Security Council resolutions, including
Resolutions 661 and 666.
31 CFR 575.521 Donations of medical supplies authorized.
(a) Specific licenses may be issued on a case-by-case basis to permit
exportation to Iraq of donated supplies intended strictly for medical
purposes, in accordance with the provisions of United Nations Security
Council Resolutions 661 and 666 and other applicable Security Council
resolutions.
(b) In general, specific licenses will only be granted for the
exportation of medical supplies through the International Committee of
the Red Cross or other appropriate humanitarian agencies for
distribution by them or under their supervision, or in such other manner
as may be approved under applicable Security Council resolutions, in
order to ensure that such supplies reach the intended recipient.
(c) Applications for specific licenses pursuant to paragraph (a)
shall be made in advance of the proposed exportation, and provide the
following information:
(1) The nature, quantity, value, and intended use of the medical
supplies;
(2) The terms and conditions of distribution, including the intended
method of compliance with such terms and conditions of distribution as
may have been adopted by the United Nations Security Council or a duly
authorized body subordinate thereto to govern the shipment of medical
supplies under applicable Security Council resolutions.
31 CFR 575.521 Subpart F -- Reports
31 CFR 575.601 Required records.
Every person engaging in any transaction subject to the provisions of
this part shall keep a full and accurate record of each such transaction
in which that person engages, regardless of whether such transaction is
effected pursuant to license or otherwise, and such record shall be
available for examination for at least 2 years after the date of such
transaction.
31 CFR 575.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, from time to time and at any time as may be
required, complete information relative to any transaction, regardless
of whether such transaction is effected pursuant to license or
otherwise, subject to the provisions of this part. Such reports may be
required to include the production of any books of account, contracts,
letters or other papers, connected with any such transaction or
property, in the custody or control of the person required to make such
reports. Reports with respect to transactions may be required either
before or after such transactions are completed. The Director of
Foreign Assets Control may, through any person or agency, conduct
investigations, hold hearings, administer oaths, examine witnessess,
receive evidence, take depositions, and require by subpoena the
attendance and testimony of witnessess and the production of all books,
papers, and documents relating to any matter under investigation,
regardless of whether any report has been required or filed in
connection therewith.
31 CFR 575.603 Report on certain correspondent bank accounts.
(a) U.S. financial institutions are required to file a monthly report
concerning any bank account held by them in the name of a bank in which
the Government of Iraq holds an equity interest of 10% or more (i.e., a
correspondent bank account).
(b) The report, consisting of a copy of a monthly bank statement for
the account, must:
(1) Include a summary of the average balance in the account for the
period covered by the report,
(2) List the actual date on which account statements are made
available to account holders, and
(3) State the exact location at which documents showing debits from
and credits to the account may be reviewed and the name and telephone
number of a person responsible for the content of the report.
(The report should not include copies of documents showing debits and
credits.)
(c) A report filed pursuant to this section must arrive at the Office
of Foreign Assets Control, Compliance Section, no later than the last
business day of the month following the activity summarized in the
report. The report may be sent by facsimile to (202) 377-7222 or mailed
to the following address: Compliance Unit -- 603, Office of Foreign
Assets Control, U.S. Department of the Treasury, 1500 Pennsylvania
Avenue, NW. -- 2131 Annex, Washington, DC 20220.
31 CFR 575.604 Reports on Form TDF 90-22.40.
(a) Requirement for report. Reports on Form TDF 90-22.40 are hereby
required to be filed on or before March 1, 1991, in the manner
prescribed herein and in the instructions to Form TDF 90-22.40, with
respect to all property held by any United States person, in which the
Government of Iraq has or has had any interest at any time since 5 a.m.
E.D.T., August 2, 1990. Reports must contain complete answers to every
question included in Form TDF 90-22.40.
(b) Who must report. Reports on Form TDF 90-22.40 must be filed by
each of the following:
(1) Any U.S. person, or his successor, who has had in his custody,
possession or control, directly or indirectly, in trust or otherwise,
property in which there was any direct or indirect interest of the
Government of Iraq at any time since 5 a.m. e.d.t., August 2, 1990;
(2) Any business or non-business entity in the United States in which
the Government of Iraq holds or has held any financial interest since 5
a.m. e.d.t., August 2, 1990.
(c) How to file Form TDF 90-22.40. Reports on Form TDF 90-22.40 shall
be prepared in triplicate. On or before March 1, 1991, two copies shall
be sent in a set to Unit 604, Office of Foreign Assets Control,
Department of the Treasury, Washington, DC 20220. The third copy must
be retained with the reporter's records.
(d) Certification. Every report on Form TDF 90-22.40 shall contain
the certification required in Part C of the Form. Failure to complete
the certification shall render the report ineffective, and the
submission of such a report shall not constitute compliance with this
section.
(e) Confidentiality of reports. Reports on Form TDF 90-22.40 are
regarded as privileged and confidential.
(56 FR 5637, Feb. 11, 1991)
31 CFR 575.605 Reports on Form TDF 90-22.41.
(a) Requirement for reports. Reports on Form TDF 90-22.41 are hereby
required to be filed on or before March 1, 1991, in the manner
prescribed herein and in the instructions to Form TDF 90-22.41, with
respect to all claims held by U.S. nationals as of 5 p.m., e.s.t.,
January 16, 1991, against the Government of Iraq or an Iraqi government
entity. Reports must contain complete answers to every question
included in Form 90-22.41.
(b) Who must report. Reports on Form TDF 90-22.41 must be filed by
every U.S. national who had a claim outstanding at 5 p.m., e.s.t.,
January 16, 1991, against the Government of Iraq or an Iraqi government
entity. No report is to be submitted by a U.S. branch of a foreign firm
not owned or controlled by a U.S. national.
(c) How to file Form TDF 90-22.41. Reports on Form TDF 90-22.41 shall
be prepared in triplicate. On or before March 1, 1991, two copies shall
be sent in a set to Unit 605, Office of Foreign Assets Control,
Department of the Treasury, Washington, DC 20220. The third copy must
be retained with the reporter's records.
(d) Certification. Every report on Form TDF 90-22.41 shall contain
the certification required on Part C of the Form. Failure to complete
the certification shall render the report ineffective, and the
submission of such a report shall not constitute compliance with this
section.
(e) Confidentiality of reports. Reports on Form TDF 90-22.41 are
regarded as privileged and confidential.
(f) Examples of claims. Claims may relate to losses due to
expropriation, nationalization, or other measures affecting property
rights; losses for breach of contract or debt defaults; compensation
for injuries to persons or loss of life; and any other losses or
injuries suffered in Iraq, Kuwait or elsewhere, attributable to the
Government of Iraq or an Iraqi government entity, whether or not arising
from actions relating to Iraq's invasion of Kuwait. Claims may also
relate to losses suffered by a foreign partnership, joint venture,
corporation or other entity in which U.S. nationals have a significant
interest.
(56 FR 5637, Feb. 11, 1991)
31 CFR 575.605 Subpart G -- Penalties
31 CFR 575.701 Penalties.
(a) Section 586E of the Iraq Sanctions Act of 1990, Public Law
101-513, 104 Stat. 2049, provides that, notwithstanding section 206 of
the International Emergency Economic Powers Act (50 U.S.C. 1705) and
section 5(b) of the United Nations Participation Act of 1945 (22 U.S.C.
287c(b)) --
(1) A civil penalty of not to exceed $250,000 may be imposed on any
person who, after the enactment of this Act, violates or evades or
attempts to violate or evade Executive Order Number 12722, 12723, 12724,
12725, or any license, order, or regulation issued under any such
Execution Order;
(2) Whoever after the date of enactment of this Act willfully
violates or evades or attempts to violate or evade Executive Order
Number 12722, 12723, 12724, or 12725 or any license, order, or
regulation issued under any such Executive Order --
(i) shall, upon conviction, be fined not more than $1,000,000 if a
person other than a natural person; or
(ii) if a natural person, shall, upon conviction, be fined not more
than $1,000,000, be imprisoned for not more than 12 years, or both.
(3) Any officer, director, or agent of any corporation who knowingly
participates in a violation, evasion, or attempt described in paragraph
(a)(2) of this section may be punished by imposition of the fine,
imprisonment (or both) specified in paragraph (a)(2)(ii) of this
section.
(b) Attention is directed to the United Nations Participation Act, 22
U.S.C. 287c(b), which provides that any person who willfully violates or
evades or attempts to violate or evade any order, rule, or regulation
issued by the President pursuant to the authority granted in that
section shall, upon conviction, be fined not more than $10,000 or, if a
natural person, be imprisoned for not more than ten years, or both; and
the officer, director or agent of any corporation who knowingly
participates in such violation or evasion shall be punished by a similar
fine, imprisonment or both, and any property, funds, securities, papers,
or other articles or documents, or any vessel, together with tackle,
apparel, furniture, and equipment, or vehicle, or aircraft, concerned in
such violation shall be forfeited to the United States.
(c) Attention is directed to 18 U.S.C. 1001, which provides that
whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representation or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
(d) Violations of this part may also be subject to relevant
provisions of the Customs laws and other applicable laws.
31 CFR 575.702 Prepenalty notice.
(a) When required. If the Director of the Office of Foreign Assets
Control has reasonable cause to believe that there has occurred a
violation of any provision of this part or a violation of the provisions
of any license, ruling, regulation, order, direction or instruction
issued by or pursuant to the direction or authorization of the Secretary
of the Treasury pursuant to this part or otherwise under the
International Emergency Economic Powers Act, and the Director determines
that further proceedings are warranted, he shall issue to the person
concerned a notice of his intent to impose a monetary penalty. The
prepenalty notice shall be issued whether or not another agency has
taken any action with respect to this matter.
(b) Contents -- (1) Facts of violation. The prepenalty notice shall
describe the violation, specify the laws and regulations allegedly
violated, and state the amount of the proposed monetary penalty.
(2) Right to make presentations. The prepenalty notice also shall
inform the person of his right to make a written presentation within 30
days of mailing of the notice as to why a monetary penalty should not be
imposed, or, if imposed, why it should be in a lesser amount than
proposed.
31 CFR 575.703 Presentation responding to prepenalty notice.
(a) Time within which to respond. The named person shall have 30
days from the date of mailing of the prepenalty notice to make a written
presentation to the Director.
(b) Form and contents of written presentation. The written
presentation need not be in any particular form, but shall contain
information sufficient to indicate that it is in response to the
prepenalty notice. It should contain responses to the allegations in
the prepenalty notice and set forth the reasons why the person believes
the penalty should not be imposed or, if imposed, why it should be in a
lesser amount than proposed.
31 CFR 575.704 Penalty notice.
(a) No Violation. If, after considering and presentations made in
response to the prepenalty notice and any relevant facts, the Director
determines that there was no violation by the person named in the
prepenalty notice, he promptly shall notify the person in writing of the
determination and that no monetary penalty will be imposed.
(b) Violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was a violation by the person named in the prepenalty notice, he
promptly shall issue a written notice of the imposition of the monetary
penalty to that person.
31 CFR 575.705 Referral to United States Department of Justice.
In the event that the person named does not pay the penalty imposed
pursuant to this subpart or make payment arrangements acceptable to the
Director within 30 days of the mailing of the written notice of the
imposition of the penalty, the matter shall be referred to the United
States Department of Justice for appropriate action to recover the
penalty in a civil suit in a Federal district court.
31 CFR 575.705 Subpart H -- Procedures
31 CFR 575.801 Licensing.
(a) General Licenses. General licenses have been issued authorizing
under appropriate terms and conditions certain types of transactions
which are subject to the prohibitions contained in subpart B of this
part. All such licenses in effect on the date of publication are set
forth in subpart E of this part. It is the policy of the Office of
Foreign Assets Control not to grant applications for specific licenses
authorizing transactions to which the provisions of an outstanding
general license are applicable. Persons availing themselves of certain
general licenses may be required to file reports and statements in
accordance with the instructions specified in those licenses. Failure
to file such reports or statements will nullify the authority of the
general license.
(b) Specific licenses -- (1) General course of procedure.
Transactions subject to the prohibitions contained in subpart B of this
part which are not authorized by general license may be effected only
under specific licenses.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transactions prohibited by or pursuant to this
part may be filed by letter with the Office of Foreign Assets Control.
Any person having an interest in a transaction or proposed transaction
may file an application for a license authorizing such transaction, but
the applicant for a specific license is required to make full disclosure
of all parties in interest to the transaction so that a decision on the
application may be made with full knowledge of all relevant facts and so
that the identity and location of the persons who know about the
transaction may be easily ascertained in the event of inquiry.
(3) Information to be supplied. The applicant must supply all
information specified by relevant instructions and/or forms, and must
fully disclose the names of all the parties who are concerned with or
interested in the proposed transaction. If the application is filed by
an agent, the agent must disclose the name of his principal(s). Such
documents as may be relevant shall be attached to each application as a
part of such application except that documents previously filed with the
Office of Foreign Assets Control may, where appropriate, be incorporated
by reference. Applicants may be required to furnish such further
information as is deemed necessary to a proper determination by the
Office of Foreign Assets Control. Any applicant or other party in
interest desiring to present additional information or discuss or argue
the application may do so at any time before or after decision.
Arrangements for oral presentation shall be made with the Office of
Foreign Assets Control.
(4) Effect of denial. The denial of a license does not preclude the
reopening of an application or the filing of a further application. The
applicant or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition for the issuance
of any license, the licensee may be required to file reports with
respect to the transaction covered by the license, in such form and at
such times and places as may be prescribed in the license or otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the Treasury
or licenses may be issued by the Secretary of the Treasury acting
directly or through any specifically designated person, agency, or
instrumentality.
(c) Address. License applications, reports, and inquiries should be
addressed to the appropriate section or individual within the Office of
Foreign Assets Control, or to its Director, at the following address:
Office of Foreign Assets Control, U.S. Department of the Treasury, 1500
Pennsylvania Avenue, NW., Annex, Washington, DC 20220.
31 CFR 575.802 Decisions.
The Office of Foreign Assets Control will advise each applicant of
the decision respecting filed applications. The decision of the Office
of Foreign Assets Control acting on behalf of the Secretary of the
Treasury with respect to an application shall constitute final agency
action.
31 CFR 575.803 Amendment, modification, or revocation.
The provisions of this part and any rulings, licenses, whether
general or specific, authorizations, instructions, orders, or forms
issued hereunder may be amended, modified, or revoked at any time.
31 CFR 575.804 Rulemaking.
(a) All rules and other public documents are issued by the Secretary
of the Treasury upon recommendation of the Director of the Office of
Foreign Assets Control. In general, rulemaking by the Office of Foreign
Assets Control involves foreign affairs functions of the United States,
and for that reason is exempt from the requirements under the
Administrative Procedure Act (5 U.S.C. 553) for notice of proposed
rulemaking, opportunity for public comment, and delay in effective date.
Wherever possible, however, it is the practice of the Office of Foreign
Assets Control to receive written submissions or hold informal
consultations with interested parties before the issuance of any rule or
other public document.
(b) Any interested person may petition the Director of the Office of
Foreign Assets Control in writing for the issuance, amendment, or repeal
of any rule.
31 CFR 575.805 Delegation by the Secretary of the Treasury.
Any action which the Secretary of the Treasury is authorized to take
pursuant to Executive Order No. 12723 and Executive Order No. 12725
may be taken by the Director, Office of Foreign Assets Control, or by
any other person to whom the Secretary of the Treasury has delegated
authority so to act.
31 CFR 575.806 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control required by
the Freedom of Information Act (5 U.S.C. 552) to be made available to
the public shall be made available in accordance with the definitions,
procedures, requirements for payment of fees, and other provisions of
the Regulations on the Disclosure of Records of the Departmental Offices
and of other bureaus and offices of the Department of Treasury issued
under 5 U.S.C. 552 and published in part 1 of this title.
(b) The records of the Office of Foreign Assets Control required by
the Privacy Act (5 U.S.C. 552a) to be made available to an individual
shall be made available in accordance with the definitions, procedures,
requirements for payment of fees, and other provisions of the
Regulations on Disclosure of Records of the Departmental Offices and of
other bureaus and offices of the Department of the Treasury issued under
5 U.S.C. 552a and published in part 1 of this title.
(c) Any form used in connection with the Iraqi Sanctions Regulations
may be obtained in person from or by writing to the Office of Foreign
Assets Control, U.S. Department of the Treasury, 1500 Pennsylvania
Avenue, NW., Washington, DC 20220.
(57 FR 1391, Jan. 14, 1992)
31 CFR 575.806 Subpart I -- Paperwork Reduction Act
31 CFR 575.901 Paperwork Reduction Act notice.
The information collection requirements in 575.202(d), 575.503,
575.506, 575.509-575.511, 575.517, 575.518, 575.520, 575.521, 575.601,
575.602, 575.603, 575.703, and 575.801 have been approved by the Office
of Management and Budget and assigned control number 1505-0130. The
information collection requirements of 575.604 and the use of agency
form TDF 90-22.40 have been approved by the Office of Management and
Budget and assigned control number 1505-0128. The information
collection requirements of 575.605 and the use of agency form 90-22.41
have been approved by the Office of Management and Budget and assigned
control number 1505-0129.
(57 FR 6297, Feb. 24, 1992)
31 CFR 575.901 Pt. 575, App. A
31 CFR 575.901 Appendix A to Part 575 -- Individuals and Organizations
Determined To Be Specially Designated Nationals of the Government of
Iraq
Please note that addresses of companies and persons may change. The
addresses listed below are the last ones known to the Office of Foreign
Assets Control. Where an address is not listed or someone wishes to
check for latest address information, the Office of Foreign Assets
Control will assist with any updated information in its possession.
Admincheck Limited, 1 Old Burlington Street, London, England, United
Kingdom
Advanced Electronics Development, Ltd., 3 Mandeville Place, London,
England, United Kingdom
Al-Arabi Trading Company Limited, Lane 11, Hai Babil, Baghdad
District 929, Iraq
Al-Rafidain Shipping Company, Bombay, India
The Arab Petroleum Engineering Company Ltd., Amman, Jordan
Arab Projects Company S.A. Ltd., P.O. Box 1318, Amman, Jordan
P.O. Box 7939, Beirut, Lebanon
P.O. Box 1972, Riyadh, Saudi Arabia
Archi Centre I.C.E. Limited, 3 Mandeville Place, London, England,
United Kingdom
Archiconsult Limited, 128 Buckingham Place, London 5, England, United
Kingdom
Associated Engineers, England, United Kingdom
A.T.E. International Ltd., f/k/a RWR International Commodities, 3
Mandeville Place, London, England, United Kingdom
Atlas Air Conditioning Company Limited, 55 Roebuck House, Palace
Street, London, England, United Kingdom
Atlas Equipment Company Limited, 55 Roebuck House, Palace Street,
London, England, United Kingdom
A.W.A. Engineering Limited, 3 Mandeville Place, London, England,
United Kingdom
Banco Brasileiro-Iraquiano S.A., Praca Pio X, 54-10o Andar, CEP
20091, Rio de Janeiro, Brazil (Head office and city branch)
Bay Industries, Inc., 10100 Santa Monica Boulevard, Santa Monica,
California, United States
Dominion International, England, United Kingdom
Endshire Export Marketing, England, United Kingdom
Euromac, Ltd., 4 Bishops Avenue, Northwood, Middlesex, England,
United Kingdom
Euromac European Manufacturer Center SRL, Via Ampere 5, 20052 Monza,
Italy
Euromac Transporti International SRL, Via Ampere 5, 20052 Monza,
Italy
Falcon Systems, England, United Kingdom
Geodesigns, England, United Kingdom
Investacast Precision Castings, Ltd., 112 City Road, London, England,
United Kingdom
I.P.C. International Limited, England, United Kingdom
I.P.C. Marketing Limited, England, United Kingdom
Iraqi Airways, Saddam International Airport, Baghdad, Iraq
Opernring 6, 1010 Wien, Vienna, Austria
General Service Agent, Bangladeshi-owned Travel Agency, Dhaka,
Bangladesh
Rio de Janeiro, Brazil
Jianguomenwai Diplomatic Housing Compound, Building 7-1, 5th Floor,
Apartment 4, Beijing, People's Republic of China
Prague Airport, Prague, Czechoslovakia
Nekazanka 3, Prague 1, Czechoslovakia
Copenhagen, Denmark
Main Eisenhuttenplatz 26, Frankfurt 6, Germany
Rome, Italy
Tokyo, Japan
Casablanca, Morocco
The Netherlands
27, Ulica Grojecka, Central Warsaw, Poland
Tunis, Tunisia
Ankara, Turkey
Moscow, U.S.S.R.
Abu Dhabi, United Arab Emirates
4 Lower Regent Street, London SW1Y 4P, United Kingdom
5825 W. Sunset Blvd. 218, Los Angeles, California 90028, United
States
25040 Southfield Road, Southfield, Michigan 48075, United States
Building 68, J.F.K. International Airport, Jamaica, New York 11430,
United States
1211 Avenue of the Americas, New York, New York 10036, United States
Sanaa, Yemen
Belgrade, Yugoslavia
Iraqi Allied Services Limited, England, United Kingdom
Iraqi Freight Services Limited, England, United Kingdom
Iraqi Reinsurance Company, 31-35 Fenchurch Street, London EC3M 3D,
United Kingdom
Iraqi State Enterprise for Foodstuffs Trading, P.O. Box 1308, Colombo
3, Sri Lanka
P.O. Box 2839, Calcutta 700.001, India
Iraqi State Enterprise for Maritime Transport, Bremen, Germany
Amman, Jordan
Iraqi Trade Center, Dubai, United Arab Emirates
Keencloud Limited, 11 Catherine Place, Westminister, London, England,
United Kingdom
Matrix Churchill Corporation, 5903 Harper Road, Cleveland, Ohio
44139, United States
Meed International Limited, 3 Mandeville Place, London, England,
United Kingdom
Pandora Shipping Co., S.A., Honduras
Petra Navigation & International Trading Co. Ltd., White Star
Building., P.O. Box 8362, Amman, Jordan
Armoush Bldg., P.O. Box 485, Aqaba, Jordan
18 Huda Sharawi Street, Cairo, Egypt
Hai Al Wahda Mahalat 906, 906 Zulak 50, House 14, Baghdad, Iraq
Rafidain Bank, New Banks' Street, P.O. Box 11360, Massarif, Baghdad,
Iraq (227 branches in Iraq)
P.O. Box 607, Manama, Bahrain (2 branches in Bahrain)
114 Tahreer Str. Eldukki, P.O. Box 239, Omran Giza, Cairo, Egypt
P.O. Box 1194, Cinema al-Hussein Street, Amman, Jordan
P.O. Box 685, Aqaba, Jordan
P.O. Box 815401, Jabal Amman, Jordan
Mafraq, Jordan
2nd Floor Sadat Tower, P.O. Box 1891, Beirut, Lebanon (2 branches in
Lebanon)
Sheikh Khalifa Street, P.O. Box 2727, Abu Dhabi, United Arab Emirates
Rafidain Bank Building, 7-10 Leadenhall Street, London EC3V 1NL,
United Kingdom
P.O. Box 10023, Sanaa, Yemen Arab Republic
Rajbrook Limited, England, United Kingdom
Reynolds and Wilson, England, United Kingdom
S.M.I. Sewing Machines Italy S.P.A., Italy
Technology and Development Group Ltd., Centric House 390/391, Strand,
London, England, United Kingdom
T.E.G. Limited, 3 Mandeville Place, London, England, United Kingdom
T.M.G. Engineering Limited, Castle Row, Horticultural Place,
Chiswick, London, England, United Kingdom
T N K Fabrics Limited, England, United Kingdom
Trading & Maritime Investments, San Lorenzo, Honduras
U.I. International, England, United Kingdom
Whale Shipping Ltd., c/o Government of Iraq, State Organization of
Ports, Maqal, Basrah, Iraq
Abbas, Abdul Hussein, Italy
Abbas, Kassim, Italy
Abraham, Trevor, England, United Kingdom
Ahmad, Rasem, P.O. Box 1318, Amman, Jordan
Ahmad, Wallid Issa, Iraq
Al-Amiri, Adnan Talib Hassim, 43 Palace Mansions, Hammersmith,
London, England, United Kingdom
Al-Azawi, Dafir, Iraq
Al-Dajani, Leila N.S., P.O. Box 1318, Amman, Jordan
Al-Dajani, Nadim S., P.O. Box 1318, Amman, Jordan
Al-Dajani, Sa'ad, P.O. Box 1318, Amman, Jordan
Al-Habobi, Dr. Safa Haji J., Flat 4D Thorney Court, Palace Gate,
Kensington, England, United Kingdom
Ali, Abdul Mutalib, Germany
Allen, Peter Francis, ''Greys'', 36 Stoughton Lane, Stoughton,
Leicestershire, England, United Kingdom
Al-Majid, Ali Hassan, Baghdad, Iraq
Al-Majid, Hussein Kamel Hassan, Baghdad, Iraq
Al-Ogaily, Akram H., Flat 2, St. Ronons Court, 63 Putney Hill,
London, England, United Kingdom
Al-Takriti, Barzan Ibrahim Hassan, Geneva, Switzerland
Al-Takriti, Sabawi Ibrahim Hassan, Baghdad, Iraq
Al-Takriti, Watban, Baghdad, Iraq
Amaro, Joaquim Ferreira, Praca Pio X, 54-10 Andar, CEP 20091, Rio de
Janeiro, Brazil
Armoush, Ahmad, White Star Bldg., P.O. Box 8362, Amman, Jordan
Armoush, Ali, White Star Bldg., P.O. Box 8362, Amman, Jordan
Aziz, Fouad Hamza, Pracia Pio X, 54-10 Andar, CEP 20091, Rio de
Janeiro, Brazil
Daghir, Ali Ashour, 2 Western Road, Western Green, Thames Ditton,
Surrey, England, United Kingdom
Fattah, Jum'a Abdul, P.O. Box 1318, Amman, Jordan
Hand, Michael Brian, England, United Kingdom
Henderson, Paul, 4 Copt Oak Close, Tile Mill, Coventry, Warwickshire,
England, United Kingdom
Hussein, Udai Saddam, Baghdad, Iraq
Jasim, Latif Nusayyif, Baghdad, Iraq
Jon, Hana Paul, 19 Tudor House, Windsor Way, Brook Green, London,
England, United Kingdom
Jume'an, George, P.O. Box 1318, Amman, Jordan
Kadhum, Dr. Fadel Jawad, c/o Alvaney Court, 250 Finchley Road,
London, England, United Kingdom
Khoshaba, Robert Kambar, 15 Harefield Road, Maidenhead, Berkshire,
England, United Kingdom
Mohamed, Abdul Kader Ibrahim, Jianguomenwai Diplomatic Housing
Compound, Building 7-1, 5th Floor, Apartment 4, Beijing, People's
Republic of China
Omran, Karim Dhaidas, Iraq
Raouf, Khalid Mohammed, Praca Pio X, 54-10 Andar, CEP 20091, Rio de
Janeiro, Brazil
Ricks, Roy, 87 St. Mary's Frice, Benfleet, Essex, England, United
Kingdom
Schmitt, Rogerio Eduardo, Praca Pio X, 54-10 Andar, CEP 20091, Rio
de Janeiro, Brazil
Sim, Gilberto F., Praca Pio X, 54-10 Andar, CEP 20091, Rio de
Janeiro, Brazil
Souza, Francisco Antonio, Praca Pio X, 54-10 Andar, CEP 20091, Rio
de Janeiro, Brazil
Speckman, Jeanine, England, United Kingdom
Tall, Aktham, P.O. Box 1318, Amman, Jordan
Taveira, A. Arnaldo G., Praca Pio X, 54-10 Andar, CEP 20091, Rio de
Janeiro, Brazil
Zahran, Yousuf, P.O. Box 1318, Amman, Jordan
(56 FR 13585, Apr. 3, 1991, as amended at 56 FR 29121, June 25, 1991;
56 FR 48104, Sept. 24, 1991)
31 CFR 575.901 Pt. 575, App. B
31 CFR 575.901 Appendix B to Part 575 -- Merchant Vessels Registered,
Owned, Or Controlled by the Government of Iraq or by Persons Acting
Directly or Indirectly on Behalf of the Government of Iraq
All ships listed or Iraqi-flagged unless otherwise indicated.
''N/A'' is listed where information is not available.
(56 FR 13587, Apr. 3, 1991)
31 CFR 575.901 Pt. 580
31 CFR 575.901 PART 580 -- HAITIAN TRANSACTIONS REGULATIONS
31 CFR 575.901 Subpart A -- Relation of this Part to Other Laws and
Regulations
Sec.
580.101 Relation of this part to other laws and regulations.
31 CFR 575.901 Subpart B -- Prohibitions
580.201 Prohibited transactions involving property in which the
Government of Haiti has an interest; transactions with respect to
securities.
580.202 Prohibited payments or transfers to the de facto regime in
Haiti.
580.203 Holding of certain types of blocked property in
interest-bearing accounts.
580.204 Effect of transfers violating the provisions of this part.
580.205 Prohibited importation of goods or services from Haiti.
580.206 Prohibited exportation of goods, technology or services to
Haiti.
580.207 Exemption of informational materials.
580.208 Prohibited grants or extensions of credits or loans.
580.209 Evasions.
580.210 Effective date.
580.211 Entry of vessels engaged in trade with Haiti.
31 CFR 575.901 Subpart C -- General Definitions
580.301 Blocked account; blocked property.
580.302 Credits.
580.303 De facto regime in Haiti.
580.304 Effective date.
580.305 Entity.
580.306 General license.
580.307 Government of Haiti.
580.308 Haiti.
580.309 Haitian origin.
580.310 Informational materials.
580.311 Interest.
580.312 License.
580.313 Person.
580.314 Property; property interest.
580.315 Specific license.
580.316 Transfer.
580.317 United States.
580.318 U.S. financial institution.
580.319 United States person; U.S. person.
31 CFR 575.901 Subpart D -- Interpretations
580.401 Reference to amended sections.
580.402 Effect of amendment.
580.403 Termination and acquisition of an interest of the Government
of Haiti.
580.404 Payments to the de facto regime in Haiti prohibited;
procedures for making payments to the Federal Reserve Bank of New York.
580.405 Indirect payments to the de facto regime in Haiti; payments
by subsidiaries in third countries.
580.406 Setoffs prohibited.
580.407 Payments in kind.
580.408 Offshore transactions.
580.409 Transshipments through the United States prohibited.
580.410 Importation from third countries; transshipments.
580.411 Exportation to third countries; transshipments.
580.412 Importation into and release from bonded warehouse or foreign
trade zone.
31 CFR 575.901 Subpart E -- Licenses, Authorizations, and Statements of
Licensing Policy
580.501 Effect of license or authorization.
580.502 Exclusion from licenses and authorizations.
580.503 Payments and transfers to blocked accounts in U.S. financial
institutions.
580.504 Importation of household and personal effects.
580.505 Transactions related to telecommunications authorized.
580.506 Transactions related to mail authorized.
580.507 Transactions related to informational materials.
580.508 Importation of certain machinery, parts and materials.
580.509 Reserve accounts.
580.510 Commercial exportation of medicines and medical supplies.
580.511 Diplomatic pouches authorized.
580.512 Importation of certain gifts authorized.
580.513 Certain exportations for the Organization of American States.
580.514 Investment and reinvestment of Government of Haiti funds held
in blocked accounts.
580.515 Importation from and exportation to assembly/production
operations.
31 CFR 575.901 Subpart F -- Reports
580.601 Required records.
580.602 Reports to be furnished on demand.
580.603 Registration of persons holding blocked property subject to
580.201.
31 CFR 575.901 Subpart G -- Penalties
580.701 Penalties.
580.702 Prepenalty notice.
580.703 Presentation responding to prepenalty notice.
580.704 Penalty notice.
580.705 Referral to United States Department of Justice.
580.706 Seizure of shipments.
31 CFR 575.901 Subpart H -- Procedures
580.801 Licensing.
580.802 Decisions.
580.803 Amendment, modification, or revocation.
580.804 Rulemaking.
580.805 Delegation by the Secretary of the Treasury.
580.806 Rules governing availability of information.
580.807 Customs procedures: merchandise specified in 580.205.
31 CFR 575.901 Subpart I -- Paperwork Reduction Act
580.901 Paperwork Reduction Act notice.
Authority: 50 U.S.C. 1701 et seq.; E.O. 12775, 56 FR 50641 (Oct. 7,
1991); E.O. 12779, 56 FR 55975 (Oct. 30, 1991).
Source: 57 FR 10821, Mar. 31, 1992, unless otherwise noted.
31 CFR 575.901 Subpart A -- Relation of This Part to Other Laws and Regulations
31 CFR 580.101 Relation of this part to other laws and regulations.
(a) This part is separate from, and independent of, the other parts
of this chapter. No license or authorization contained in or issued
pursuant to those other parts authorizes any transaction prohibited by
this part. No license or authorization contained in or issued pursuant
to any other provision of law or regulations authorizes any transaction
prohibited by this part.
(b) No license or authorization contained in or issued pursuant to
this part relieves the involved parties from complying with any other
applicable laws or regulations.
31 CFR 580.101 Subpart B -- Prohibitions
31 CFR 580.201 Prohibited transactions involving property in which the
Government of Haiti has an interest; transactions with respect to
securities.
(a) Except as authorized by regulations, orders, directives,
licenses, or otherwise, all property and interests in property of the
Government of Haiti, that are in the United States, that hereafter come
within the United States, or that are or hereafter come within the
possession or control of United States persons including their overseas
branches, are blocked.
(b) Except as authorized by regulations, orders, directives,
licenses, or otherwise, no property or interest in property of the
Government of Haiti that is in the United States, that hereafter comes
within the United States, or that is or hereafter comes within the
possession or control of U.S. persons, including their overseas
branches, may be transferred, paid, exported, withdrawn or otherwise
dealt in.
(c) Unless authorized by a license expressly referring to this
section, the acquisition, transfer (including the transfer on the books
of any issuer or agent thereof), disposition, transportation,
importation, exportation, or withdrawal of, or the endorsement or
guaranty of signatures on, or otherwise dealing in any security (or
evidence thereof) registered or inscribed in the name of the Government
of Haiti is prohibited irrespective of the fact that at any time (either
prior to, on, or subsequent to 12:23 p.m., e.d.t., October 4, 1991) the
registered or inscribed owner thereof may have, or appears to have,
assigned, transferred, or otherwise disposed of any such security.
31 CFR 580.202 Prohibited payments or transfers to the de facto regime
in Haiti.
Except as authorized by regulations, orders, directives, licenses, or
otherwise, no direct or indirect payments or transfers may be made to
the de facto regime in Haiti of funds, including currency, cash, or
coins of any nation, or of other financial or investment assets or
credits, by any United States person, or by any person organized under
the laws of Haiti and owned or controlled by a United States person.
All transfers or payments owed to the Government of Haiti shall be made
when due into an account at the Federal Reserve Bank of New York, as
provided in 580.404, or credited to a blocked reserve account, as
provided in 580.509.
31 CFR 580.203 Holding of certain types of blocked property in
interest-bearing accounts.
(a) Any person, including a U.S. financial institution, currently
holding property subject to 580.201 which, as of the effective date of
this section, December 12, 1991, or the date of receipt if subsequent to
the effective date, is not being held in an interest-bearing account, or
otherwise invested in a manner authorized by the Office of Foreign
Assets Control, shall transfer such property to, or hold such property
or cause such property to be held in, an interest-bearing account in a
U.S. financial institution with value as of the effective date of this
section or the date of receipt if subsequent to the effective date,
unless otherwise authorized or directed by the Office of Foreign Assets
Control. This requirement shall apply to currency, bank deposits,
accounts, any other financial assets, and any proceeds resulting from
the sale of tangible or intangible property. If interest is credited to
an account separate from that in which the interest-bearing asset is
held, the name of the account party on both accounts must be the same
and must clearly indicate the blocked Government of Haiti entity having
an interest in the accounts.
(b) For purposes of this section, the term ''interest-bearing
account'' means a blocked account in a U.S. financial institution
earning interest at rates that are commercially reasonable for the
amount of funds in the account. Except as otherwise authorized, the
funds may not be invested or held in instruments the maturity of which
exceeds 90 days.
(c) This section does not apply to blocked tangible property, such as
chattels, nor does it create an affirmative obligation on the part of
the holder of such blocked tangible property to sell or liquidate the
property and put the proceeds in a blocked account. However, the Office
of Foreign Asssets Control may issue licenses permitting or directing
sales of tangible property in appropriate cases.
31 CFR 580.204 Effect of transfers violating the provisions of this
part.
(a) Any transfer after 12:23 p.m., e.d.t., October 4, 1991, which is
in violation of any provision of this part or of any regulation, order,
directive, license, or other direction or authorization hereunder and
involves any property in which the Government of Haiti has or has had an
interest since such date, is null and void and shall not be the basis
for the assertion or recognition of any interest in or right, remedy,
power or privilege with respect to such property.
(b) No transfer before 12:23 p.m., e.d.t., October 4, 1991, shall be
the basis for the assertion or recognition of any right, remedy, power,
or privilege with respect to, or interest in, any property in which the
Government of Haiti has an interest, or has had an interest since such
date, unless the person with whom such property is held or maintained
had written notice of the transfer or by any written evidence had
recognized such transfer prior to such date.
(c) Unless otherwise provided, an appropriate license or other
authorization issued by or pursuant to the direction or authorization of
the Director of the Office of Foreign Assets Control before, during, or
after a transfer shall validate such transfer or render it enforceable
to the same extent as it would be valid or enforceable but for the
provisions of the International Emergency Economic Powers Act and this
part, and any ruling, order, regulation, direction or instruction issued
hereunder.
(d) Transfers of property which otherwise would be null and void or
unenforceable, by virture of the provisions of this section, shall not
be deemed to be null and void or unenforceable pursuant to such
provisions, as to any person with whom such property was held or
maintained (and as to such person only) in cases in which such person is
able to establish to the satisfaction of the Director of the Office of
Foreign Assets Control each of the following:
(1) Such transfer did not represent a willful violation of the
provisions of this part by the person with whom such property was held
or maintained;
(2) The person with whom such property was held or maintained did not
have reasonable cause to know or suspect, in view of all the facts and
circumstances known or available to such person, that such transfer
required a license or authorization by or pursuant to this part and was
not so licensed or authorized, or if a license or authorization did
purport to cover the transfer, that such license or authorization had
been obtained by misrepresentation of a third party or the withholding
of material facts or was otherwise fradulently obtained; and
(3) Promptly upon discovery that:
(i) Such transfer was in violation of the provisions of this part or
any regulation, ruling, instruction, license or other direction or
authorization hereunder, or
(ii) Such transfer was not licensed or authorized by the Office of
Foreign Assets Control, or
(iii) If a license did purport to cover the transfer, such license
had been obtained by misrepresentation of a third party or the
withholding of material facts or was otherwise fraudulently obtained;
the person with whom such property was held or maintained filed with
the Office of Foreign Assets Control, U.S. Treasury Department,
Washington, DC, a report setting forth in full the circumstances
relating to such transfer. The filing of a report in accordance with
the provisions of this paragraph shall not be deemed to be compliance or
evidence of compliance with paragraphs (d) (1) and (2) of this section.
(e) Unless licensed or authorized pursuant to this part, any
attachement, judgment, decree, lien, execution, garnishment or other
judicial process is null and void with respect to any property in which
on or since 12:23 p.m., e.d.t., October 4, 1991, there existed an
interest of the Government of Haiti.
31 CFR 580.205 Prohibited importation of goods or services from Haiti.
(a) Except as otherwise authorized, no goods or services of Haitian
origin, other than publications and other informational materials, may
be imported into the United States.
(b) The importation into the United States through 11:59 p.m.,
e.s.t., December 5, 1991, of goods containing parts of materials
exported to Haiti prior to 11:59 p.m., e.s.t., November 5, 1991, which
were assembled or processed into goods containing parts or materials
exported from the United States, is authorized.
Note to paragraph (b): Transactions authorized by paragraph (b) of
this section have been completed prior to publication of this part. The
text of paragraph (b) is included for the convenience of the user. See
also 580.508.
31 CFR 580.206 Prohibited exportation of goods, technology or services
to Haiti.
Except as otherwise authorized, no goods, technology (including
technical data or other information), or services may be exported from
the United States, either directly or indirectly, to Haiti, except (a)
publications and other informational materials, (b) donations of
articles intended to relieve human suffering, such as food, clothing,
medicine and medical supplies, and (c) rice, beans, sugar, wheat flour,
and cooking oil.
31 CFR 580.207 Exemption of informational materials.
(a) The importation from Haiti, and the exportation to Haiti, whether
commercial or otherwise, of informational materials, as defined in
580.310, are exempt from the prohibitions and regulations of this part.
(b) All transactions of common carriers incident to the importation
or exportation of informational materials between the United States and
Haiti are exempt from the prohibitions and regulations of this part.
(c) This section does not authorize transactions related to
informational materials not fully created and in existence at the date
of the transaction, or to the substantive or artistic alteration or
enhancement of informational materials, or to the provision of marketing
and business consulting services by a person subject to the jurisdiction
of the United States. Such prohibited transactions include, without
limitation, payment of advances for informational materials not yet
created and completed, provision of services to market, produce or
co-produce, create or assist in the creation of informational materials,
and payment of royalties to a person in Haiti with respect to income
received for enhancements or alterations made by U.S. persons to
informational materials imported from Haiti.
(d) This section does not authorize transactions incident to the
transmission of restricted technical data as defined in part 779 of the
Export Administration Regulations, 15 CFR parts 768 through 799, or to
the exportation of goods for use in the transmission of any data. The
exportation of such goods to Haiti is prohibited, as provided in
580.206 of this part and 785.1 of the Export Administration
Regulations.
Example 1: A U.S. publisher ships 500 copies of a book to Haiti
directly from Miami aboard a chartered aircraft, and receives payment by
a bank in Haiti. These are permissible transactions under this section.
Example 2: A Haitian party exports a single master copy of a
Haitian motion picture to a U.S. party and licenses the U.S. party to
duplicate, distribute, show and exploit in the United States the Haitian
film in any medium, including home video distribution, for five years,
with the Haitian party receiving 40% of the net income. The
transactions relating to the activities described in this example are
authorized under this section or 580.507.
Example 3: A U.S. recording company proposes to contract with a
Haitian musician to create certain musical compositions in Haiti and to
advance royalties of $10,000 to the musician. This is a prohibited
transaction. The U.S. party is prohibited under 580.206 from
contracting for the Haitian musician's services to be performed in
Haiti. No informational materials are in being at the time of this
proposed transaction. However, the U.S. recording company may propose
to contract with a Haitian musician for services to be performed outside
of Haiti, irrespective of whether the informational materials are in
being at the time of the proposed transaction, provided the Haitian
national is not acting on behalf of the de facto regime. See 580.206
and 580.309(c).
Example 4: A Haitian party enters into a sub-publication agreement
licensing a U.S. party to print and publish copies of a musical
composition and to sub-license rights of public performance, adaptation,
and arrangement of the musical composition, with payment to be a
percentage of income received. All transactions related to the
activities described in this example are authorized under this section
and 580.507, except for synchronization, adaptation, and arrangement,
which constitute artistic enhancement of the Haitian composition.
Payment to the Haitian party may not reflect income received as a result
of these enhancements.
31 CFR 580.208 Prohibited grants or extensions of credits or loans.
Except as authorized, no U.S. person may grant or extend credits or
loans to the Government of Haiti.
31 CFR 580.209 Evasions.
Any transaction for the purpose of, or which has the effect of,
evading or avoiding any of the prohibitions set forth in this subpart is
hereby prohibited.
31 CFR 580.210 Effective date.
The effective dates of the prohibitions and directives contained in
this subpart B are as follows:
(a) With respect to 580.201, 580.202, 580.204, 580.208, 580.209 and
580.210, 12:23 p.m., e.d.t., October 4, 1991;
(b) With respect to 580.205, 580.206 and 580.207, 11:59 p.m.,
e.s.t., November 5, 1991;
(c) With respect to 580.203, 12:00 p.m. e.s.t., December 12, 1991.
31 CFR 580.211 Entry of vessels engaged in trade with Haiti.
Except as otherwise authorized, any vessel that has called in Haiti
since the later of June 5, 1992 or the vessel's last call in the United
States (the ''reference date'') is prohibited from entering a U.S. port
unless it has demonstrated to the satisfaction of the Office of Foreign
Assets Control that all calls in Haiti since the reference date were for
transactions:
(a) Exempted or excepted from the prohibitions of this part if
engaged in by a U.S. person; or
(b) Specifically licensed by the Office of Foreign Assets Control, or
authorized by a member state of the Organization of American States
pursuant to MRE/RES. 3-92; or
(c) Under a contract of voyage that was fully completed prior to the
vessel's currently proposed entry into a U.S. port.
(57 FR 23955, June 5, 1992)
31 CFR 580.211 Subpart C -- General Definitions
31 CFR 580.301 Blocked account; blocked property.
The terms blocked account and blocked property shall mean any account
or property in which the Government of Haiti has an interest, and with
respect to which payments, transfers, exportations, withdrawals or other
dealings may not be made or effected except pursuant to an authorization
or license from the Office of Foreign Assets Control authorizing such
action.
31 CFR 580.302 Credits.
The term credits means any transfer or extension of funds or credit
on the basis of an obligation to repay, or any assumption or guarantee
of the obligation of another to repay an extension of funds or credit.
The term ''credits'' includes, but is not limited to: overdrafts;
purchases of debt securities issued by the Government of Haiti after
October 4, 1991; sales of financial assets subject to an agreement to
repurchase; renewals or refinancings whereby funds or credits are
transferred to or extended to the Government of Haiti; and draw-downs
on existing lines of credit.
31 CFR 580.303 De facto regime in Haiti.
(a) The term de facto regime in Haiti includes:
(1) Those who seized power illegally from the democratically elected
government of President Jean-Bertrand Aristide on September 30, 1991,
and any agencies, instrumentalities or entities purporting to act on
behalf of the de facto regime in Haiti or under the asserted authority
thereof, or any extraconstitutional successor thereto;
(2) Any partnership, association, corporation, or other organization
substantially owned or controlled by the foregoing;
(3) Any person to the extent that such person is, or has been, or to
the extent that there is reasonable cause to believe that such person
is, or has been, since 12:23 p.m., e.d.t., October 4, 1991, acting or
purporting to act directly or indirectly on behalf of any of the
foregoing; or
(4) Any other person or organization determined by the Director of
the Office of Foreign Assets Control to be included within this section.
Such determinations shall be published from time to time in the Federal
Register, but shall be binding prior to such publication upon any person
receiving actual notice thereof.
(b) A partnership, association, corporation, or other organization
shall not be deemed to fall within the definition of the de facto regime
in Haiti solely by reason of being located in, organized under the laws
of, or having its principal place of business in, Haiti.
31 CFR 580.304 Effective date.
The term effective date refers to the effective date of the
applicable prohibition, as identified in 580.210.
31 CFR 580.305 Entity.
The term entity includes a corporation, partnership, association, or
other organization.
31 CFR 580.306 General license.
The term general license means any license or authorization the terms
of which are set forth in this part.
31 CFR 580.307 Government of Haiti
The term Government of Haiti includes the state and the Government of
Haiti or any persons purporting to be the Government of Haiti (including
the de facto regime in Haiti), as well as any political subdivision,
agency, instrumentality or controlled entity thereof, including the
Banque de la Republique d'Haiti.
31 CFR 580.308 Haiti.
The term Haiti means the Republic of Haiti and all areas under the
jurisdiction or authority thereof.
31 CFR 580.309 Haitian origin.
The term goods or services of Haitian origin includes:
(a) Goods produced, manufactured, grown, extracted or processed
within Haiti;
(b) Goods which have entered into Haitian commerce; and
(c) Services performed in Haiti, or by a Haitian national, wherever
located, who is acting as an agent, employee, or contractor of the de
facto regime in Haiti.
31 CFR 580.310 Informational materials.
(a) For purposes of this part, the term informational materials
means:
(1) Publications, films, posters, phonograph records, photographs,
microfilms, microfiche, tapes, and other informational articles,
including tangible items described in the following:
(2) 15 CFR 799.1, Control List, Group 5, CL No. 7599I: microfilm
that reproduces the content of certain publications, and similar
materials;
(3) 15 CFR 799.1, Control List, Group 9, CL No. 7599I: certain
publications and related materials; and
(4) 15 CFR 799.3, General License GTDA, technical data available to
all destinations;
(b) The term informational materials does not include:
(1) Items that are controlled for export for national security
reasons under section 5 of the Export Administration Act of 1979, or
with respect to which acts are prohibited by chapter 37 of title 18 of
the United States Code; and
(2) Intangible items, such as telecommunications transmissions.
31 CFR 580.311 Interest.
Except as otherwise provided in this part, the term interest when
used with respect to property (e.g., ''an interest in property'') means
an interest of any nature whatsoever, direct or indirect.
31 CFR 580.312 License.
Except as otherwise specified, the term license means any license,
authorization, or directive contained in or issued by the Office of
Foreign Assets Control pursuant to this part.
31 CFR 580.313 Person.
The term person means an individual, partnership, association,
corporation, or other organization.
31 CFR 580.314 Property; property interest.
The terms property and property interest include, but are not limited
to, money, checks, drafts, bullion, bank deposits, savings accounts,
debts, indebtedness, obligations, notes, debentures, stocks, bonds,
coupons, any other financial instruments, bankers acceptances,
mortgages, pledges, liens or other rights in the nature of security,
warehouse receipts, bills of lading, trust receipts, bills of sale, any
other evidences of title, ownership or indebtedness, letters of credit
any documents relating to any rights or obligations thereunder, powers
of attorney, goods, wares, merchandise, chattels, stocks on hand, ships,
goods on ships, real estate mortgages, deeds of trust, vendors sales
agreements, land contracts, real estate and any interest therein,
leaseholds, ground rents, options, negotiable instruments, trade
acceptances, royalties, book accounts, accounts payable, judgements,
patents, trademarks or copyrights, insurance policies, safe deposit
boxes and their contents, annuities, pooling agreements, services of any
nature whatsoever, contracts of any nature whatsoever, and any other
property, real, personal, or mixed, tangible or intangible, or interest
or interests therein, present, future or contingent.
31 CFR 580.315 Specific license.
The term specific license means any license, authorization, or
directive not set forth in this part but issued by the Office of Foreign
Assets Control pursuant to this part in response to a written
application.
31 CFR 580.316 Transfer.
The term transfer means any actual or purported act of transaction,
whether or not evidenced by writing, and whether or not done or
performed within the United States, the purpose, intent, or effect of
which is to create, surrender, release, convey, transfer, or alter,
directly or indirectly, any right, remedy, power, privilege, or interest
with respect to any property and, without limitation upon the forgoing,
shall include the making, execution, or delivery of any assignment,
power, conveyance, check, declaration, deed, deed of trust, power of
attorney, power of appointment, bill of sale, mortgage, receipt,
agreement, contract, certificate, gift, sale, affidavit, or statement;
the appointment of any agent, trustee, or fiduciary; the creation or
transfer of any lien; the issuance, docketing, filing, or the levy of
or under any judgment, decree, attachment, injunction, execution, or
other judicial or administrative process or order, or the service of any
garnishment; the acquisition of any interest of any nature whatsoever
by reason of a judgment or decree of any foreign country; the
fulfillment of any condition; the exercise of any power of appointment,
power of attorney, or other power; or the acquisition, disposition,
transportation, importation, exportation, or withdrawal of any security.
31 CFR 580.317 United States.
The term United States means the United States, its territories and
possessions, and all areas under the jurisdiction or authority thereof.
31 CFR 580.318 U.S. financial institution.
The term U.S. financial institution means any U.S. person (including
foreign branches) that is engaged in the business of accepting deposits,
making, granting, transferring, holding, or brokering loans or credits,
or purchasing or selling foreign exchange, securities, commodity futures
or options, or procuring purchasers and sellers thereof, as principal or
agent; including, but not limited to, depository institutions, banks,
savings banks, trust companies, securities brokers and dealers,
commodity futures and options brokers and dealers, forward contract and
foreign exchange merchants, securities and commodities exchanges,
clearing corporations, investment companies, employee benefit plans, and
U.S. holding companies, U.S. affiliates, or U.S. subsidiaries of any of
the foregoing. This term includes those branches, offices and agencies
of foreign financial institutions which are located in the United
States, but not such institutions' foreign branches, offices, or
agencies.
31 CFR 580.319 United States person; U.S. person.
The term United States person or U.S. person means any United States
citizen; permanent resident alien; juridical person organized under
the laws of the United States or any jurisdiction within the United
States, including foreign branches; or any person in the United States.
31 CFR 580.319 Subpart D -- Interpretations
31 CFR 580.401 Reference to amended sections.
Except as otherwise specified, reference to any section of this part
or to any regulation, ruling, order, instruction, direction, or license
issued pursuant to this part shall be deemed to refer to the same as
currently amended.
31 CFR 580.402 Effect of amendment.
Any amendment, modification, or revocation of any section of this
part or of any order, regulation, ruling, instruction, or license issued
by or under the direction of the Director of the Office of Foreign
Assets Control shall not, unless otherwise specifically provided, be
deemed to affect any act done or omitted to be done, or any civil or
criminal suit or proceeding commenced or pending prior to such
amendment, modification, or revocation. All penalties, forfeitures, and
liabilities under any such order, regulation, ruling, instruction, or
license shall continue and may be enforced as if such amendment,
modification, or revocation had not been made.
31 CFR 580.403 Termination and acquisition of an interest of the
Government of Haiti.
(a) Whenever a transaction licensed or authorized by or pursuant to
this part results in the transfer of property (including any property
interest) away from the Government of Haiti, such property shall no
longer be deemed to be property in which the Government of Haiti has or
has had an interest unless there exists in the property another such
interest, the transfer of which has not been effected pursuant to
license or other authorization.
(b) Unless otherwise specifically provided in a license or
authorization issued pursuant to this part, if property (including any
property interest) is transferred to the Government of Haiti, such
property shall be deemed to be property in which there exists an
interest of the Government of Haiti.
31 CFR 580.404 Payments to the de facto regime in Haiti prohibited;
procedures for making payments to the Federal Reserve Bank of New York.
(a) The prohibitions on payments and transfer to the de facto regime
in Haiti in 580.202 shall apply to payments and transfers of any kind
whatsoever, including payment of debt obligations, fees, taxes, and
royalties owed to the Government of Haiti, and also including payment or
transfer of dividends, interest payments, and other periodic payments.
(b) Payments or transfers owed to the Government of Haiti shall be
made to ''Government of Haiti Account No. 021083909,'' established on
the books of the Federal Reserve Bank of New York pursuant to 580.202.
Payments or transfers of funds into Government of Haiti Account No.
021083909 over FedWire should be made using Typecode 15. The transfer
instructions should name ''Government of Haiti Account No. 021083909''
and identify the nature of the payment.
31 CFR 580.405 Indirect payments to the de facto regime in Haiti;
payments by subsidiaries in third countries.
The prohibitions in 580.202 on payments or transfers to the de facto
regime in Haiti apply to indirect payments (including reimbursement of a
non-U.S. person for payment) made after 12:23 p.m., e.d.t., October 4,
1991. Unlicensed payments or transfers made to the de facto regime in
Haiti from U.S. subsidiaries in third countries shall be considered an
evasion of the prohibitions set forth in 580.202 where such payments or
transfers prior to that date were normally made by U.S. persons,
including their foreign branches, or by persons organized under the laws
of Haiti and owned or controlled by U.S. persons. Payments or transfers
by third-country subsidiaries of U.S. persons which were routinely made
by such subsidiaries prior to October 4, 1991, however, are not
prohibited.
(57 FR 10821, Mar. 31, 1992, as amended at 57 FR 23955, June 5, 1992)
31 CFR 580.406 Setoffs prohibited.
(a) A setoff against a blocked account, whether by a U.S. financial
institution or other U.S. person, is a prohibited transfer under
580.202 if effected after 12:23 p.m., e.d.t., October 4, 1991.
(b) Except as licensed or otherwise authorized, a setoff as a method
of settling payments with the de facto regime in Haiti, as by netting or
canceling a debt or other obligation, is prohibited.
31 CFR 580.407 Payments in kind.
Payments in kind made to the de facto regime in Haiti in lieu of a
payment or transfer of funds, which term includes currency, cash or
coins of any nation, as well as other financial or investment assets or
credits, shall be considered an evasion of the prohibitions in subpart
B.
31 CFR 580.408 Offshore transactions.
The prohibitions contained in 580.201 apply to transactions by U.S.
persons in locations outside the United States with respect to property
in which the U.S. person knows, or has reason to know, that the
Government of Haiti has or has had an interest since the effective date.
31 CFR 580.409 Transshipments through the United States prohibited.
(a) The prohibitions in 580.206 apply to the importation into the
United States, for transshipment or transit, of goods or services which
are intended or destined for Haiti.
(b) The prohibitions in 580.205 apply to the importation into the
United States, for transshipment or transit, of goods or services of
Haitian origin which are intended or destined for third countries.
(c) Goods in which the Government of Haiti has an interest which are
imported into or transshipped through the United States are blocked
pursuant to 580.201.
31 CFR 580.410 Importation from third countries; transshipments.
(a) Importation into the United States from third countries of goods
containing raw materials or components of Haitian origin is not
prohibited if those raw materials or components have been incorporated
into manufactured products or substantially transformed in a third
country.
(b) Importation into the United States of goods of Haitian origin
that have been transshipped through a third country without being
incorporated into manufactured products or substantially transformed in
a third country is prohibited.
31 CFR 580.411 Exportation to third countries; transshipments.
Exportation of goods, technology (including technical data and other
information), or services from the United States is prohibited if the
exporter knows, or has reason to know, that the goods, technology or
services are intended for transshipment to Haiti (including passage
through, or storage in, intermediate destinations). The exportation
from the United States of goods or technology intended specifically for
incorporation or substantial transformation into a third-country product
is also prohibited if the particular product is to be used in Haiti, is
being specifically manufactured to fill a Haitian order, or if the
manufacturer's sales of the particular product are predominantly to
Haiti.
31 CFR 580.412 Importation into and release from bonded warehouse or
foreign trade zone.
The prohibitions in 580.205 apply to importation into a bonded
warehouse or a foreign trade zone of the United States. However,
580.205 does not prohibit the release from a bonded warehouse or a
foreign trade zone of goods of Haitian origin imported into a bonded
warehouse or a foreign trade zone prior to the effective date of
580.205 or in a transaction authorized pursuant to this part after the
effective date.
Note: Pursuant to 580.201, property in which the Government of
Haiti has an interest may not be released unless authorized or license
by the Office of Foreign Assets Control.
31 CFR 580.412 Subpart E -- Licenses, Authorizations, and Statements of Licensing Policy
31 CFR 580.501 Effect of license or authorization.
(a) No license or other authorization contained in this part, or
otherwise issued by or under the direction of the Director of the Office
of Foreign Assets Control, shall be deemed to authorize or validate any
transaction effected prior to the issuance of the license, unless
specifically provided in such license or authorization.
(b) No regulation, ruling, instruction, or license authorizes any
transaction prohibited under this part unless the regulation, ruling,
instruction, or license is issued by the Office of Foreign Assets
Control and specifically refers to this part. No regulation, ruling,
instruction, or license referring to this part shall be deemed to
authorize any transaction prohibited by any provision of this chapter
unless the regulation, ruling, instruction or license specifically
refers to such provision.
(c) Any regulation, ruling, instruction or license authorizing any
transaction otherwise prohibited under this part has the effect of
removing a prohibition or prohibitions in subpart B from the
transaction, but only to the extent specifically stated by its terms.
Unless the regulation, ruling, instruction or license otherwise
specifies, such an authorization does not create any right, duty,
obligation, claim, or interest in, or with respect to, any property
which would not otherwise exist under ordinary principles of law.
31 CFR 580.502 Exclusion from licenses and authorizations.
The Director of the Office of Foreign Assets Control reserves the
right to exclude any person from the operation of any license, or from
the privileges therein conferred, or to restrict the applicability
thereof with respect to particular persons, transactions or property or
classes thereof. Such action shall be binding upon all persons
receiving actual or constructive notice thereof.
31 CFR 580.503 Payments and transfers to blocked accounts in U.S.
financial institutions.
(a) Any payment of funds or transfer of credit or other assets,
including any payment or transfer by any U.S. person outside the United
States, to a blocked account in a U.S. financial institution located in
the United States in the name of the Government of Haiti is hereby
authorized, including incidental foreign exchange transactions, provided
that such payment or transfer shall not be made from any blocked account
if such payment or transfer represents, directly or indirectly, a
transfer of any interest of the Government of Haiti to any other country
or person.
(b) This section authorizes transfer of the funds of a blocked demand
deposit account to a blocked interest-bearing account under the same
name or designation as was used for the demand deposit account, as
required pursuant to 580.203 or at the instruction of the depositor, at
any time. If such transfer is to a blocked account in a different U.S.
financial institution, such transfer must be made to a blocked account
in a U.S. financial institution located in the United States, and the
transferee financial institution must furnish within 10 business days of
the date of transfer, the notification described in paragraph (h) of
this section to the Office of Foreign Assets Control, Blocked Assets
Division.
(c) This section does not authorize any transfer from a blocked
account within the United States to an account held outside the United
States.
(d) This section does not authorize any payment or transfer to any
blocked account held in a name other than that of the Government of
Haiti where such government is the ultimate beneficiary of such payment
or transfer.
(e) This section does not authorize any payment or transfer of credit
comprising an integral part of a transaction which cannot be effected
without the subsequent issuance of a further license.
(f) This section does not authorize the crediting of the proceeds of
the sale of securities or other assets, held in a blocked account or a
sub-account thereof, or the income derived from such securities or
assets, to a blocked account or sub-account under any name or
designation which differs from the name or designation of the specific
blocked account or sub-account in which such securities or assets were
or are held.
(g) This section does not authorize any payment or transfer from a
blocked account in a U.S. financial institution to a blocked account
held under any name or designation which differs from the name or
designation of the specific blocked account or sub-account from which
the payment or transfer is made.
(h) The authorization in paragraph (a) of this section is subject to
the condition that written notification from the U.S. financial
institution receiving an authorized payment or transfer is furnished to
the Office of Foreign Assets Control, Blocked Assets Division, within 10
business days from the date of payment or transfer. This notification
shall confirm that the payment or transfer has been deposited in a
blocked account under the regulations in this part and shall provide the
account number, the name and address of the Government of Haiti entity
in whose name the account is held, the name and address of the
transferee U.S. financial institution, the name and address of the
transferor financial institution, the amount of the payment or transfer,
and the name and telephone number of a contact person at the transferee
financial institution from whom compliance information may be obtained.
(i) This section authorizes the transfer of assets between blocked
accounts in U.S. financial institutions at the instruction of the
depositor for purposes of investment and reinvestment of assets in which
the Government of Haiti has an interest, as authorized in 580.514. If
such transfer is to a blocked account in a different U.S. financial
institution, the transferee financial institution must furnish within 10
business days of the date of transfer the notification described in
paragraph (h) of this section to the Office of Foreign Assets Control,
Blocked Assets Division.
31 CFR 580.504 Importation of household and personal effects.
(a) The importation of household and personal effects of Haitian
origin, including baggage and articles for family use, of a person
arriving in the United States directly or indirectly from Haiti is
authorized. Articles included in such effects may be imported without
limitation provided they were actually used by such person or family
abroad, are not intended for any other person or for sale, and are not
otherwise prohibited from importation.
(b) Persons departing the United States for Haiti are authorized to
export from the United States accompanying personal baggage and
accompanying personal effects.
31 CFR 580.505 Transactions related to telecommunications authorized.
All transactions of U.S. common carriers incident to the receipt or
transmission of telecommunications between the United States and Haiti
are authorized, provided any payment owed to the de facto regime in
Haiti is paid into a blocked account in a U.S. financial institution.
For purposes of this section, the term ''telecommunications'' shall mean
telephone, telex, and telegraph transmissions, and transmissions for the
gathering or broadcast of news.
31 CFR 580.506 Transactions related to mail authorized.
All transactions by U.S. persons, including payment and transfers to
common carriers incident to the receipt or transmission of mail between
the United States and Haiti, are authorized. For the purposes of this
section the term ''mail'' shall include parcels only to the extent the
parcels contain goods exempt from this part or otherwise eligible for
exportation to or importation from Haiti under a general or specific
license.
31 CFR 580.507 Transactions related to informational materials.
(a) All financial and other transactions directly incident to the
physical importation or exportation of informational materials are
authorized.
(b) Transactions relating to the dissemination of informational
materials are authorized, including remittance of royalties paid for
informational materials that are reproduced, translated, subtitled, or
dubbed. This section does not authorize the remittance of royalties or
other payments relating to works not yet in being, or for marketing and
business consulting services, or for artistic or other substantive
alteration or enhancements to informational materials, as provided in
580.207(c).
31 CFR 580.508 Importation of certain machinery, parts and materials.
(a) The importation into the United States through 11:59 p.m.,
e.s.t., December 5, 1991, of machinery owned or leased by U.S. persons
and used in Haiti in the assembly or processing of articles, including
spare parts for such machinery, is authorized.
(b) The importation into the United States through 11:59 p.m.,
e.s.t., December 5, 1991, of parts or materials exported to Haiti prior
to 11:59 p.m., e.s.t., November 5, 1991, which were intended to be
assembled or processed into goods containing parts or materials exported
from the United States, is authorized.
Note to paragraphs (a) and (b): Transactions authorized by
paragraphs (a) and (b) of this section have been completed prior to
publication of this part. The text of this general license is included
for the convenience of the user.
(c) Specific licenses may be issued on a case-by-case basis
authorizing the importation into the United States after 11:59 p.m.,
e.s.t., December 5, 1991, of machinery owned or leased by U.S. persons
and used in Haiti in the assembly or processing of articles, including
spare parts for such machinery, and parts or materials exported to Haiti
prior to 11:59 p.m., e.s.t., November 5, 1991, which were intended to be
assembled or processed into goods containing parts or materials exported
from the United States.
(d) Applications for specific licenses should be made in advance of
the proposed importation from Haiti. Applications for specific licenses
to import machinery should include a description of the machinery,
information regarding the interest of U.S. persons in the machinery, and
information regarding the use of the machinery in Haiti. Applications
for specific licenses to import parts or materials should provide
evidence of exportation to Haiti prior to the effective date and
evidence that the goods into which they were to be assembled or
processed would have contained parts exported from the United States
prior to the effective date. Such evidence may include, without
limitation, invoices, manifests, bills of lading, and other
documentation describing the parts and materials and establishing
shipment prior to the effective date.
31 CFR 580.509 Reserve accounts.
(a) United States persons and U.S.-controlled Haitian entities that
are required under 580.202 to make payments and transfers of certain
funds owed to the Government of Haiti into Government of Haiti Account
No. 021083909 at the Federal Reserve Bank of New York may elect instead
to apply for a specific license authorizing them to establish a blocked
reserve account on their books in the name of the Haitian governmental
entity to whom the amount is owed. Specific licenses may be issued to
permit the crediting of such reserve accounts for amounts due and owing
to the Government of Haiti, which amounts shall include the principal
amount of funds due, plus interest thereon, determined pursuant to
paragraph (b) of this section, accrued from the later of October 4,
1991, or the date that timely payment to the Government of Haiti was
required, to the date of crediting to the reserve account. In the case
of funds already credited to Government of Haiti Account No. 021083909,
specific licenses may be issued authorizing transfer of such amounts
(including accrued interest) to reserve accounts established pursuant to
this section. Such licenses are revocable and are conditioned upon
continued compliance with the requirements of this part. Upon
revocation of a license or at the direction of the Director of the
Office of Foreign Assets Control, the credit balances in such reserve
accounts must be funded and paid into Government of Haiti Account No.
021083909.
(b) Amounts credited to reserve accounts pursuant to this section
shall bear interest at a rate not less than the weekly average effective
Federal Funds rate, as published by the Federal Reserve Board,
applicable to each week of the period in which credit balances are
maintained pursuant to this section.
(c) If necessary to assure the availability of credit balances
blocked in reserve accounts pursuant to this section, the Director of
the Office of Foreign Assets Control may at any time require the
immediate funding and payment of such blocked credit balances into
Government of Haiti Account No. 021083909 at the Federal Reserve Bank
of New York, as provided in 580.404, or the supplying of any form of
security deemed necessary.
(d) A person receiving a specific license under paragraph (a) of this
section will be required to certify to the Office of Foreign Assets
Control within 15 business days after receipt of that license that it
has established the reserve account on its book as provided in paragraph
(a). Unless otherwise provided, a person licensed to establish such a
reserve account shall file monthly reports with the Office of Foreign
Assets Control setting forth all credits to the reserve account, and
interest payable in accordance with paragraph (b) of this section on the
reserve account, together with the nature of the debt and the name of
the Haitian governmental entity to which it is owed. The report shall
also contain a certification from an authorized official of the entity
submitting the report that the entity is in compliance with all other
requirements of this part.
31 CFR 580.510 Commercial exportation of medicines and medical
supplies.
Specific licenses may be issued on a case-by-case basis for
commercial shipments to Haiti for humanitarian purposes of medicine and
medical supplies. No shipment to the de facto regime in Haiti, or to
anyone acting for or on behalf of the de facto regime, will be licensed.
Applications for specific licenses should be made in advance of the
proposed exportation to Haiti, and should provide notice and evidence of
the nature, quantity, value, and purchaser of the articles to be
shipped.
31 CFR 580.511 Diplomatic pouches authorized.
The importation into the United States from Haiti, and the
exportation from the United States to Haiti, of diplomatic pouches and
their contents are permitted.
31 CFR 580.512 Importation of certain gifts authorized.
The importation into the United States is authorized for goods of
Haitian origin sent as gifts to persons in the United States where the
value of the gift is not more than $100.
31 CFR 580.513 Certain exportations for the Organization of American
States.
All transactions ordinarily incident to the exportation of any goods
or services from the United States for official or personal use by
personnel employed by the diplomatic missions of the Organization of
American States to Haiti are authorized, not for resale, and unless the
exportation is otherwise prohibited by law.
31 CFR 580.514 Investment and reinvestment of Government of Haiti funds
held in blocked accounts.
(a) U.S. financial institutions are hereby authorized to invest and
reinvest assets held in blocked accounts in the name of the Government
of Haiti, subject to the following conditions:
(1) The assets representing such investments and reinvestments are
credited to a blocked account or sub-account which is in the name of the
Government of Haiti and which is located in the United States or within
the possession or control of a U.S. person; and
(2) The proceeds of such investments and reinvestments are not
credited to a blocked account or sub-account under any name or
designation which differs from the name or designation of the specific
blocked account or sub-account in which such funds or securities were
held; and
(3) No immediate financial or economic benefit accrues (e.g., through
pledging or other use) to the de facto regime in Haiti.
(b) (1) U.S. persons seeking to avail themselves of this
authorization must register with the Office of Foreign Assets Control,
Blocked Assets Section, before undertaking transactions authorized under
this section.
(2) Transactions conducted pursuant to this section must be reported
to the Office of Foreign Assets Control, Blocked Assets Division, in a
report filed no later than 10 business days following the last business
day of the month in which the transactions occurred.
31 CFR 580.515 Importation from and exportation to assembly/production
operations.
(a) Specific licenses may be issued on a case-by-case basis
authorizing certain exportations from the United States to Haiti, and
importations into the United States from Haiti, by certain U.S. persons
engaged in the assembly or processing in Haiti of articles for export to
the United States which contain parts or materials exported from the
United States.
(b) A license must be issued prior to any exportation to or
importation from Haiti. Applications should be directed to the Office
of Foreign Assets Control and should provide the following information:
(1) Identification of the U.S. importer and the assembly or
processing operation in Haiti, including principal owners and managers.
If either the U.S. importer or the assembly or processing operation in
Haiti is owned by a Haitian person or persons, the name and address of
such person(s) shall be provided;
(2) A declaration that the Haitian assembly or processing operation
was producing articles for exportation to the United States prior to
November 6, 1991;
(3) A declaration that no United States person identified in
paragraph (b)(1) of this section has, since October 4, 1991, directly or
indirectly paid or transferred funds to the de facto regime or otherwise
engaged in any activity prohibited by Executive Orders 12775 and 12779;
(4) A description of the method by which any amounts owed to the
Government of Haiti (including the de facto regime) by United States
persons identified in paragraph (b)(1) of this section in connection
with the articles assembled or processed in Haiti are being paid (i.e.,
into an account at the Federal Reserve Bank of New York or as otherwise
authorized by the Office of Foreign Assets Control);
(5) A description of the article(s) assembled or produced in Haiti,
as well as the parts or materials they contain which are exported from
the United States; and
(6) A description of any tariff preference which will be claimed with
respect to the articles exported to the United States (e.g., a reduction
in dutiable value under subheading 9802.22.80, HTS, or duty-free
treatment under the Caribbean Basin Economic Recovery Act).
(c) Unless otherwise provided for in the license, the license shall
permit until its expiration date exportations and importations by the
named licensee for the purposes and under the conditions set forth in
the license. The licensee shall immediately advise the Office of
Foreign Assets Control of any action or event which materially affects
the accuracy or completeness of any statement or representation made in
the license application and shall refrain from engaging in any
transaction authorized by the license pending written authorization by
the Office of Foreign Assets Control.
(d) The licensee shall provide to the Office of Foreign Assets
Control, Licensing Division, within 30 days of the close of each three
month period following the date of issuance of the license a report
summarizing each transaction authorized by the license which was
undertaken during the reporting period. The report shall list the
description and quantity of all exports and imports, as well as the
dates and U.S. ports of exportation and importation.
31 CFR 580.515 Subpart F -- Reports
31 CFR 580.601 Required records.
(a) Except as otherwise provided, every person engaging in any
transaction subject to the provisions of this part shall keep a full and
accurate record of each transaction engaged in, regardless of whether
such transaction is effected pursuant to license or otherwise, and such
record shall be available for examination for at least 5 years after the
date of such transaction. Except as otherwise provided, every person
holding property subject to 580.201 shall keep a full and accurate
record of such property, and such record shall be available for
examination for the period of time that such property is blocked and for
at least 5 years after the date such property is unblocked.
(b) Any person, other than an individual, required to maintain
records pursuant to this section, must designate an individual to be
responsible for providing information concerning such records to the
Office of Foreign Assets Control when so requested.
31 CFR 580.602 Reports to be furnished on demand.
Every person is required to furnish under oath, in the form of
reports or otherwise, from time to time and at any time as may be
required, complete information relative to any transaction, regardless
of whether such transaction is effected pursuant to license or
otherwise, subject to the provisions of this part. Such reports may be
required to include the production of any books of account, contracts,
letters, or other papers connected with any such transaction or
property, in the custody or control of the person required to make such
reports. Reports with respect to transactions may be required either
before or after such transactions are completed. The Director of the
Office of Foreign Assets Control may, through any person or agency,
conduct investigations, hold hearings, administer oaths, examine
witnesses, receive evidence, take depositions, and require by subpoena
the attendance and testimony of witnesses and the production of all
books, papers, and documents relating to any matter under investigation,
regardless of whether any report has been required or filed in
connection therewith.
31 CFR 580.603 Registration of persons holding blocked property subject
to 580.201.
(a) Any individual holding property subject to 580.201 must register
with the Office of Foreign Assets Control, Blocked Assets Division by
the latter of April 30, 1992, or within 10 days after the date such
property is received or becomes subject to 580.201.
(b) Any person, other than an individual, holding property subject to
580.201 must register the person designated under 580.601(b) to be
responsible for providing information concerning records under
580.601(a) with the Ofice of Foreign Assets Control, Blocked Assets
Division by the later of April 30, 1992, or 10 days after the date such
property is received and becomes subject to 580.201.
31 CFR 580.603 Subpart G -- Penalties
31 CFR 580.701 Penalties.
(a) Attention is directed to section 206 of the International
Emergency Economic Powers Act (50 U.S.C. 1705), which provides that:
A civil penalty of not to exceed $10,000 may be imposed on any person
who violates any license, order, or regulation issued under the
International Emergency Economic Powers Act.
Whoever willfully violates any license, order, or regulation issued
under the International Emergency Economic Powers Act shall, upon
conviction, be fined not more than $50,000, or, if a natural person, may
be imprisoned for not more than ten years, or both; and any officer,
director, or agent of any corporation who knowingly participates in such
violation may be punished by a like fine, imprisonment, or both.
Section 206 of the International Emergency Economic Powers Act is
applicable to violations of any provision of this part and to violations
of the provisions of any license, ruling, regulation, order, direction,
or instruction issued by or pursuant to the direction or authorization
of the Secretary of the Treasury pursuant to this part or otherwise
under the International Emergency Economic Powers Act.
(b) Attention is directed to 18 U.S.C. 1001, which provides that:
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false fictitious or fraudulent statements or representations, or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
(c) Violations of this part may also be subject to relevant
provisions of the Customs laws and other applicable laws.
31 CFR 580.702 Prepenalty notice.
(a) When required. If the Director of the Office of Foreign Assets
Control (the ''Director'') has reasonable cause to believe that there
has occurred a violation of any provision of this part or a violation of
the provisions of any license, ruling, regulation, order, direction or
instruction issued by or pursuant to the direction or authorization of
the Director pursuant to this part or otherwise under the International
Emergency Economic Powers Act, and the Director determines that further
proceedings are warranted, he shall issue to the person concerned a
notice of his intent to impose a monetary penalty. The prepenalty
notice shall be issued whether or not another agency has taken any
action with respect to this matter.
(b) Contents -- (1) Facts of violation. The prepenalty notice shall
describe the violation, specify the laws and regulations allegedly
violated, and state the amount of the proposed monetary penalty.
(2) Right to make presentations. The prepenalty notice also shall
inform the person of his right to make a written presentation within 30
days of mailing of the notice as to why a monetary penalty should not be
imposed, or, if imposed, why it should be in a lesser amount than
proposed.
31 CFR 580.703 Presentation responding to prepenalty notice.
(a) Time within which to respond. The named person shall have 30
days from the date of mailing of the prepenalty notice to make a written
presentation to the Director.
(b) Form and contents of written presentation. The written
presentation need not be in any particular form, but shall contain
information sufficient to indicate that it is in response to the
prepenalty notice. It should contain responses to the allegations in
the prepenalty notice and set forth the reasons why the person believes
the penalty should not be imposed or, if imposed, why it should be in a
lesser amount than proposed.
31 CFR 580.704 Penalty notice.
(a) No violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was no violation by the person named in the prepenalty notice, he
promptly shall notify the person in writing of the determination and
that no monetary penalty will be imposed.
(b) Violation. If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there
was a violation by the person named in the prepenalty notice, he
promptly shall issue a written notice of the imposition of the monetary
penalty to that person.
31 CFR 580.705 Referral to United States Department of Justice.
In the event that the person named does not pay the penalty imposed
pursuant to this subpart to make payment arrangements acceptable to the
Director within 30 days of the mailing of the written notice of the
imposition of the penalty, the matter shall be referred to the United
States Department of Justice for appropriate action to recover the
penalty in a civil suit in a Federal district court.
31 CFR 580.706 Seizure of shipments.
Import shipments into the United States of goods of Haitian origin in
violation of 580.205 shall be seized. No such importation shall be
permitted to proceed, except as specifically authorized by the Office of
Foreign Assets Control. Such shipments shall be subject to licensing,
penalties, or seizure and forfeiture action pursuant to this part, the
Customs laws, or other applicable provisions of law, depending on the
circumstances.
31 CFR 580.706 Subpart H -- Procedures
31 CFR 580.801 Licensing.
(a) General licenses. General licenses have been issued authorizing
under appropriate terms and conditions certain types of transactions
which are subject to the prohibitions contained in subpart B of this
part. All such licenses are set forth in subpart E of this part. It is
the policy of the Office of Foreign Assets Control not to grant
applications for specific licenses authorizing transactions to which the
provisions of an outstanding general license are applicable. Persons
availing themselves of certain general licenses may be required to file
reports and statements in accordance with the instructions specified in
those licenses. Failure to file such reports or statements will nullify
the authority of the general license as to those persons.
(b) Specific licenses -- (1) General course of procedure.
Transactions subject to the prohibitions contained in Subpart B of this
part which are not authorized by general license may be effected only
under specific licenses.
(2) Applications for specific licenses. Applications for specific
licenses to engage in any transactions prohibited by or pursuant to this
part may be filed by letter with the Office of Foreign Assets Control.
Any person having an interest in a transaction or proposed transaction
may file an application for a license authorizing such transaction, but
the applicant for a specific license is required to make full disclosure
of all parties in interest to the transaction so that a decision on the
application may be made with full knowledge of all relevant facts and so
that the identity and location of the persons who know about the
transaction may be easily ascertained in the event of inquiry.
(3) Information to be supplied. The applicant must supply all
information specified by relevant instructions and/or forms, and must
fully disclose the names of all the parties who are concerned with or
interested in the proposed transaction. If the application is filed by
an agent, the agent must disclose the name of his principal(s). Such
documents as may be relevant shall be attached to each application as a
part of such application except that documents previously filed with the
Office of Foreign Assets Control may, where appropriate, be incorporated
by reference. Applicants may be required to furnish such further
information as is deemed necessary to a proper determination by the
Office of Foreign Assets Control. If an applicant or other party in
interest desires to present additional information or discuss or argue
the application, he may do so at any time before or after decision.
Arrangements for oral presentation should be made with the Office of
Foreign Assets Control.
(4) Effect of denial. The denial of a license does not preclude the
reopening of an application or the filing of a further application. The
applicant or any other party in interest may at any time request
explanation of the reasons for a denial by correspondence or personal
interview.
(5) Reports under specific licenses. As a condition upon the
issuance of any license, the licensee may be required to file reports
with respect to the transaction covered by the license, in such form and
at such times and places as may be prescribed in the license or
otherwise.
(6) Issuance of license. Licenses will be issued by the Office of
Foreign Assets Control acting on behalf of the Secretary of the Treasury
or licenses may be issued by the Secretary of the Treasury acting
directly or through any specifically designated person, agency, or
instrumentality.
(c) Address. License applications, reports, and inquiries should be
addressed to the appropriate division or individual within the Office of
Foreign Assets Control, or to its Director, at the following address:
Office of Foreign Assets Control, U.S. Department of the Treasury, 1500
Pennsylvania Avenue, NW., Annex, Washington, DC 20220.
31 CFR 580.802 Decisions
The office of Foreign Assets Control will advise each applicant of
the decision respecting filed applications. The decision of the Office
of Foreign Assets Control acting on behalf of the Secretary of the
Treasury with respect to an application shall constitute final agency
action.
31 CFR 580.803 Amendment, modification, or revocation.
The provisions of this part and any rulings; licenses, whether
general or specific; authorizations; instructions; orders; or forms
issued hereunder may be amended, modified, or revoked at any time.
31 CFR 580.804 Rulemaking.
(a) In general, rulemaking by the Office of Foreign Assets Control
involves foreign affairs functions of the United States, and for that
reason is exempt from the requirements under the administrative
Procedure Act (5 U.S.C. 553) for notice of proposed rulemaking,
opportunity for public comment, and delay in effective date. Wherever
possible, however, it is the practice of the Office of Foreign Assets
Control to receive written submissions or hold informal consultations
with interested parties before the issuance of any rule or other public
document.
(b) Any interested person may petition the Director of the Office of
Foreign Assets Control in writing for the issuance, amendment, or repeal
of any rule.
31 CFR 580.805 Delegation by the Secretary of the Treasury.
Any action which the Secretary of the Treasury is authorized to take
pursuant to Executive Orders 12775 and 12779 and any further Executive
orders relating to the national emergency declared with respect to Haiti
in Executive Order 12775 may be taken by the Director of the Office of
Foreign Assets Control.
31 CFR 580.806 Rules governing availability of information.
(a) The records of the Office of Foreign Assets Control which are
required by the Freedom of Information Act (5 U.S.C. 552) to be made
available to the public shall be made available in accordance with the
definitions, procedures, requirements for payment of fees, and other
provisions of the Regulations on the Disclosure of Records of the Office
of the Secretary and of other bureaus and offices of the Department of
the Treasury issued under 5 U.S.C. 552 and published as part 1 of this
title.
(b) The records of the Office of Foreign Assets Control required by
the Privacy Act (5 U.S.C. 552a) to be made available to an individual
shall be made available in accordance with the definitions, procedures,
requirements for payment of fees, and other provisions of the
Regulations on Disclosure of Records of the Departmental Office and of
other bureaus and offices of the Department of the Treasury issued under
5 U.S.C. 552a and published as part 1 of this title.
(c) Any form used in connection with the Haitian Transactions
Regulations may be obtained in person from or by writing to the Office
of Foreign Assets Control, U.S. Department of the Treasury, 1500
Pennsylvania Avenue, NW., Annex, Washington, DC 20220.
31 CFR 580.807 Customs procedures: merchandise specified in 580.205.
(a) With respect to goods specified in 580.205 and not otherwise
licensed or excepted from the scope of that section, appropriate Customs
officers shall not accept or allow any:
(1) Entry for consumption or warehouse (including any appraisement
entry, any entry of goods imported in the mails, regardless of value,
and any informal entries);
(2) Entry for immediate exportation;
(3) Entry for transportation and exportation;
(4) Withdrawal from warehouse;
(5) Admission, entry, transfer or withdrawal to or from a foreign
trade zone; or
(6) Manipulation or manufacture in a warehouse or in a foreign trade
zone.
(b) Customs officers shall accept or allow the importation of
Haitian-origin goods under the procedures listed in paragraph (a) of
this section if:
(1) The merchandise was imported prior to 11:59 p.m., e.s.t.,
November 5, 1991, or
(2) The merchandise was imported prior to 11:59 p.m., e.s.t.,
December 5, 1991, pursuant to 580.205(b) or 580.508 (a) or (b), or
(3) A specific license pursuant to this part is presented, or
(4) Instructions authorizing the transaction are received from the
Office of Foreign Assets Control.
(c) Whenever a specific license is presented to an appropriate
Customs officer in accordance with this section, one additional legible
copy of the entry, withdrawal or other appropriate document with respect
to the merchandise involved shall be filed with the appropriate Customs
officers at the port where the transaction is to take place. Each copy
of any such entry, withdrawal or other appropriate document, including
the additional copy, shall bear plainly on its face the number of the
license pursuant to which it is filed. The original copy of the
specific license shall be presented to the appropriate Customs officers
in respect of each such transaction and shall bear a notation in ink by
the licensee or person presenting the license showing the description,
quantity and value of the merchandise to be entered, withdrawn or
otherwise dealt with. This notation shall be so placed and so written
that there will exist no possibility of confusing it with anything
placed on the license at the time of its issuance. If the license in
fact authorizes the entry, withdrawal, or other transaction with regard
to the merchandise, the appropriate Customs officer, or other authorized
Customs employee, shall verify the notation by signing or initialing it
after first assuring himself that it accurately describes the
merchandise it purports to represent. The license shall thereafter be
returned to the person presenting it and the additional copy of the
entry, withdrawal or other appropriate document shall be forwarded by
the appropriate Customs officer to the Office of Foreign Assets Control.
(d) If it is unclear whether an entry, withdrawal or other action
affected by this section requires a specific license, the appropriate
Customs officer shall advise such person to communicate directly with
the Office of Foreign Assets Control to request that instructions be
sent to the Customs officer to authorize him to take action with regard
thereto.
31 CFR 580.807 Subpart I -- Paperwork Reduction Act
31 CFR 580.901 Paperwork Reduction Act notice.
The information collection requirements in 580.204(d), 580.503,
580.508, 580.509, 580.510, 580.514 580.515, 580.601, 580.602, 580.603,
580.703, and 580.801 have been approved by the Office of Management and
Budget under the Paperwork Reduction Act and assigned control number
1505-0133.
31 CFR 580.901 31 CFR Ch. VI (7-1-92 Edition)
31 CFR 580.901 Bureau of Engraving and Printing, Treasury
31 CFR 580.901 CHAPTER VI -- BUREAU OF ENGRAVING
31 CFR 580.901 AND PRINTING,
31 CFR 580.901 DEPARTMENT OF THE TREASURY
Part
Page
601 Distinctive paper for United States currency and other securities
605 Regulations governing conduct on Bureau of Engraving and Printing
Building and grounds and Bureau of Engraving and Printing Annex Building
and grounds
31 CFR 580.901
31 CFR 580.901 31 CFR Ch. VI (7-1-92 Edition)
31 CFR 580.901 Bureau of Engraving and Printing, Treasury
31 CFR 580.901 PART 601 -- DISTINCTIVE PAPER FOR UNITED STATES CURRENCY AND OTHER SECURITIES
31 CFR 580.901 Pt. 601
Sec.
601.1 Notice to the public.
601.2 Description of paper.
601.3 Use of paper.
601.4 Use of paper; interest-bearing securities of the United
States.
601.5 Penalty for unauthorized control or possession.
601.6 Modification of Department Circular No. 121.
Authority: 80 Stat. 379, 39 Stat. 277, as amended; 5 U.S.C. 301,
31 U.S.C. 418.
Source: Department Circular 394, Feb. 1, 1928, unless otherwise
noted. Redesignated at 39 FR 17839, May 21, 1974.
31 CFR 601.1 Notice to the public.
Notice is hereby given that the Secretary of the Treasury, by
authority of law, has adopted a new distinctive paper for use in
printing United States currency and other securities.
31 CFR 601.2 Description of paper.
The paper is cream-white bank-note paper which closely resembles in
general appearance the paper now in use, and which must conform to
specifications prescribed by the Secretary of the Treasury, in which
currency paper and bond paper may be differentiated. The distinctive
feature, identical for all paper used for the production of paper
currency and public debt issues of the United States, shall consist of
small segments of fiber, either natural or synthetic, colored red and
blue, incorporated in the body of the paper while in process of
manufacture and evenly distributed throughout.
(Amdt. 2, 8 FR 2232, Feb. 20, 1943)
31 CFR 601.3 Use of paper.
The new distinctive paper shall be used for printing currency of the
reduced size, including United States notes, gold certificates, silver
certificates, Federal reserve notes, and national bank notes. The use
of the present distinctive paper adopted on July 30, 1891, the
distinctive feature of which consists of localized red and blue silk
fiber incorporated in the body of the paper while in the process of
manufacture so placed as to form perpendicular stripes, will be
continued for any printing of currency of the present size hereafter
required.
31 CFR 601.4 Use of paper; interest-bearing securities of the United
States.
After the issue of the reduced size currency, the new distinctive
paper shall thereafter be used for the printing of interest-bearing
securities of the United States, and for any other printing where the
use of distinctive paper is indicated: Provided, however, That any then
existing stocks of blank paper containing the present distinctive
feature may be utilized.
31 CFR 601.5 Penalty for unauthorized control or possession.
The Secretary of the Treasury hereby gives notice that the new
distinctive paper, together with any other distinctive paper, heretofore
adopted for the printing of paper currency or other obligations or
securities of the United States is and will be subject to the provisions
of section 474 of Pub. L. 772, 80th Congress, which provides, in part,
as follows:
Whoever has or retains in his control or possession, after a
distinctive paper has been adopted by the Secretary of the Treasury for
the obligations and other securities of the United States, any similar
paper adapted to the making of any such obligation or other security,
except under the authority of the Secretary of the Treasury or some
other proper officer of the United States, shall be fined not more than
five thousand dollars, or imprisoned not more than fifteen years, or
both.
31 CFR 601.6 Modification of Department Circular No. 121.
The provisions of Department Circular No. 121, dated July 30, 1891,
are modified accordingly. 1 075
0751Department Circular No. 121, July 30, 1891, provided for a new
distinctive paper for all obligations except checks and drafts, the
distinctive feature of which consisted of localized red and blue silk
fiber incorporated in the body of the paper while in the process of
manufacture so placed as to form perpendicular stripes on either side of
the center portrait or vignette.
31 CFR 601.6 Pt. 605
31 CFR 601.6 PART 605 -- REGULATIONS GOVERNING CONDUCT ON BUREAU OF
ENGRAVING AND PRINTING BUILDING AND GROUNDS AND BUREAU OF ENGRAVING AND
PRINTING ANNEX BUILDING AND GROUNDS
Sec.
605.1 Authority.
605.2 Applicability.
605.3 Recording presence.
605.4 Preservation of property.
605.5 Compliance with signs and directions.
605.6 Nuisances.
605.7 Gambling.
605.8 Intoxicating beverages, narcotics, and drugs.
605.9 Soliciting, vending, debt collection, and distribution of
handbills.
605.10 Photographs.
605.11 Dogs and other animals.
605.12 Vehicular and pedestrian traffic.
605.13 Weapons and explosives.
605.14 Penalties and other law.
Authority: 5 U.S.C. 301; Delegation, Administrator, General
Services, Treasury Department Order No. 177-25 (Revision 2).
Source: 43 FR 43459, Sept. 26, 1978, unless otherwise noted.
31 CFR 605.1 Authority.
The regulations in this part governing conduct in and on the Bureau
of Engraving and Printing Building and grounds and the Bureau of
Engraving and Printing Annex Building and grounds located in Washington,
DC, at 14th and C Streets SW., are promulgated pursuant to the authority
vested in the Secretary of the Treasury, including 5 U.S.C. 301 and that
vested in him by delegation from the Administrator of General Services,
38 FR 20650 (1973), and in accordance with the authority vested in the
Director of the Bureau of Engraving and Printing by Treasury Department
order No. 177-25 (revision 2), dated August 8, 1973, 38 FR 21947
(1973).
31 CFR 605.2 Applicability.
These regulations apply to the building and grounds of the Bureau of
Engraving and Printing Building and the Bureau of Engraving and Printing
Annex Building located in Washington, DC, at 14th and C Streets SW., and
to all persons entering in or on such property. Unless otherwise stated
herein, the Bureau of Engraving and Printing Building and grounds and
the Bureau of Engraving and Printing Annex Building and grounds shall be
referred to in these regulations as the ''property.'' It is the
responsibility of the occupant agencies to require observance of the
regulations in this part by their employees.
31 CFR 605.3 Recording presence.
Except as otherwise ordered, the property shall be closed to the
public during other than normal working hours. The property shall also
be closed to the public in emergency situations and at such other times
as may be necessary for the orderly conduct of the Government's
business. Admission to the property during periods when such property
is closed to the public will be limited to authorized individuals who
will be required to sign the register and/or display identification
documents when requested by the guard. Individuals entering the
property submit themselves to possible video surveillance.
31 CFR 605.4 Preservation of property.
It shall be unlawful for any person without proper authority to
willfully destroy, damage, deface, or remove property or any part
thereof or any furnishings therein.
31 CFR 605.5 Compliance with signs and directions.
Persons in and on the property shall comply with the instructions of
uniformed Bureau of Engraving and Printing guards (U.S. Special
Policemen), other authorized officials, and official signs of a
prohibitory or directory nature.
31 CFR 605.6 Nuisances.
The use of loud, abusive, or profane language, unwarranted loitering,
unauthorized assembly, the creation of any hazard to persons or things,
improper disposal of rubbish, spitting, prurient prying, the commission
of any obscene or indecent act, or any other disorderly conduct on the
property is prohibited. The throwing of any articles of any kind in,
upon, or from the property and climbing upon any part thereof is
prohibited. The entry, without specific permission, upon any part of
the property to which the public does not customarily have access is
prohibited.
31 CFR 605.7 Gambling.
(a) Participating in games for money or other property, the operation
of gambling devices, the conduct of a lottery or pool, the selling or
purchasing of numbers tickets, or any other gambling in or on the
property is prohibited.
(b) Possession in or on the property of any numbers slip or ticket,
record, notation, receipt or other writing of a type ordinarily used in
any illegal form of gambling such as a tip sheet or dream book, unless
explained to the satisfaction of the head of the Bureau or his delegate,
shall be prima facie evidence that there is participation in an illegal
form of gambling in or on such property.
31 CFR 605.8 Intoxicating beverages, narcotics, and drugs.
Entering or being on the property, or operating a motor vehicle
thereon, by a person under the influence of intoxicating beverages,
narcotics, hallucinogenic or dangerous drugs, or marijuana, or the
consumption of such beverages or the use of such drugs or marijuana in
or on the property is prohibited. Intoxicants, nonprescription
narcotics, and other controlled substances (21 CFR part 1308) are
prohibited on the property.
31 CFR 605.9 Soliciting, vending, debt collection, and distribution of
handbills.
The unauthorized soliciting of alms and contributions, the commercial
soliciting and vending of all kinds, the display or distribution of
commercial advertising, or the collecting of private debts other than as
provided by law, in or on the property is prohibited. This rule does
not apply to Bureau of Engraving and Printing concessions or notices
posted by authorized employees on the bulletin boards. Distribution of
material such as pamphlets, handbills, and flyers is prohibited without
prior approval from the Director, Bureau of Engraving and Printing, or
his delegate.
31 CFR 605.10 Photographs.
The taking of photographs on the property is prohibited, without the
written permission of the Director, Bureau of Engraving and Printing.
Title 18 U.S.C. 474 provides, in part, that whoever photographs any
obligation or other security of the United States, or any part thereof,
shall be fined not more than $5,000 or imprisoned not more than 15
years, or both.
31 CFR 605.11 Dogs and other animals.
Dogs and other animals, except seeing-eye dogs, shall not be brought
upon the property for other than official purposes.
31 CFR 605.12 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles in or on the property shall drive in a
careful and safe manner at all times and shall comply with the signals
and directions of guards and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms,
or fire hydrants in or on the property is prohibited.
(c) Parking in or on the property is not allowed without a permit or
specific authority. Parking without authority, parking in unauthorized
locations or in locations reserved for other persons or continuously in
excess of 8 hours without permission, or contrary to the direction of a
uniformed Bureau of Engraving and Printing guard or of posted signs is
prohibited.
(d) This paragraph may be supplemented from time to time with the
approval of the Director, Bureau of Engraving and Printing, or his
delegate by the issuance and posting of such specific traffic directives
as may be required and when so issued and posted such directives shall
have the same force and effect as if made a part hereof.
31 CFR 605.13 Weapons and explosives.
No person while on the property shall carry firearms, other dangerous
or deadly weapons, or explosives, either openly or concealed, except for
official purposes.
31 CFR 605.14 Penalties and other law.
Whoever shall be found guilty of violating the regulations in this
part while on the property is subject to a fine of not more than $50 or
imprisonment of not more than 30 days, or both (see 40 U.S.C. 318c).
Nothing contained in the regulations in this part shall be construed to
abrogate any other Federal laws or regulations or those of the District
of Columbia applicable to the property referred to in 605.2 and
governed by the regulations in this part.
31 CFR 605.14 31 CFR Ch. VII (7-1-92 Edition)
31 CFR 605.14 Federal Law Enforcement Training Center, Treasury
31 CFR 605.14 CHAPTER VII -- FEDERAL LAW ENFORCEMENT
31 CFR 605.14 TRAINING CENTER,
31 CFR 605.14 DEPARTMENT OF THE TREASURY
Part
Page
700 Regulations governing conduct in or on the Federal Law
Enforcement Training Center Buildings and grounds
31 CFR 605.14
31 CFR 605.14 31 CFR Ch. VII (7-1-92 Edition)
31 CFR 605.14 Federal Law Enforcement Training Center, Treasury
31 CFR 605.14 PART 700 -- REGULATIONS GOVERNING CONDUCT IN OR ON THE FEDERAL LAW ENFORCEMENT TRAINING CENTER BUILDINGS AND GROUNDS
31 CFR 605.14 Pt. 700
Sec.
700.1 Authority.
700.2 Applicability.
700.3 Recording presence.
700.4 Preservation of property.
700.5 Compliance with signs and directions.
700.6 Nuisances.
700.7 Alcoholic beverages, narcotics, and drugs.
700.8 Soliciting, vending, debt collection and distribution of
handbills.
700.9 Photographs for news, advertising, or commercial purposes.
700.10 Vehicular and pedestrian traffic.
700.11 Weapons and explosives.
700.12 Penalties and other laws.
Authority: 5 U.S.C. 301; FPMR Tem. Reg D-54, 41 FR 5869; Treasury
Dept. Order No. 217-1 FR 9398.
Source: 41 FR 49808, Nov. 11, 1976, unless otherwise noted.
31 CFR 700.1 Authority.
The regulations in this part are promulgated pursuant to the
authority vested in the Secretary of the Treasury, including 5 U.S.C.
301, and that vested in him by delegation from the Administrator of
General Services, 41 FR 5869, February 10, 1976, and in accordance with
the authority vested in the Director, Federal Law Enforcement Training
Center, by Treasury Department Order No. 217-1, 41 FR 9398, March 4,
1976.
31 CFR 700.2 Applicability.
The regulations in this part apply to the buildings and surrounding
property of the Federal Law Enforcement Training Center, Glynco,
Georgia, and to all persons entering on to such property.
31 CFR 700.3 Recording presence.
Except as otherwise ordered, the property shall be closed to the
general public. Admission to the property will be limited to authorized
individuals who will be required to obtain a visitor's pass and/or
display identification documents when requested by the policeman at the
entrance of the facility.
31 CFR 700.4 Preservation of property.
It shall be unlawful for any person without proper authority to
willfully destroy, damage, deface, or remove property or any part
thereof or any furnishing therein.
31 CFR 700.5 Compliance with signs and directions.
Persons in and on the property shall comply with the instructions of
uniformed Federal Law Enforcement Training Center policemen, other
authorized officials, and official signs of a prohibitory or directory
nature.
31 CFR 700.6 Nuisances.
The use of loud, abusive, or profane language, unwarranted loitering,
unauthorized assembly, the creation of any hazard to persons or things,
improper disposal of rubbish, or the commission of any disorderly
conduct on the property is prohibited. The throwing of any articles of
any kind in, upon, or from the property, except as a part of athletic
activity, and climbing upon any part thereof, is prohibited. Prohibited
actions in the preceding sentences are limited to those actions which
impede, obstruct, or otherwise interfere with the Government's business
which includes, among other things, the maintenance of the facility,
protection of persons and property, and the smooth administration of
academic activities and supporting services. The entry, without
specific permission, upon any part of the property to which authorized
visitors do not customarily have access, is prohibited.
31 CFR 700.7 Alcoholic beverages, narcotics, and drugs.
Entering or being on the property, or operating a motor vehicle
thereon, by a person under the influence of alcoholic beverages,
narcotics, hallucinogenic or dangerous drugs, or marijuana is
prohibited. The use of any narcotic or dangerous drug or marijuana
contrary to the provisions of Federal, State, or local law in or on the
property is prohibited.
31 CFR 700.8 Soliciting, vending, debt collection and distribution of
handbills.
The unauthorized soliciting of alms and contributions, the commercial
soliciting and vending of all kinds, the display or distribution of
commercial advertising, or the collecting of private debts, in or on the
property, is prohibited. This prohibition does not apply to Federal Law
Enforcement Training Center concessions or notices posted by authorized
employees on the bulletin boards. Distribution of material such as
pamphlets, handbills, and flyers is prohibited without prior approval
from the Director or the delegate of the Director.
31 CFR 700.9 Photographs for news, advertising, or commercial purposes.
Photographs for news, advertising, or commercial purposes may be
taken on the property only with the prior permission of the Director, or
the delegate of the Director.
31 CFR 700.10 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles in or on the property shall drive in a
careful and safe manner at all times and shall comply with the signals
and directions of policemen and all posted traffic signs. In the
absence of signals, directions of policemen, and posted traffic signs,
drivers of vehicles shall comply with the motor vehicle regulations of
the State of Georgia.
(b) The blocking of entrances, driveways, walks, loading platforms,
or fire hydrants in or on the property is prohibited.
(c) Parking in unauthorized locations, or in locations reserved for
other persons or contrary to the directions of a policeman or posted
signs, is prohibited.
(d) This paragraph may be supplemented from time to time with
approval of the Director or his delegate by the issuance and posting of
such specific traffic directives as may be required. When so issued and
posted, such directives shall have the same force and effect as if made
a part hereof.
31 CFR 700.11 Weapons and explosives.
No person, while on the property, shall carry firearms, other
dangerous or deadly weapons, or explosives, either openly or concealed,
except for authorized training or official purposes.
31 CFR 700.12 Penalties and other laws.
Whover shall be found guilty of violating any of the regulations of
this part while on the property is subject to a fine of not more than
$50 or imprisonment of not more than 30 days, or both (see 40 U.S.C.
318c). Nothing contained in these regulations shall be construed to
abrogate any other Federal laws, or laws of the State of Georgia, or
laws of Glynn County, which are applicable to the property referred to
in 700.2.
31 CFR 700.12 31 CFR Ch. VIII (7-1-92 Edition)
31 CFR 700.12 Office of International Investment, Treasury
31 CFR 700.12 CHAPTER VIII -- OFFICE OF
31 CFR 700.12 INTERNATIONAL INVESTMENT,
31 CFR 700.12 DEPARTMENT OF THE TREASURY
Part
Page
800 Regulations pertaining to mergers, acquisitions, and takeovers by
foreign persons
31 CFR 700.12
31 CFR 700.12 31 CFR Ch. VIII (7-1-92 Edition)
31 CFR 700.12 Office of International Investment, Treasury
31 CFR 700.12 PART 800 -- REGULATIONS PERTAINING TO MERGERS, ACQUISITIONS, AND TAKEOVERS BY FOREIGN PERSONS
31 CFR 700.12 Pt. 800
31 CFR 700.12 Subpart A -- General
Sec.
800.101 Scope.
800.102 Effect on other laws.
800.103 Prior acquisitions.
800.104 Transactions or devices for avoidance.
31 CFR 700.12 Subpart B -- Definitions
800.201 Acquisition.
800.202 Affiliate.
800.203 Committee; Chairman of the Committee.
800.204 Control.
800.205 Conversion.
800.206 Convertible voting security.
800.207 Effective date.
800.208 Entity.
800.209 Foreign interest.
800.210 Foreign national.
800.211 Foreign person.
800.212 Hold.
800.213 Parent.
800.214 A party or parties to an acquisition.
800.215 Person.
800.216 Section 721.
800.217 Solely for the purpose of investment.
800.218 United States.
800.219 United States national.
800.220 United States person.
800.221 Voting securities.
31 CFR 700.12 Subpart C -- Coverage
800.301 Transactions that are acquisitions under Section 721.
800.302 Transactions that are not acquisitions under Section 721.
800.303 Lending transactions.
31 CFR 700.12 Subpart D -- Notice
800.401 Procedures for notice.
800.402 Contents of voluntary notice.
800.403 Treatment of certain voluntary notices.
800.404 Beginning of thirty-day review period.
31 CFR 700.12 Subpart E -- Committee Procedures: Review and
Investigation
800.501 General.
800.502 Determination not to investigate.
800.503 Commencement of investigation.
800.504 Completion or termination of investigation and report to the
President.
800.505 Withdrawal of notice.
31 CFR 700.12 Subpart F -- Presidential Action
800.601 Statutory time frame, standards for Presidential action, and
permissible actions under Section 721.
31 CFR 700.12 Subpart G -- Provision and Handling of Information
800.701 Obligation of parties to provide information.
800.702 Confidentiality.
Appendix to Part 800 -- Preamble to Regulations on Mergers,
Acquisitions, and Takeovers by Foreign Persons (Published November 21,
1991)
Authority: Section 721 of Pub. L. 100-418, 102 Stat. 1107, made
permanent law by section 8 of Pub. L. 102-99, 105 Stat. 487 (50 U.S.C.
App. 2170); Section 705 of the Defense Production Act of 1950 (50
U.S.C. App. 2155); E.O. 12661, 54 FR 779, 3 CFR 1988 Comp. p. 618.
Source: 56 FR 58780, Nov. 21, 1991, unless otherwise noted.
31 CFR 700.12 Subpart A -- General
31 CFR 800.101 Scope.
The regulations in this part implement section 721 of Title VII of
the Defense Production Act of 1950, hereinafter referred to as ''Section
721'' (see 800.216 of this part). The definitions in this part are
applicable to Section 721 and these regulations. The principal purpose
of Section 721 is to authorize the President to suspend or prohibit any
merger, acquisition, or takeover, by or with a foreign person, of a
person engaged in interstate commerce in the United States when, in the
President's view, the foreign interest exercising control over that
person might take action that threatens to impair the national security.
In addition, Section 721 authorizes the President to seek divestment or
other appropriate relief in the case of concluded transactions.
31 CFR 800.102 Effect on other laws.
Nothing in this part shall be construed to alter or affect any
existing power, process, regulation, investigation, enforcement measure,
or review provided by any other provision of law.
31 CFR 800.103 Prior acquisitions.
Section 721 and the regulations in this part apply to acquisitions
concluded on or after the effective date (as defined in 800.207),
including acquisitions concluded prior to issuance of these regulations.
Section 721 and the regulations in this part do not apply to
acquisitions concluded prior to the effective date.
31 CFR 800.104 Transactions or devices for avoidance.
Any transaction(s) or other device(s) entered into or employed for
the purpose of avoiding Section 721 shall be disregarded, and Section
721 and these rules shall be applied to the substance of the
transaction(s).
Example. Corporation A is organized under the laws of a foreign state
and is wholly owned and controlled by a foreign national. With a view
towards avoiding possible application of section 721, Corporation A
transfers money to a U.S. citizen, who, pursuant to informal
arrangements with Corporation A and on its behalf, purchases all the
shares in Corporation X, a corporation which is organized under the laws
of a state of the United States, and which engages in business
activities in the United States. That sham transaction is subject to
Section 721.
31 CFR 800.104 Subpart B -- Definitions
31 CFR 800.201 Acquisitions.
The term acquisition is used in these regulations to refer
collectively to an acquisition, merger, or takeover. It includes,
without limitation:
(a) The acquisition of a person by:
(1) The purchase of its voting securities,
(2) The conversion of its convertible voting securities,
(3) The acquisition of its convertible voting securities if that
involves the acquisition of control, or
(4) The acquisition and the voting of proxies, if that involves the
acquisition of control.
(b) The acquisition of a business, including any acquisition of
production or research and development facilities operated prior to the
acquisition as part of a business, if there will likely be a substantial
use of:
(1) The technology of that business, excluding technical information
generally accompanying the sale of equipment, or
(2) Personnel previously employed by that business.
(c) A consolidation.
Example (relating to paragraph (b) of this section). Corporation A,
organized under the laws of a foreign state and wholly owned and
controlled by a foreign national, acquires, from separate United States
nationals, (a) products held in inventory, (b) land, and (c) machinery
for export. Corporation A has not acquired a business and has not made
an acquisition within the meaning of these regulations.
31 CFR 800.202 Affiliate.
An affiliate of an entity, as that term is used in 800.205 and
800.402, is any other entity in the chain of ownership between a parent
and that entity.
Example. Corporation P holds 50 percent of the voting securities of
Corporations R and S. Corporation R holds 40 percent of the voting
securities of Corporation X, and Corporation S holds 50 percent of the
voting securities of Corporation Y. Under this definition, Corporation
S is an affiliate of Corporation Y. (An entity can be both an affiliate
and a parent.) Corporation R is not an affiliate of Corporation S or Y
because it is not in the chain of ownership between Corporation P and
Corporation Y. Corporation X is also not an affiliate of Corporation Y.
31 CFR 800.203 Committee; Chairman of the Committee.
The term Committee means the Committee on Foreign Investment in the
United States, as established in Executive Order No. 11858, 40 FR
20263, 3 CFR, 1971-1975 Comp., p. 990, as amended. The Chairman of the
Committee is the Secretary of the Treasury.
31 CFR 800.204 Control.
(a) The term control means the power, direct or indirect, whether or
not exercised, and whether or not exercised or exercisable through the
ownership of a majority or a dominant minority of the total outstanding
voting securities of an issuer, or by proxy voting, contractual
arrangements or other means, to determine, direct or decide matters
affecting an entity; in particular, but without limitation, to
determine, direct, take, reach or cause decisions regarding:
(1) The sale, lease, mortgage, pledge or other transfer of any or all
of the principal assets of the entity, whether or not in the ordinary
course of business;
(2) The dissolution of the entity;
(3) The closing and/or relocation of the production or research and
development facilities of the entity;
(4) The termination or non-fulfillment of contracts of the entity;
or
(5) The amendment of the Articles of Incorporation or constituent
agreement of the entity with respect to the matters described at
paragraph (a) (1) through (4) of this section.
(b) In examining questions of control in situations where more than
one foreign person has an interest in a U.S. person, consideration will
be given to factors such as whether the foreign persons are related
and/or whether they have commitments to act in concert.
31 CFR 800.205 Conversion.
The term conversion means the exercise of a right inherent in the
ownership or holding of particular securities to exchange such
securities for securities which currently entitle the owner or holder to
vote for directors of the issuer or of any affiliate of the issuer.
31 CFR 800.206 Convertible voting security.
The term convertible voting security means a security which currently
does not entitle its owner or holder to vote for directors of any entity
and which is convertible into a voting security. See 800.201 and
800.302(c).
31 CFR 800.207 Effective date.
The term effective date means August 23, 1988, the date Section 721
became effective.
31 CFR 800.208 Entity.
The term entity means any branch, partnership, associated group,
association, estate, trust, corporation, division of a corporation,
business enterprise, or other organization (whether or not organized
under the laws of any State), and any government (including a foreign
government, the United States Government, a State or local government,
and any agency, corporation, financial institution, or other entity or
instrumentality thereof, including a government sponsored agency).
31 CFR 800.209 Foreign interest.
The term foreign interest means any foreign person, including a
foreign government.
31 CFR 800.210 Foreign national.
The term foreign national means any natural person other than a
United States national.
31 CFR 800.211 Foreign person.
The term foreign person means
(a) Any foreign national or
(b) Any entity over which control is exercised or exercisable by a
foreign interest.
Example 1. Corporation A is organized under the laws of a foreign
state and is engaged in business outside the United States. All its
shares are held by Corporation X, which controls Corporation A.
Corporation X is organized in the United States, and is wholly owned and
controlled by U.S. nationals. Corporation A, although organized and
operating outside the U.S., is not a ''foreign person,'' and its
acquisition of a U.S. person would not be subject to Section 721.
Example 2. Same facts as in the first two sentences of Example 1,
except that Country A through governmental intervenors exercises full
decision-making power over Corporation A, including the decisions
described in 800.204 (a) through (e). There is a foreign interest
which is exercising control over Corporation A, which is a ''foreign
person.''
Example 3. Corporation A is organized under the laws of a foreign
state and is owned and controlled by a foreign national. Through a
branch, Corporation A engages in business in the United States.
Corporation A and/or its branch is a ''foreign person'' should
Corporation A make an acquisition. Its branch business in the United
States is also a ''U.S. person'' which may be the subject of an
acquisition.
31 CFR 800.212 Hold.
The terms hold(s) and holding mean legal or beneficial ownership,
whether direct or indirect, through fiduciaries, agents or other means.
31 CFR 800.213 Parent.
The term parent, as used in 800.302 and 800.402, means a person who
or which, directly or indirectly,
(a) Holds or will hold 50 percent or more of the outstanding voting
securities of an entity; or
(b) In case of an entity that has no outstanding voting securities,
holds or will hold the right to 50 percent or more of the profits of the
entity, or has or will have the right in the event of the dissolution to
50 percent or more of the assets of the entity.
Example. Corporation P holds 50 percent of the voting securities of
Corporations R and S. Corporation R holds 40 percent of the voting
securities of Corporation X, and Corporation S holds 50 percent of the
voting securities of Corporation Y. Corporation P is a parent of
Corporations R, S and Y, but not of Corporation X. Corporation S is a
parent of Corporation Y because it holds 50 percent of the voting
securities of Corporation Y.
31 CFR 800.214 A party or parties to an acquisition.
The terms party to an acquisition and parties to an acquisition mean:
(a) In the case of an acquisition of a person by the purchase of its
voting securities, the person acquiring the voting securities, and the
person issuing those voting securities;
(b) In the case of a merger, the surviving person, and the person or
persons that lose its or their separate pre-merger identity;
(c) In the case of an acquisition of an entity or a business of an
entity, the person acquiring or seeking to acquire that entity or
business, and the person selling that entity or business;
(d) In the case of a consolidation, the entities being consolidated,
and the new consolidated entity;
(e) In the case of a proxy solicitation, the person soliciting
proxies, and the person who issued the voting securities.
31 CFR 800.215 Person.
The term person means any natural person or entity.
31 CFR 800.216 Section 721.
The term Section 721 means section 721 of title VII of the Defense
Production Act of 1950, 50 U.S.C. App. 2171, as added by section 5021 of
the Omnibus Trade and Competitiveness Act of 1988, Public Law 100-418,
102 Stat. 1107.
31 CFR 800.217 Solely for the purpose of investment.
(a) Voting securities are held or acquired ''solely for the purpose
of investment'' if the person holding or acquiring such voting
securities has no intention of determining or directing the basic
business decisions of the issuer, including those at 800.204(a) (1)
through (5).
(b) Voting securities are not held solely for the purpose of
investment if the person holding or acquiring such voting securities:
(1) Possesses or develops any purpose other than investment, or
(2) Takes any action inconsistent with acquiring or holding such
securities solely for the purpose of investment.
31 CFR 800.218 United States.
The term United States means the United States of America, the States
of the United States, the District of Columbia, and any commonwealth,
territory, dependency, or possession of the United States, and includes
the Outer Continental Shelf, as defined in section 2(a) of the Outer
Continental Shelf Lands Act (43 U.S.C. 1131 (a)). For purposes of these
regulations and their examples, an entity organized under the laws of
the United States of America, one of the States, the District of
Columbia, or a commonwealth, territory, dependency or possession of the
United States, is an entity organized ''in the United States.''
31 CFR 800.219 United States national.
The term United States national or U.S. national means a citizen of
the United States or a natural person who, although not a citizen of the
United States, owes permanent allegiance to the United States.
31 CFR 800.220 United States person.
The term U.S. person or United States person means any natural person
or entity but, in the case of the latter, only to the extent of its
business activities in interstate commerce in the United States,
irrespective of the nationality of the natural persons or entities which
control it.
Example 1. Corporation A is organized under the laws of a foreign
state and is wholly owned and controlled by a foreign national. It
engages in business activities in a state of the U.S. through a branch
office or subsidiary. That branch office or subsidiary of Corporation A
is an ''entity'' and a ''U.S. person.'' The branch office or subsidiary
is also a foreign person under 800.211.
Example 2. Same facts as in the first sentence of Example 1.
Corporation A, however, does not have a branch office, subsidiary or
fixed place of business in the United States. It exports and licenses
technology to an unrelated company in the United States. Corporation A
is not a ''U.S. person.''
Example 3. Corporation A is organized under the laws of a foreign
state and is wholly owned and controlled by Corporation X. Corporation
X is organized in the United States and is wholly owned and controlled
by U.S. nationals. Corporation A does not have a branch office,
subsidiary, or fixed place of business in the United States. It exports
goods to Corporation X and to unrelated companies in the United States.
The sale of Corporation A by Corporation X to a foreign person would not
constitute an acquisition of a U.S. person for purposes of section 721.
31 CFR 800.221 Voting securities.
The term voting securities means any securities which at present or
upon conversion entitle the owner or holder thereof to vote for the
election of directors of the issuer, or, with respect to unincorporated
entities, individuals exercising similar functions.
31 CFR 800.221 Subpart C -- Coverage
31 CFR 800.301 Transactions that are acquisitions under Section 721.
(a) Section 721 applies to acquisitions:
(1) Proposed or pending on or after the effective date
(2) By or with foreign persons
(3) Which could result in foreign control of persons engaged in
interstate commerce in the United States.
(b) Transactions that are acquisitions under section 721 include,
without limitation:
(1) Proposed or completed acquisitions by or with foreign persons
which could or did result in foreign control of a U.S. person,
irrespective of the actual arrangements for control planned or in place
for that particular acquisition.
Example 1. Corporation A, a foreign person, proposes to purchase all
the shares in Corporation X, which is organized in the United States and
engages in interstate commerce in the United States.
Under the applicable law, Corporation A will have the right to elect
directors and appoint other primary officers of Corporation X, and those
directors will have the right to reach decisions about the closing and
relocation of particular production facilities, and the termination of
contracts. They also will have the right to propose (for approval by
Corporation A as a shareholder) the dissolution of Corporation X and the
sale of its principal assets.
For purposes of Section 721, the proposed acquisition of Corporation
X by Corporation A would result in control of a U.S. person
(Corporation X) by a foreign person (Corporation A).
Example 2. Same facts as in Example 1, except that Corporation A
plans to retain the existing directors of Corporation X, all of whom are
U.S. nationals.
Although, under these plans, Corporation A may not in fact exercise
control over Corporation X (because the directors as U.S. nationals may
exercise that control), the acquisition of Corporation X by Corporation
A still would result in foreign control over a U.S. person for purposes
of Section 721.
(2) A proposed acquisition by or with a foreign person, which could
result in foreign control of a U.S. person, including, without
limitation, an offer to purchase all or a substantial portion of the
securities of a U.S. person.
Example. Corporation A, a foreign person makes an offer to purchase
all the shares in Corporation X, a U.S. person. That acquisition is
''proposed'' and subject to Section 721.
(3) Proposed or completed acquisitions, even by entities organized in
the United States, if those entities are ''foreign persons,'' and if
those acquisitions could or did result in a different foreign interest
controlling the U.S. person to be acquired.
Example 1. Corporation X is organized and operates in the United
States. Its shares are held by a foreign person. While Corporation X
is a ''U.S. person,'' it is also a ''foreign person'' within the meaning
of Section 721, because control over it is or could be exercised by a
foreign person. Its acquisition of a U.S. person is subject to Section
721 because that acquisition could result in control by Corporation X (a
''foreign person'') of a U.S. person.
Example 2. Same facts as Example 1, except that Corporation Y, a
foreign person, seeks to acquire Corporation X from its existing
shareholder. That proposed acquisition is subject to Section 721
because it could result in control of Corporation X (in this context a
''U.S. person'') by a different foreign person (Corporation Y).
(4) Proposed or completed acquisitions by or with foreign persons
which involve acquisitions of businesses and could or did result in
foreign control of businesses located in the United States.
Example 1. Corporation A, a foreign person, proposes to buy a branch
office business in the United States of Corporation X, which is a
foreign person. For purposes of these regulations, the branch office
business of Corporation X is a United States person to the extent of its
business activities in the U.S., and the proposed acquisition of the
business in question is subject to Section 721.
Example 2. Corporation A, a foreign person, buys a branch office
business located entirely outside the United States of Corporation Y,
which is incorporated in the United States. The branch office business
of Corporation Y is not deemed to be a United States person, and the
acquisition is not subject to Section 721.
Example 3. Corporation A, a foreign person, makes a start-up or
''greenfield'' investment in the United States. That investment
involves such activities as separately arranging for the financing of
and the construction of a plant to make a new product, buying supplies
and inputs, hiring personnel, and purchasing the necessary technology.
The investment may involve the acquisition of shares in a newly
incorporated subsidiary. Corporation A will not have acquired the
''business'' of a U.S. person, and its greenfield investment is not
subject to Section 721.
(5) Joint ventures in which a United States person and a foreign
person enter into contractual or other similar arrangements, including
agreements on the establishment of a new entity, but only if a United
States person contributes an existing identifiable business in the
United States and a foreign interest would gain control over that
existing business by means of the joint venture.
Example 1. Corporation A, a foreign person, and Corporation X, a
United States person, form a separate corporation, JV Corp., to which
Corporation X contributes an identifiable business in the United States.
There is no foreign interest which does or could exercise control over
Corporation X. Under the Articles of Incorporation of JV Corp. may
elect a majority of the Board of Directors of JV Corp. The formation of
JV Corp. could result in foreign control of a U.S. person and is an
acquisition subject to Section 721.
Example. 2. Same facts as in Example 1, except that Corporations A
and X each own 50 percent of the shares of JV Corp. and, under the
Articles of Incorporation of JV Corp. both A and X have veto power over
all decisions by JV Corp. identified under 800.204(a) (1) through (5).
The formation of JV Corp. is not an acquisition subject to Section
721.
Example. 3. Corporation A, a foreign person, and Corporation X, a
United States person, form a separate corporation, JV Corp., to which
Corporation A contributes funding and managerial and technical
personnel, while Corporation X contributes certain patents and equipment
that do not under these circumstances constitute an identifiable
business. The formation of JV Corp. is not an acquisition subject to
Section 721.
31 CFR 800.302 Transactions that are not acquisitions under Section
721.
The following transactions are not considered acquisitions for
purposes of Section 721:
(a) An acquisition of voting securities pursuant to a stock split or
pro rata stock dividend which does not involve a change in control.
(b) An acquisition in which the parent of the entity making the
acquisition is the same as the parent of the entity being acquired.
Example. Corporation A, a foreign person, merges its two wholly owned
U.S. subsidiaries S1 and S2, and in addition creates a new U.S.
subsidiary, S3. S3 then buys a business from S4, another wholly-owned
U.S. subsidiary of Corporation A. These acquisitions are not subject to
Section 721.
(c) An acquisition of convertible voting securities that does not
involve control.
Example. Corporation A, a foreign person, buys debentures, options
and warrants of Corporation X, a U.S. person. By their terms, the
debentures are convertible into common stock, and the options and
warrants can be exercised for common stock. The acquisition of those
debentures, options and warrants is not subject to Section 721 so long
as it does not involve control. The conversion of those debentures into
common stock, or the exchange of those options and warrants for common
stock, may be an acquisition for purposes of Section 721. See 800.201.
(d) A purchase of voting securities or comparable interests in a
United States person solely for the purpose of investment, as defined in
800.217, if, as a result of the acquisition,
(1) The foreign person would hold ten percent or less of the
outstanding voting securities of the U.S. person, regardless of the
dollar value of the voting securities so acquired or held, or
(2) The purchase is made directly by a bank, trust company, insurance
company, investment, company, pension fund, employee benefit plan,
mutual fund, finance company or brokerage company in the ordinary course
of business for its own account, provided that a significant portion of
that business does not involve the acquisition of entities.
Example 1. In an open market purchase solely for the purpose of
investment, Corporation A, a foreign person, acquires 7 percent of the
voting securities of Corporation X, which is incorporated under the laws
of the United States. The acquisition of those securities is not
subject to Section 721.
Example 2. Same facts as Example 1 except Corporation A is an
investment company which makes only portfolio investments. It purchases
14 percent of the voting securities of Corporation X for its own
account, solely for the purpose of investment. The acquisition of those
securities is not subject to Section 721.
Example 3. Same facts as Example 2 except that a significant portion
of the business of Corporation A is acquiring control over corporations.
Its purchase of 14 percent of the shares of Corporation X is subject to
Section 721.
(e) An acquisition of assets in the United States that does not
constitute a business in the United States. See 800.201 and
800.301(b)(4).
Example 1. Corporation A, a foreign person, acquires, from separate
United States nationals, (a) products held in inventory, (b) land, and
(c) machinery for export. Corporation A has not acquired a ''business''
within the meaning of Section 721.
Example 2. Corporation X produces armored personnel carriers in the
United States. Corporation A, a foreign person, seeks to acquire the
annual production of those carriers from Corporation X under a long-term
contract. Neither the proposed acquisition of those carriers, nor the
actual acquisition, is subject to Section 721.
Example 3. Same facts as Example 2, except that Corporation X, a
U.S. person, has developed important technology in connection with the
production of armored personnel carriers. Corporation A seeks to
negotiate an agreement under which it would be licensed to manufacture
using that technology. Neither the proposed acquisition of technology
pursuant to that license agreement, nor the actual acquisition, is
subject to Section 721.
Example 4. Same facts as Example 2, except that Corporation A enters
into a contractual arrangement to acquire the entire armored personnel
carrier business of Corporation X, including production facilities,
customer lists, technology and staff. This acquisition is subject to
Section 721. See 800.201.
(f) An acquisition of securities by a person acting as a securities
underwriter, in the ordinary course of business, and in the process of
underwriting.
(g) An acquisition pursuant to a condition in a contract of insurance
relating to fidelity, surety, or casualty obligations if the contract
was made by an insurer in the ordinary course of business.
(h) An acquisition of a security interest, but not control, in the
voting securities or assets of a U.S. person at the time a loan or other
financing is extended (see 800.303).
(i) An acquisition of voting securities or assets that does not
involve an acquisition of control of a person engaged in interstate
commerce in the United States.
Example 1. Corporation A, which is organized under the laws of a
foreign state and is controlled by foreign persons, advises the
Committee that it intends to acquire seven percent of the voting
securities of Corporation X, which is organized under the laws of the
United States and engaged in interstate commerce within the United
States. In this particular case, Corporation A's purchase of this
interest in Corporation X would not be sufficient to permit Corporation
A to control Corporation X for purposes of 800.204. This transaction is
not an acquisition for purposes of Section 721.
Example 2. Corporation A, which is organized under the laws of a
foreign state and controlled by foreign persons, acquires from
Corporation B 100 percent of the voting securities of Corporation X, a
wholly-owned subsidiary of Corporation B that is organized under the
laws of the United States. Corporation X currently has no employees,
plants, equipment or subsidiaries in the United States. Corporation B
maintains records in the United States on behalf of Corporation X and
uses U.S. mail and telecommunications facilities on its behalf. For
purposes of Section 721, Corporation X is not engaged in interstate
commerce in the United States, and the acquisition by Corporation A of
securities of Corporation X is not an acquisition for purposes of
Section 721.
31 CFR 800.303 Lending transactions.
(a) The extension of a loan or similar financing by a foreign person
to a U.S. person, accompanied by the creation in the foreign person of a
secured interest in securities or other assets of the U.S. person, does
not, by itself, subject the transaction to Section 721. However, if
control is acquired by the foreign person at the time the loan or other
financing is extended, then the transaction may be subject to Section
721.
(1) The Committee will not, at the time of extension of the loan or
other financing, accept notices from parties to a loan or other
financing transaction in which control is not acquired by the foreign
person at that time.
(2) The Committee will accept notices concerning transactions that
involve loans or financing by foreign persons where, because of imminent
or actual default or other condition, there is a significant possibility
that the foreign person may obtain control of the U.S. person.
(3) For purposes of this section, in determining whether an
acquisition of a U.S. person by a foreign person results in foreign
control under Section 721, the Committee will take into account
arrangements which the foreign person might establish to transfer
day-to-day control over the U.S. person to U.S. nationals.
(b) Control will not be deemed to be acquired for purposes of Section
721 in cases involving an acquisition of voting securities or assets of
a U.S. person by a foreign person upon default, or other condition,
involving a loan or other financing, provided that the loan was made by
a syndicate of banks in a loan participation where the foreign lender
(or lenders) in the syndicate;
(1) Needs the majority consent of the U.S. participants in the
syndicate to take action, and cannot on its own initiate any action
vis-a-vis the debtor; or
(2) Does not have a lead role in the syndicate, and is subject to a
provision in the loan or financing documents limiting its influence,
ownership or control of the debtor such that control for purposes of
800.204 could not be acquired.
31 CFR 800.303 Subpart D -- Notice
31 CFR 800.401 Procedures for notice.
(a) A party or the parties to an acquisition subject to Section 721
may submit a voluntary notice to the Committee of the proposed or
completed acquisition by sending ten copies of the information set out
in 800.402 to the Staff Chairman of the Committee on Foreign Investment
in the United States (hereinafter ''Staff Chairman''), Office of
International Investment, room 5100, Department of the Treasury, 15th
Street and Pennsylvania Avenue, NW., Washington, DC 20220.
(b) Any member of the Committee may submit an agency notice of a
proposed or completed acquisition to the Committee through its Staff
Chairman if that member has reason to believe, based on facts then
available, that the acquisition is subject to Section 721 and may have
adverse impacts on the national security. In the event of agency
notice, the Committee will promptly furnish the parties to the
acquisition with written advice of such notice.
(c) No agency notice, or review or investigation by the Committee,
shall be made with respect to a transaction more than three years after
the date of conclusion of the transaction, unless the Chairman of the
Committee, in consultation with other members of the Committee, requests
an investigation.
(d) No communications other than those described in paragraphs (a)
and (b), and (c) of this section shall constitute notice for purposes of
section 721.
31 CFR 800.402 Contents of voluntary notice.
(a) If the parties to an acquisition jointly submit a voluntary
notice, they shall provide in detail the information set out in this
section, which must be accurate and complete with respect to all
parties. All parties shall sign a joint notice.
(b) If fewer than all the parties to an acquisition submit a
voluntary notice,
(1) Each notifying party shall provide the information set out in
this section with respect to itself and, to the extent known or
reasonably available to it, with respect to each non-notifying party.
(2) The Staff Chairman may delay acceptance of the notice, and the
beginning of the thirty-day review period, in order to obtain any
information set forth under this section that has not been submitted by
the notifying party. Where necessary to obtain such information, the
Staff Chairman may inform the non-notifying party or parties that notice
has been initiated with respect to a proposed transaction involving the
party, and request that certain information set forth in this section,
as specified by the Staff Chairman, be forwarded to the Committee within
seven days after such request by the Staff Chairman.
(c) A voluntary notice submitted pursuant to 800.401(a) shall
describe:
(1) The transaction in question, including
(i) A summary setting forth the essentials of the transaction;
(ii) The nature of the transaction, e.g., whether the acquisition is
by merger, consolidation, the purchase of voting securities, or
otherwise;
(iii) The name, United States address (if any), and address of the
principal place of business of the foreign person making the
acquisition;
(iv) The name and address of the U.S. person being acquired;
(v) The name, address and nationality of the parent, if any, of the
foreign person making the acquisition, and of each affiliate of that
person;
(vi) The name, address and nationality of the persons or interests
that will control the U.S. person being acquired; and
(vii) The expected date for concluding the transaction, or the date
it was concluded.
(2) The assets of the U.S. person being acquired (to be described
only for an acquisition of an entity structured as an acquisition of
assets or a business).
(3) With respect to the U.S. person being acquired, and any entity of
which it is a parent that is also being acquired:
(i) The business activities of each of them, as, for example, set
forth in annual reports, and the product lines of each;
(ii) The street address (or mailing address, if different) within the
United States of the facilities of each of them, which are manufacturing
classified or unclassified products or producing services described in
subparagraph (v) below, and their respective Commercial and Government
Entity Code (CAGE Code), if any, assigned by the Department of Defense;
(iii) Except as may be identified in paragraph (c)(3)(iv) of this
section, each contract (identified by agency and number), which is
currently in effect, or was in effect within the past three years, with
an agency of the Government of the United States with national defense
responsibilities, including any component of the Department of Defense,
and the name, office, and telephone number of the contracting official;
(iv) Each contract (identified by agency and number), which is
currently in effect or was in effect within the past five years, with
any agency of the Government of the United States involving any
information, technology or data, which is classified under Executive
Order 12356 of April 2, 1982, and the name, office, and telephone number
of the contracting official;
(v) Any products or services (including research and development) of
each of them with respect to which
(A) It is a supplier to any of the military services of the United
States or the Department of Defense, and, to the knowledge of the
parties submitting notice, to what extent the U.S. person is a
sole-source supplier of the Department of Defense's needs for a
particular product or service; or
(B) It has technology which has military applications.
(4) Whether the U.S. person being acquired produces:
(i) Products or technical data subject to validated licenses or under
General License GTDR pursuant to the U.S. Export Administration
Regulations (15 CFR parts 768-799); if applicable, the relevant
Commodity Control List number shall be provided and the technical data
shall be described; and
(ii) Defense articles and defense services under the International
Traffic in Arms Regulations (22 CFR subchapter M).
(5) With respect to the foreign person:
(i) The business or businesses of the foreign person making the
acquisition, and of its parent and any affiliates, as described, for
example, in annual reports. Provide CAGE codes, if any, for such
facilities; and
(ii) The plans of the foreign person for the U.S. person with respect
to:
(A) Reducing, eliminating or selling research and development
facilities,
(B) Changing product quality,
(C) Shutting down or moving offshore facilities which are within the
United States,
(D) Consolidating or selling product lines or technology, or
(E) Modifying or terminating contracts referred to in paragraphs
(c)(3) (iii) and (iv) of this section for defense-related goods or
services or for goods and services otherwise affecting national
security.
(d) The voluntary notice shall list any filings with or reports to
agencies of the United States Government which have been or will be made
in respect of the acquisition prior to its closing indicating the
agencies concerned, the nature of the filing or report, the date by
which it was filed or the estimated date by which it will be filed, and
a relevant telephone number and/or contact point within the agency, if
known.
Example. Corporation A, a foreign person, intends to acquire
Corporation X, which is wholly owned and controlled by a U.S. national,
and which has a Facility Security Clearance under the Department of
Defense Industrial Security Program. See Department of Defense,
''Industrial Security Regulation,'' DOD 5220.22-R, and ''Industrial
Security Manual for Safeguarding Classified Information,'' DOD
5220.22-M. Corporation X accordingly files a revised Form DD 441s, and
enters into discussions with the Defense Investigative Service about
effectively insulating its facilities from the foreign interest.
Paragraph (d) requires that certain specific information about these
steps be reported to the Committee in a voluntary notice.
(e) In the case of a joint venture subject to Section 721,
information for the voluntary notice shall be prepared on the assumption
that the foreign person which is party to the joint venture has made an
acquisition of the business or businesses that the U.S. person which is
a party to the joint venture is contributing or transferring to the
joint venture. In addition, the voluntary notice shall describe the
name and address of the joint venture or other corporation.
(f) In the case of acquisitions of some but not all of the businesses
or assets of a U.S. person, 800.402(c) only requires submission of the
specified information with respect to the business or assets that have
been or are proposed to be acquired.
(g) Persons filing a voluntary notice shall, in respect of the
foreign person making the acquisition, its parent and affiliates, the
U.S. person being acquired, and each entity of which it is a parent,
append to the voluntary notice the most recent annual report of each
such entity, if available. Separate reports are not required for any
entity whose financial results are included within the consolidated
financial results stated in the annual report of any direct or indirect
parent of any such entity.
(h) Persons filing a voluntary notice shall, during the time that the
matter is pending before the Committee or the President, promptly advise
the Staff Chairman of any material changes in plans or information
provided to the Committee. See also 800.701(a).
31 CFR 800.403 Treatment of certain voluntary notices.
The Committee, acting through the Staff Chairman, may
(a) Reject voluntary notices not complying with 800.402;
(b) Delay the beginning of the thirty-day review period until
information specified in 800.402 has been furnished to the Committee;
(c) Reject any voluntary notice at any time if, after the notice has
been submitted and before action by the Committee or the President has
been concluded, there is a material change in the transaction as to
which notification has been made; and
(d) Notify the party submitting a voluntary notice that an analysis
of national security considerations will not be undertaken in cases
where the Committee has found that a transaction presented is not
subject to Section 721.
Example 1. The Staff Chairman receives a joint filing by Corporation
A, a foreign person, and Corporation X, a company that is owned and
controlled by U.S. nationals, with respect to Corporation A's intent to
purchase all of the shares of Corporation X. The joint filing does not
contain any information described under 800.402(c)(3) (iv) and (v)
concerning classified materials and products or services supplied to the
U.S. military services. The Staff Chairman may (1) reject the filing,
or (2) delay the start of the thirty-day review period while the parties
are asked to supply the omitted information.
Example 2. Same facts as in first sentence of Example 1, except that
the joint filing indicates that Corporation A does not intend to
purchase Corporation X's Division Y, which is engaged in classified work
for a U.S. Government agency. Corporations A and X notify the Committee
on the 25th day of the 30-day notice period that Division Y will also be
acquired by Corporation A. This fact constitutes a material change with
respect to the transaction as originally notified, and the Staff
Chairman may reject the notice.
Example 3. The Staff Chairman receives a joint filing by Corporation
A, a foreign person, and Corporation X, a company that is owned and
controlled by U.S. nationals, indicating that Corporation A intends to
purchase 10.5 percent of the voting securities of Corporation X. Under
the particular facts and circumstances presented, the Committee
concluded that Corporation A's purchase of this interest in Corporation
X would not constitute control as defined in 800.204. The Staff
Chairman may advise the parties in writing that the transaction as
presented is not subject to Section 721 and that no analysis of national
security considerations has been undertaken.
31 CFR 800.404 Beginning of thirty-day review period.
(a) A thirty-day period for review of the acquisition shall be deemed
to commence on the next calendar day after voluntary notice has been
accepted, agency notice has been received by the Staff Chairman of the
Committee, or the Chairman of the Committee has requested an
investigation pursuant to 800.401. Such review shall end no later than
the thirtieth day after it has commenced, or if the thirtieth day is not
a business day, no later than the next business day after the thirtieth
day.
(b) Within two business days after its receipt by the Staff Chairman,
the Staff Chairman of the Committee shall send written advice of an
agency notice to the parties to an acquisition.
31 CFR 800.404 Subpart E -- Committee Procedures: Review and Investigation
31 CFR 800.501 General.
(a) The Committee's review or investigation (if it has been
determined that an investigation shall be conducted) shall examine, as
appropriate, whether:
(1) The acquisition is by or with a foreign person and could result
in control by a foreign person of a U.S. person or persons engaged in
interstate commerce in the United States;
(2) There is credible evidence to support a belief that the foreign
interest exercising control of the U.S. person to be acquired might take
action that threatens to impair the national security; and
(3) Provisions of law, other than Section 721 and the International
Emergency Economic Powers Act (50 U.S.C. 1701-1706), provide adequate
and appropriate authority to protect the national security.
(b) During the thirty-day review period or during an investigation,
the Staff Chairman may invite the parties to a notified transaction to
attend a meeting with the Committee staff to discuss and clarify issues
pertaining to the transaction. During an investigation, a party to the
investigated transaction may request a meeting with the Committee staff;
such a request ordinarily will be granted.
31 CFR 800.502 Determination not to investigate.
(a) If the Committee determines, during the review period described
in 800.404, not to undertake an investigation, such determination shall
conclude action under Section 721.
(b) The Staff Chairman of the Committee shall promptly advise the
parties to an acquisition of a determination not to investigate.
31 CFR 800.503 Commencement of investigation.
(a) If it is determined that an investigation should be undertaken,
such investigation shall commence no later than the end of the
thirty-day period described in 800.404.
(b) The Staff Chairman of the Committee shall promptly send written
advice to the parties to an acquisition of the commencement of an
investigation.
31 CFR 800.504 Completion or termination of investigation and report to
the President.
(a) The Committee shall complete its investigation no later than the
forty-fifth day after the date the investigation commences, or, if the
forty-fifth day is not a business day, no later than the next business
day after the forty-fifth day.
(b) Upon completion or termination of any investigation, the
Committee shall report to the President and present a recommendation.
Any such report shall include information relevant to subparagraphs (d)
(1) and (2) of Section 721. If the Committee is unable to reach a
unanimous recommendation, the Chairman shall submit a report of the
Committee to the President setting forth the differing views and
presenting the issues for decision.
31 CFR 800.505 Withdrawal of notice.
(a) A party to an acquisition that has submitted notice under
800.401(a), or, if more than one such party has submitted notice, the
parties to an acquisition, may, at any time prior to an announcement by
the President of his decision as described in 800.601, request in
writing that such notice(s) be withdrawn. Such request shall be
directed to the Staff Chairman and shall state the reasons why the
request is being made. Such requests will ordinarily be granted, except
as determined by the Committee. A written notification of the decision
on the request to withdraw notice shall be sent promptly to the
requester(s).
(b) Any withdrawal in writing of an agency notice by the agency that
submitted it shall be effective on its receipt by the Staff Chairman,
who shall promptly send notice of the withdrawal to the parties to an
acquisition.
(c) In any case where a request to withdraw notice is granted under
paragraph (a), or where the withdrawal is effective under paragraph (b)
of this section, or where notice has been rejected under 800.403, such
notice shall be considered not to have been made for purposes of
800.401. Section 800.702 shall nevertheless apply with respect to
information or documentary material filed with the Committee. With
respect to any subsequent acquisition among the parties that is within
this part, notice made in accordance with 800.401 shall be deemed a new
notice for purposes of these regulations, including 800.601.
31 CFR 800.505 Subpart F -- Presidential Action
31 CFR 800.601 Statutory time frame, standards for Presidential action,
and permissible actions under Section 721.
(a) The President shall announce his decision to take action pursuant
to Section 721 no later than the fifteenth day after an investigation is
completed, or, if the fifteenth day is not a business day, no later than
the next business day following the fifteenth day.
(b) The President may exercise the authority conferred by Section
721(c) if the President makes the findings required by Section 721(d),
namely, that --
(1) There is credible evidence that leads the President to believe
that the foreign interest exercising control might take action that
threatens to impair the national security, and
(2) Provisions of law, other than Section 721 and the International
Emergency Economic Powers Act (50 U.S.C. 1701-1706), do not in the
President's judgment provide adequate and appropriate authority for the
President to protect the national security in the matter before the
President.
The President's findings under Section 721(d) shall not be subject to
judicial review.
(c) Under Section 721 (c) and (d), the President:
(1) Is empowered to take such action for such time as the President
considers appropriate to suspend or prohibit any acquisition subject to
Section 721 that is the subject of a recommendation or recommendations
by the Committee; and
(2) Is empowered to direct the Attorney General to seek appropriate
relief, including divestment relief, in the district courts of the
United States in order to implement and enforce Section 721.
(d) All authority available to the President under Section 721(c),
including divestment authority, shall remain available at the discretion
of the President in respect of acquisitions which have been concluded at
any time on or after the effective date, but only if the purpose for
which divestment or other appropriate relief is sought is based on
facts, conditions, or circumstances existing at the time the transaction
was concluded. Such authority shall not be exercised if:
(1) The Committee, through its Staff Chairman, has in writing advised
a party (or the parties) that a particular transaction, with respect to
which voluntary notice was attempted, was not subject to Section 721;
(2) The Committee has previously determined under 800.502 not to
undertake an investigation of the acquisition when proposed, pending, or
completed; or
(3) The President has previously determined not to exercise his
authority under Section 721 with respect to that acquisition.
(e) Notwithstanding any other provision in these regulations, in any
case where the parties to an acquisition submitted false or misleading
material information to the Committee, or omitted material information,
including relevant information that was supplied in response to
provisions of 800.402; that was requested specifically by the
Committee in the course of review, investigation, or Presidential
determination; or that was actually provided by a party, in addition to
such other penalties as may be provided by law,
(1) The Committee may reopen its review or investigation of the
transaction, and revise any recommendation or recommendations submitted
to the President;
(2) Any Committee member may submit or resubmit an agency notice
under 800.401, to begin anew the process of review and investigation;
and/or
(3) The President may take such action for such time as the President
deems appropriate in respect of the acquisition, and may revise actions
earlier taken.
(f) The Committee will generally not consider as material minor
inaccuracies, omissions, or changes relating to financial or commercial
factors not having a bearing on national security.
Example 1. Corporation A, a foreign person, states in its joint
filing with Corporation X, a U.S.-controlled person, that Corporation A
will acquire all of the shares of Corporation X at $100 per share on
July 31, 1991. For commercial reasons, the acquisition in fact takes
place on August 31 of the same year, and the actual price paid per share
is $150. The Committee would not regard these factors alone as reason
to set aside a prior decision by the Committee not to investigate the
proposed transaction.
Example 2. Same facts as stated in sentence one of Example 1, except
that the joint filing of Corporations A and X also states, in responding
to section 800.402(b)(3)(iv), that Corporation X has no contracts
involving classified information. In fact, Corporation X has classified
contracts with the Department of Defense. The statement would be
considered false and could lead to action by the Committee under
paragraph (e) of this section.
(g) Divestment or other relief under Section 721 shall not be
available with respect to transactions that were concluded prior to the
effective date.
31 CFR 800.601 Subpart G -- Provision and Handling of Information
31 CFR 800.701 Obligation of parties to provide information.
(a) Parties to a transaction which is notified under subpart D shall
provide information to the Staff Chairman of the Committee that will
enable the Committee to conduct a full review and/or investigation of
the proposed transaction, and shall promptly advise the Staff Chairman
of any changes in plans or information pursuant to 800.402(h). See,
generally, 50 U.S.C. app. 2155(a) for authorities available to the
Committee for obtaining information.
(b) Documentary materials or information required or requested to be
submitted under this part shall be submitted in English. Supplementary
materials, such as annual reports, written in a foreign language, shall
be submitted in certified English translation, at the request of the
Committee.
31 CFR 800.702 Confidentiality.
(a) Section 721(h) provides that any information or documentary
material filed with the Committee pursuant to these regulations shall be
exempt from disclosure under section 552 of title 5, United States Code,
and no such information or documentary material may be made public,
except as may be relevant to any administrative or judicial action or
proceeding. Nothing in Section 721 shall be construed to prevent
disclosure to either House of Congress or to any duly authorized
committee or subcommittee of the Congress.
(b) The provisions of 50 U.S.C. app. 2155(e) relating to fines and
imprisonment shall apply in respect of disclosure of information or
documentary material filed with the Committee under these regulations.
31 CFR 800.702 Pt. 800, App.
31 CFR 800.702 Appendix to Part 800 -- Preamble to Regulations on
Mergers, Acquisition, and Takeovers by Foreign Persons (Published
November 21, 1991)
Note: For the convenience of the reader, this appendix contains the
text of the preamble to the final regulations on mergers, acquisitions
and takeovers by foreign persons beginning at the heading ''Discussion
of Final Rule'' and ending before ''List of Subjects in 31 CFR Part
800'' (56 FR 58780; November 21, 1991).
31 CFR 800.702 Discussion of Final Rule
31 CFR 800.702 I. Introduction
On July 14, 1989, the Department of the Treasury published proposed
Regulations Pertaining to Mergers, Acquisitions and Takeovers by Foreign
Persons. The purpose of the proposed regulations was to implement
Section 721 (hereinafter referred to as ''Section 721'') of Title VII of
the Defense Production Act of 1950, as added section 5021 of the Omnibus
Trade and Competitiveness Act of 1988 (Pub. L. 100-418), relating to
mergers, acquisitions, and takeovers of U.S. persons by or with foreign
persons. Section 721, which was subject to the sunset provision of the
DPA, lapsed on October 20, 1990, and was reinstated and made permanent
law by Public Law 102-99 (signed August 17, 1991).
The period for receiving comments on the proposed regulations closed
on September 14, 1989; during that time, over seventy parties --
including private and public, as well as domestic and foreign entities
-- filed in total some 500 pages of comments. The changes that have
been incorporated into the final version of the regulations reflect both
suggestions made in those comments and the experience of the Committee
on Foreign Investment in the United States (''the Committee'') in
reviewing transactions notified under Section 721 since the proposed
regulations were published. These changes are of a substantive nature
as well as of a technical nature; examples of the latter include
clarifications of terms and changes in format. The substantive issues
will be discussed in the next section; the most significant technical
changes will be discussed in the third section of this preamble.
31 CFR 800.702 II. General Discussion: Major Substantive Issues
Raised by the Public Comments
Despite the wide range of interests represented by the public
comments and the large volume of those comments, the comments generally
focused on nine major issues: the meaning of ''national security'';
the scope of Section 721's coverage, focusing largely on the size of a
transaction or date of completion; the definition of ''foreign
control''; the application of Section 721 to foreign lenders; the
desirability of fast track treatment for certain types of transactions;
the treatment of transactions involving hostile parties; the provisions
of the regulations providing remedies for material omissions or errors;
Committee procedures; and the possibility of a ''sunset'' on the
President's power to act under Section 721 on non-notified transactions.
The suggested resolutions of these issues varied significantly in many
cases. Each of these major issues, including some of the resolutions
proposed by the public, will be discussed generally in this section of
the preamble. A more detailed analysis, tied to the actual wording of
the final regulations, follows in the next section. The final section
reiterates certain information on international obligations of the
United States that was set forth in the preamble to the proposed
regulations.
31 CFR 800.702 National Security
The desire for a definition of ''national security,'' or for expanded
guidance as to the meaning of that term, was a major theme of the public
comments. Commenters had a wide range of recommendations on this point.
Their suggestions, as well as the Committee's view of them, will be
discussed generally in the following paragraphs.
Some commenters suggested that changes be made in the regulations to
incorporate either positive lists of products and services considered
essential to the national security, or negative lists of areas that are
not so considered. Other commenters suggested that the regulations
incorporate a multi-factor test, based on a list of products and
services the significance of which to the national security would depend
on a number of other factors, such as the dollar value of the
transaction, or the availability of the product or service from other
U.S. suppliers. The Committee rejected these proposals, because they
could improperly curtail the President's broad authority to protect the
national security, and, at the same time, not result in guidance
sufficiently detailed to be helpful to parties.
A third approach recommended in the public comments was to offer
guidance as to the factors that are considered in a national security
analysis. Such guidance would not have the legal effect of exemptions
or lists, but would be intended to give the Committee's general views as
to when filing might be considered appropriate. The Committee has
adopted a limited form of this latter approach; however, since it
believes such guidance is more appropriate to the preamble than the
regulations themselves, the guidance is set forth below.
As is made clear in the principal legislative history (H.R. Report
No. 576, 100th Cong., 2d Sess. 925-928, hereinafter ''Conference
Report''), the focus of Section 721 is on transactions that could
threaten to impair the national security. Although neither the statute
nor the Conference Report defines national security, the conferees
explain that it is to be interpreted broadly and without limitation to
particular industries. Conference Report at 926-927. In line with both
the statute and the Conference Report, the final regulations do not
define ''national security.'' Ultimately, under Section 721 and the
Constitution the judgment as to whether a transaction threatens national
security rests within the President's discretion.
Generally speaking, transactions that involve products, services, and
technologies that are important to U.S. national defense requirements
will usually be deemed significant with respect to the national
security. It is the Committee's view that notice, while voluntary,
would clearly be appropriate when, for example, a company is being
acquired that provides products or key technologies essential to U.S.
defense requirements. On the other hand, the Committee does not intend
to suggest that notice should be submitted in cases where the entire
output of a company to be acquired consists of products and/or services
that clearly have no particular relationship to national security.
The regulations contemplate that persons considering transactions
will exercise their own judgment and discretion in determining whether
to give notice to the Committee with respect to a particular
transaction. Nonetheless, persons wishing to seek general guidance are
invited to contact the office of the Staff Chairman, at the address and
telephone number indicated above.
In addition to proposing changes to the regulations themselves, a
number of commenters suggested that the Committee publish guidance
outside the regulations, in order to enhance public understanding of
''national security.'' For example, some suggested that the Committee
issue binding advisory opinions with respect to transactions on the
strength of something less than full notice. The Committee rejected
this suggestion on the grounds that it would be impossible for the
Committee to fulfill its obligation to make a thorough national security
analysis based on an abbreviated or informal filing, and the Committee
in such cases would generally have to advise the parties to submit a
formal filing, resulting in lost time on both sides.
Several parties asked the Committee to consider publishing in summary
form a digest of all the reviews and investigations the Committee had
undertaken, including information on how the Committee disposed of each
transaction. This approach was determined to have two essential
shortcomings. First, national security considerations preclude
revealing why the Committee or the President reached a particular view.
Without that information, parties could inappropriately conclude that an
outcome in a previous case would be relevant to the outcome of their own
case where both appeared to involve similar facts and circumstances.
The public would have no way of assessing which factors were most
important to the Committee's final determination, or whether other
factors, not mentioned in the summary, played an important role in the
outcome. Second, the Committee is statutorily required to maintain
confidentiality with respect to Section 721 filings. Publication of
even ''cleansed'' summaries could sacrifice the confidentiality of a
filing and potentially create concerns by parties over inadvertent
publication of business confidential information, while affording
relatively little useful information to readers.
31 CFR 800.702 Scope of Coverage
With respect to the scope of coverage of Section 721, a number of
parties suggested various ''bright line'' tests to eliminate certain
transactions from coverage, primarily based on their size, but also on
other criteria. For example, it was frequently suggested that
transactions under a certain dollar threshold be exempted, on the theory
that very small acquisitions could not possibly have a meaningful impact
on the national security. Other parties suggested a test based on the
market share represented by a particular transaction. Because the
Committee's experience in reviewing notified transactions has
demonstrated that there is no predictable relationship between the size
or dollar value of a transaction and its significance to the national
security, it decided that it would be inappropriate to adopt bright line
tests based on such criteria.
Many commenters argued that there should be an exemption for
transactions completed after the date on which Section 721 became
effective (August 23, 1988), but which were not notified to the
Committee. The Committee has not adopted this suggestion, which, in the
Committee's view, would seriously undermine the effectiveness of the
statute.
The regulations establish a voluntary, rather than a mandatory,
system of notice. Nevertheless, the Committee wanted to ensure that the
President would be able to act with respect to any transaction that
might threaten the national security. For this reason, agency notice
was permitted for transactions that were not notified by parties to the
transaction. Also, as an incentive for parties to give notice of
transactions that might raise concerns, the possibility of Presidential
action exists for completed transactions that have not been notified to
the Committee.
This approach is justified by the language of Section 721. The first
sentence of paragraph (a) of Section 721 provides:
The President or his designee may make an investigation to determine
the effects on national security of mergers, acquisitions, and takeovers
proposed or pending on or after the date of enactment of this section by
or with foreign persons which could result in foreign control of persons
engaged in interstate commerce in the United States. (Emphasis
provided).
The plain meaning of this sentence is that one of two criteria must
be present to bring a transaction under Section 721. A transaction must
have been proposed on or after the date of enactment, or it must be (or
have been) pending on or after the date of enactment to be subject to
Section 721. This language does not exclude completed transactions.
Thus, a transaction proposed on or after the date of enactment --
regardless of whether it is completed by the time of notice -- is
subject to Section 721. Similarly, a transaction proposed before the
effective date but still pending on or after that date would also be
subject to Section 721, again, regardless of whether it was completed at
the time of notice.
Some commenters have read the second sentence of Section 721(a) as
suggesting that Congress did not intend to capture completed
transactions. That sentence reads: ''If it is determined that an
investigation should be undertaken, it shall commence no later than 30
days after receipt by the President or the President's designee of
written notice of the proposed or pending merger, acquisition, or
takeover as prescribed by regulations promulgated pursuant to this
section.'' (Emphasis added.) Some commenters have argued that this
sentence suggests that transactions must also be proposed or pending as
of the time of notice, thereby precluding notice of completed
transactions.
However, it would be inconsistent with the national security purposes
of the statute to infer that Congress intended to establish a large
loophole by which parties could avoid a review under Section 721 simply
by not giving notice of a transaction. It is much more reasonable to
view this language as reflecting the usual case, i.e., that parties give
notice or transactions while they are still proposed or pending, but not
precluding notice of completed transactions as well. Once a transaction
is subject to Section 721, all of the powers and remedies granted the
President under that section apply to the transaction, including, but
not limited to, divestment relief. Section 721(c) provides that the
President may ''take any action * * * to suspend or prohibit any
acquisition * * * proposed or pending on or after the date of enactment
of this section * * * so that (foreign) control will not threaten to
impair the national security.'' Section 721(c) further provides that the
President ''may direct the Attorney General to seek appropriate relief,
including divestment relief * * * in order to implement and enforce this
section.'' Again, the relief available under the statute for any
transaction pending on or after the date of enactment is broad, and
nothing in the statute narrows the availability of any Presidential
remedies.
31 CFR 800.702 Foreign Control
The proposed regulations defined control functionally, in terms of
the ability of the acquirer to make certain important decisions about
the acquired company, such as whether to dissolve the entity, or to
relocate or close production or research and development facilities. A
number of commenters complained that this standard is too nebulous, and
advocated the adoption of a bright line control test based on a
particular percentage of stock ownership and/or the composition of the
board of directors. Given the national security purposes underlying
Section 721, the Committee believes it would be inappropriate to adopt
such bright line tests, which would make it relatively easy to structure
transactions to circumvent the statute. However, the Committee did make
certain minor adjustments in the control standard to remove unnecessary
ambiguity. These changes are discussed below in the section-by-section
analysis at 800.204 and 800.211.
31 CFR 800.702 Foreign Lenders
At the time the proposed regulations were drafted, the Committee had
almost no information on how Section 721 would affect transactions
involving foreign lenders. The proposed regulations were therefore
deliberately vague as to whether foreign lending transactions would be
covered and, if so, the appropriate time for giving notice -- i.e., at
the time a loan was made, or at the time of default. Since the
publication of the proposed regulations in July 1989, the Committee has
had more experience in reviewing lending transactions, in addition to
the benefit of the public comments. Although the comments were not
unanimous on this point, most commenters urged that lending transactions
not be covered at the time a loan is made, in view of the unlikelihood
that the loan itself will culminate in the foreign lender's acquiring
control.
However, these commenters were nevertheless concerned that foreign
lenders be given some assurance that the value of their security
interest would not be affected by CFIUS action. The Committee concluded
that the acquisition of a security interest, without control, is not
covered by Section 721. Thus, if a lending transaction included, for
example, contractual or other arrangements that conferred control, the
transaction would be subject to Section 721. However, the Committee
would not view standard provisions of loan contracts (e.g., ordinary
covenants of the borrower pertaining to liens, or a lender's right of
veto over mergers or the sale of property), in and of themselves, to
confer control over the borrower. (See the discussions below under
800.302 and 800.303 for further elaboration of the treatment of foreign
lending transactions.)
31 CFR 800.702 Internal Fast Track Mechanism
A number of commenters urged the adoption of a fast track procedure
for reviewing notices under Section 721 that clearly do not raise
serious national security concerns. Because of the very short time
frame for reviews that already exists (as provided in the statute), and
in order not to encourage parties to give notice of marginal
transactions, the Committee decided not to create a formal fast track in
the regulations. The Committee Staff Chairman is available to discuss
proposed transactions with parties contemplating notice.
31 CFR 800.702 Hostile Takeovers
Fast track treatment of notified transactions involving hostile
parties was also requested in several of the comments, on the grounds
that the delay caused by Committee review under Section 721 can unfairly
give a target company time to thwart an unsolicited bid. Although this
has not been a significant problem to date, the Committee will not
tolerate attempts to delay or obstruct the review process; the final
regulations make clear that the parties that did not file the notice
must file information requested by the Staff Chairman within seven days
of that request. (See the discussion in the section-by-section analysis
at 800.402.) If necessary, the Committee can resort to its subpoena
authority in the Defense Production Act to enforce compliance with
Section 721.
31 CFR 800.702 Remedies for Material Omissions and Errors
Many of the commenters contended that the absence of any definition
for ''material'' in 800.601 (pertaining to material omissions) and
800.701 (pertaining to material changes) creates uncertainty about the
finality of any decision by the President not to investigate or take
other action with respect to a notified transaction. To lessen this
uncertainty, some commenters suggested that the final regulations
incorporate a limit on the President's authority to reopen consideration
of a transaction previously considered under Section 721 due to a
material omission. Others suggested that there be a time limit on the
Committee's ability to reject a notice on the grounds of material
change. The Committee did not adopt either of these time limitations.
The former could potentially reward parties who conceal information or
fail to take adequate care to bring all material facts about a
transaction to light in a notice. The latter limitation could prevent
the Committee from declining to complete its review of a transaction
that changes radically very late in the 30-day review period, and could
force an investigation even in a case where it would not otherwise be
necessary.
The Committee also did not accept the suggestion made by a few
commenters that a transaction be reopened only when the Committee can
show that the parties deliberately withheld material information. If
information is material to the Committee's or the President's
deliberation, it is irrelevant to the issue of materiality whether the
information was intentionally withheld. The Committee has accepted
suggestions that greater guidance as to the meaning of ''materiality''
be given in the regulations. It is also important to note that parties
may at any time during the course of a review under Section 721 amend
the notice to apprise the Committee of an omission in the original
filing or of a change in the transaction since the time the filing was
made, and that such an amendment will not necessarily affect the
Committee's ability to complete its review of the transaction within the
statutory time periods. From the parties' perspective, it is clearly
advantageous to bring material changes and omissions to light during the
course of a review, rather than to risk discovery of such matters by the
Committee at a subsequent time.
A material change that occurs during the course of review that is not
brought to the Committee's attention will be subsequently viewed as an
omission, and may cause the Committee to reopen its consideration of a
case. The same would be true of a change that occurs after the
President has announced his decision but was contemplated by the parties
at the time the transaction was under review and not communicated to the
Committee. However, recognizing that businesses often change in terms
of function and structure, the Committee would not consider a material
change that is both conceived and executed after the President's
determination as a basis for reopening a case.
31 CFR 800.702 Committee Procedures
Commenters made a number of suggestions regarding Committee
procedures. In some cases, the Committee had already been following the
recommended procedures, and the final rule makes that explicit. For
example, in appropriate instances, the Committee has met with parties
involved in particular transactions in order to obtain further
clarification or elaboration of the materials presented in the initial
filing.
It is worth noting that the Committee follows certain other
procedures, not spelled out in the final regulations, that help ensure
the fairness of the review process. For example, the Committee
sometimes receives unsolicited communications from third parties
concerning certain transactions. In order to ensure fairness, the
Committee generally requests the parties to comment on the substance of
third party communications that the Committee believes may be relevant
to its full understanding of the notified transaction. Similarly, the
Staff Chairman handles all communications by the Committee with the
parties, so as to avoid any confusion resulting from contacts with
individual Committee members by the parties or third parties.
A number of the recommendations in the comments about Committee
procedures would make the review process a highly formalistic,
adversarial process. This outcome was considered undesirable by the
Committee, and such recommendations were not accepted. For example, the
Committee did not adopt the suggestion that the parties be required to
exchange public versions of their submissions to the Committee, or that
material be filed only under oath. The Committee believes that giving
the parties an opportunity to comment, when appropriate, on the
substance of statements made by each other, as well as by
non-governmental third parties, adequately ensure the integrity of the
review process.
31 CFR 800.702 Sunset on Presidential Authority Under Section 721
Another concern expressed in the public comments pertained to the
fact that the statute places no time limits on the President's authority
to take action with respect to non-notified transactions. Some
commenters argued that the absence of a limit on the President's power
to divest a completed transaction effectively converts Section 721 into
a screening mechanism, since most parties will file notices to eliminate
the possibility of future divestment. Several commenters suggested
adoption of a sunset.
The Committee acknowledges that parties may have to make difficult
decisions about whether or not to file under Section 721, particularly
when time is a critical factor in closing a deal. However, in the
Committee's view, it would be inappropriate for the regulations to limit
the President's authority to protect the national security with respect
to any given transaction after a particular time. Instead, the
regulations contain a new provision that limits to three years the time
during which an agency can give notice with respect to a completed
transaction. After the three year period, only transactions that appear
to raise national security concerns can be reviewed and investigated,
pursuant to a request from the Chairman of the Committee, in
consultation with other members of the Committee. (See below 800.401.)
Some commenters evidently fear that a transaction could be reviewed
several years after it was completed. The Committee notes that
divestment with respect to a completed but non-notified transaction
would be limited by the requirement in paragraph (d) of 800.601 that it
be based on facts, conditions, or circumstances existing at the time the
transaction was concluded. Parties should also note the addition of a
new limitation on reviewing completed transactions, which has been
incorporated at 800.601(d). Advice in writing by the Committee that a
notified transaction is not subject to Section 721, e.g., because the
transaction would not result in foreign control of a U.S. business, is
final and binding with respect to the transaction, as long as the
information on which that determination is based is accurate with
respect to the transaction. However, subsequent changes in the material
facts pertaining to control, e.g., a proposal by the foreign party to
acquire additional stock, may result in a situation where notice to the
Committee could be appropriate.
31 CFR 800.702 International Obligations
In discharging its responsibilities under Section 721, the Committee
takes a case-by-case approach. The Conference Report states that
Section 721 is not intended to abrogate existing obligations of the
United States under treaties, including Treaties of Friendship, Commerce
and Navigation. Conference Report at 927. Those treaties contain
national treatment provisions under which the United States is obligated
to extend foreign parties treatment no less favorable than that accorded
domestic parties, but is permitted to institute measures to protect U.S.
national security. The Committee intends to implement Section 721 and
the regulations in a manner fully consistent with the international
obligations of the United States.
31 CFR 800.702 III. Section-by-Section Discussion of Changes
The Definitions section, subpart B, has been alphabetized.
Section 800.201. In subsection (a), the definition of acquisition has
been expanded to include specifically the acquisition of a person by a
proxy contest undertaken for the purpose of obtaining control. In the
preamble to the proposed regulations, the Committee requested public
comments on the desirability of covering proxy contests under the
regulations. The comments were inconclusive on this point. The
Committee decided to cover specifically proxy contests undertaken for
the purpose of obtaining control, such as a contest to change the board
of directors, because such a contest represents a takeover attempt.
Parties may give notice at or just prior to the time a proxy
solicitation commences. However, contests undertaken for any purpose
other than to obtain control would not be covered by the regulations.
In subsection (b), qualifying language has been added to the
provision concerning the acquisition of assets where, in addition to the
asset acquisition, the acquirer will make substantial use of the
seller's technology. The qualifier ''excluding technical information
generally accompanying the sale of equipment'' is intended to convey
that an acquisition of assets is not covered by Section 721 unless the
technology acquired by the foreign person is separate and apart from
that inherent in, or typically accompanying the asset, such as
instruction manuals and operating procedures that would routinely
accompany equipment.
Section 800.204. The definition of control in the proposed
regulations included the ability to ''formulate'' matters or decisions
affecting an entity. A number of public commenters noted that the
ability to ''formulate'' in this sense is not a meaningful index of
control, since technically any shareholder has this right. To alleviate
any uncertainty on this point, ''formulate'' has been dropped from the
definition.
The definition of control has also been modified with the addition of
subsection (b) to clarify that a U.S. person will not automatically be
deemed to be foreign-controlled where a number of unrelated foreign
parties hold an interest in that person. This point would apply even
when the foreign parties taken as a whole hold the majority of stock in
a U.S. company. The Committee would have to determine in such a case, as
it would in any notified transaction, whether any single foreign party,
acting on its own or in concert with another party (e.g., through
contractual arrangements), could control the U.S. person.
Section 800.211. A minor change to the wording of the definition of
''foreign person'' has been made to emphasize that there must be the
present potential for control by a foreign interest, rather than a mere
remote possibility, for an entity to be considered a foreign person
under Section 721. Whereas the regulation previously read ''an entity
over which control is or could be exercised by a foreign interest,'' the
underlined phrase has been replaced by ''exercised or exercisable'' to
alleviate vagueness or remoteness in the standard. Thus, only the
present potential for control (regardless of whether the foreign
interest actually exercises it) matters for purposes of this section.
Section 800.214. The proposed regulations left unresolved the issue
of who are the parties to an acquisition in the case of a proxy
solicitation. In light of the Committee's decision to cover proxy
solicitations undertaken for the purpose of obtaining control just prior
to and at the time the solicitation is made, the final regulations make
both the persons soliciting proxies as well as the person who issued the
voting securities parties to the acquisition.
Section 800.217. To make this section consistent with the modified
definition of control, the word ''formulation'' has been deleted from
the definition of ''solely for the purpose of investment.'' (See section
800.204 above.) With respect to section 800.302(d) (which should be
consulted), a party that has no intention of determining or directing
the basic business decisions of the issuer, and who does not possess or
develop any purpose other than investment, or take any action
inconsistent with that purpose, would be deemed to hold securities
solely for the purpose of investment.
Section 800.220. This section defines U.S. person as any entity ''but
only to the extent of its business activities in interstate commerce in
the United States, irrespective of the nationality of the individuals or
entities which control it.'' To underscore the significance of that
qualifier to the definition, a third example has been added to this
section. The example describes the acquisition by a foreign person of a
foreign subsidiary of a U.S. corporation. In the facts presented by the
example, the foreign subsidiary has no fixed place of business in the
United States, but merely exports goods to the U.S. parent and to
unaffiliated companies in the United States. The acquisition of such an
entity by a foreign person would not constitute the acquisition of a
U.S. person under Section 721 because the mere export of goods to the
United States by a foreign subsidiary with no fixed place of business in
this country does not constitute ''business activity in interstate
commerce in the United States'' for purposes of the Section.
Section 800.301. A few points pertaining to joint venture
transactions have been clarified in this section. First, a joint
venture transaction is subject to Section 721 only if an existing,
identifiable business in the United States is contributed to the
venture. A joint venture transaction in which the U.S. contribution is
a company founded for the purposes of the transaction would not be
subject to Section 721. Moreover, even where an identifiable business
has been contributed to the venture, the transaction is not subject to
Section 721 unless the foreign party would control the venture.
Therefore, joint venture transactions in which control is equally shared
by the U.S. partner and the foreign partner, i.e., where each party has
a veto power over all the decisions of the joint venture, would not be
subject to Section 721. It is important to note, however, that this
rule does not apply to other forms of business organization, such as
when a foreign person acquires 50 percent of the stock of an existing
U.S. company. In such cases, the Committee may, depending on the other
facts surrounding the transaction, conclude that the stock acquisition
confers control on the foreign person.
Section 800.302. Subsection (i) has been added to section 800.302 as
a corollary to section 301(b)(1), which provides that proposed or
completed acquisitions by or with foreign persons which could or do
result in foreign control of a U.S. person would be subject to Section
721. Subsection (i) of 800.302 provides that an acquisition (1) that
does not involve the acquisition of control of (2) a person engaged in
interstate commerce in the United States (i.e., a U.S. person) would not
be subject to Section 721. Two examples are provided to illustrate the
two components of this provision. First, with respect to the
acquisition of control, when a foreign person acquires an interest, such
as stock, in a U.S. person, but that interest is insufficient to confer
control, the acquisition is not subject to Section 721. The Committee's
options for handling a notice of such a transaction are set out in
800.403 of the regulations.
Second, with respect to the component pertaining to being engaged in
interstate commerce in the United States, Example 2 is intended to
illustrate that the acquisition of a business that is essentially a
non-operational shell -- i.e., having no employees, plants, equipment,
or subsidiaries in the United States -- would not satisfy this component
and would therefore not be an acquisition subject to Section 721.
Section 800.303. This section has been added to the regulations to
clarify the Committee's treatment of lending transactions. As explained
under 800.302 above, the acquisition of a security interest by a
foreign lender in a lending transaction does not, without control,
subject a transaction to Section 721. Section 800.303 provides that the
Committee will not accept notices of such transactions. However, the
Committee will accept notice of such transactions where, because of
actual or imminent default or other condition, the foreign lender is
likely to obtain control of the U.S. person. In general, the Committee
will accept the parties' view of the imminence of default, recognizing
that in some cases waiting too long before filing notice could affect
the lender's recourse to certain remedies, or the willingness of the
borrower to cooperate fully in the preparation of a filing.
Some commenters argued that if the Committee does not accept notices
of lending transactions until actual or imminent default, the lender
will never have adequate assurance of the value of its security
interest, which may eventually discourage foreign lenders from entering
into financing transactions that may be subject to Section 721. Some
argued that the acquisition of stock or assets as a result of a default
should be exempt from Section 721, because it is essentially similar to
an acquisition pursuant to an insurance contract made in the ordinary
course of business, which is exempt under 800.302(g). The Committee
does not find it appropriate to exempt the acquisition of a U.S. person
that results from a borrower's default. However, to help alleviate the
lenders' concerns in such circumstances, the Committee will take into
account steps the lender takes to transfer day-to-day control over the
U.S. person to U.S. nationals, pending final sale of the U.S. person.
For example, in appropriate cases, the Committee could determine that
the lender does not control a company acquired through default when it
appoints a trustee to run the company and commits to sell it within a
specified reasonable period of time.
Section 800.303 also contains a special provision -- subsection (b)
-- for foreign banks participating in loan syndications. In view of the
limitations on control of the borrower by any one bank that are often
inherent in the structure of a syndicate of banks in a loan
participation, the Committee will deem any foreign lender in a syndicate
not to have control for purposes of Section 721 where such lender needs
the consent of the majority of the U.S. participants to take action, or
does not have a lead role in the syndicate and is subject to a special
provision limiting its influence, ownership or control over the
borrower.
Section 800.401. This section contains a new provision with respect
to non-notified transactions. No agency notice can be made with respect
to such a transaction more than three years after the date it was
concluded unless the Chairman of the Committee, in consultation with
other members of the Committee, requests an investigation. This
provision was added to assuage public concern that non-notified
transactions are indefinitely subject to divestment by the President.
The President's powers under Section 721 are not affected by this
provision.
Section 800.402. Until now, the Committee has been willing to accept
notices of transactions from just one of the parties to a transaction,
recognizing that in some cases one of the parties alone will be able to
provide answers and materials responsive to the questions posed in
800.402. Although the Committee will continue to accept joint notices
prepared by just one party to a transaction that give information with
respect to all the parties, the final regulations require all the
parties to sign such a filing, thereby indicating to the Committee that
each party is satisfied that the information in the filing pertaining to
it is accurate and complete.
With respect to filings submitted by a party independently of the
other parties, several points are worth noting. First, a minor wording
change has been made in paragraph (1) of subsection (b) of this section
for purposes of clarity: ''Such information'' has been replaced by
''the information set out in this section.'' Although the phrase in that
paragraph, ''to the extent known or reasonably available to it,''
remains unchanged from the proposed regulations, it merits discussion
here in order to remove any uncertainty. When a party giving notice is
unable to answer fully a question pertaining to the other party, it is
not excused by the words ''to the extent known or reasonably available
to it'' from submitting a complete and accurate filing, as has evidently
been assumed by some parties. The Committee expects that in such a case
either the party giving notice will obtain the assistance of the other
party or parties, or that the latter independently will make a filing to
the Committee, supplying the relevant information.
In any case, the Committee will delay beginning the initial
thirty-day review period until the filing is complete with respect to
both parties. Subsection (b) makes clear that the Staff Chairman of the
Committee, when necessary, will contact directly the party or parties
that did not file the notice and request that information responsive to
section 800.402 be filed within seven days of receipt of the request.
A new provision has been added to subsection (c), requesting parties
to submit a summary of the transaction. The Committee requests that the
party(ies) that give notice be as clear and concise as possible. A
readily understandable summary will expedite the Committee's work.
Paragraph (3) of subsection (c) has also been modified to lengthen
the period of time from three to five years for which contracts
involving classified information should be described in a filing. As
for contracts with the Department of Defense or any other agency of the
U.S. Government with national defense responsibilities (such as the
Department of Energy or the Nuclear Regulatory Commission), which
contracts do not involve classified information, parties should continue
to provide information for the past three years only.
Section 800.403. This new section sets out the Committee's options
for handling certain voluntary notices; most of these points have been
addressed in the preceding discussion. The Committee will delay
acceptance of a notice that does not comply with 800.402. It reserves
the right to reject a voluntary notice at any time before action by the
Committee or the President has been concluded, if there has been a
material change in the notified transaction.
As provided in 800.403(a)(4), the Committee will also inform the
party submitting a voluntary notice if it decides not to undertake a
substantive review of a transaction because it has determined that the
notified transaction is not subject to Section 721. For example, where
the Committee determines that a notified transaction will not result in
foreign control, the Committee would inform the parties of the nature of
its determination, (e.g., no foreign control) and advise them to
consider filing at a later date should an acquisition of control be
contemplated.
Section 800.404. A technical wording change has been made to this
section (which was numbered 800.403 under the proposed regulations).
The words ''has been accepted'' in the first sentence of that section
replace ''is received'' to underscore that the 30-day review period does
not begin until the Chair has determined that the voluntary notice
complies with the requirements of 800.402. Further technical changes
were made to subsection (a) to reflect changes made in 800.401
concerning agency notice.
Section 800.501. Subsection (b) has been added to this section to
make explicit a practice the Committee has been following since it began
receiving notices under Section 721, i.e., inviting the parties to
certain notified transactions to meet with the Committee. The Staff
Chairman, at his discretion, may invite the parties to a meeting to
clarify certain issues with respect to the filing; such a meeting may
occur either during the 30-day review period or during the
investigation. When the parties involved in investigations request a
meeting with the Committee, the request is ordinarily granted.
Section 800.601. A number of commenters expressed concern that the
finality of Committee or Presidential action under Section 721 is called
into question if there is a right to reopen consideration of a case on
the basis of material omissions or material misstatements. This section
has been expanded in an attempt to allay some of those concerns.
Subsection (f) has been added to clarify the matters the Committee
considers ''material'': These are confined to information requested by
800.402 of the regulations; information requested by the Committee
during the course of an initial review, an investigation, or the
Presidential determination period; or information provided by the
party(ies) sua sponte. However, the Committee will generally not find
information to be ''material'' if it concerns purely commercial matters
having no bearing on national security, such as the price of stock.
31 CFR 800.702 Drafting Information
The principal author of this document is the Office of the Assistant
General Counsel (International Affairs). However, personnel from other
offices at the Treasury Department and from other agencies that are
members of the Committee participated extensively in its development.
31 CFR 800.702 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Chap.
31 CFR 800.702 Table of CFR Titles and Chapters
31 CFR 800.702 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)
31 CFR 800.702 Title 2 -- (Reserved)
31 CFR 800.702 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
31 CFR 800.702 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
31 CFR 800.702 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 Counsel (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)
31 CFR 800.702 Title 6 -- (Reserved)
31 CFR 800.702 Title 7 -- Agriculture
Subitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subitle 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)
31 CFR 800.702 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
31 CFR 800.702 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)
31 CFR 800.702 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
31 CFR 800.702 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)
31 CFR 800.702 Title 15 -- Commerce and Foreign Trade
Subitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subitle 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)
Subitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
31 CFR 800.702 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 Title 24 -- Housing and Urban Development
Subitle A -- Office of the Secretary, Department of Housing and Urban
Development (Parts 0 -- 99)
Subitle 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)
31 CFR 800.702 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)
31 CFR 800.702 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
31 CFR 800.702 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
31 CFR 800.702 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)
31 CFR 800.702 Title 29 -- Labor
Subitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subitle 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)
31 CFR 800.702 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)
31 CFR 800.702 Title 31 -- Money and Finance: Treasury
Subitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subitle 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)
31 CFR 800.702 Title 32 -- National Defense
Subitle 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)
Subitle 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)
31 CFR 800.702 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)
31 CFR 800.702 Title 34 -- Education
Subitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subitle 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)
31 CFR 800.702 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
31 CFR 800.702 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
31 CFR 800.702 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
31 CFR 800.702 Title 41 -- Public Contracts and Property Management
Subitle 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)
Subitle 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)
Subitle D -- Other Provisions Relating to Property Management
(Reserved)
Subitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subitle 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)
31 CFR 800.702 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)
31 CFR 800.702 Title 43 -- Public Lands: Interior
Subitle A -- Office of the Secretary of the Interior (Parts 1 -- 199)
Subitle 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)
31 CFR 800.702 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)
31 CFR 800.702 Title 45 -- Public Welfare
Subitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subitle 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)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 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)
31 CFR 800.702 Title 49 -- Transportation
Subitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subitle 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 Federal Transit 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)
31 CFR 800.702 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)
31 CFR 800.702 CFR Index and Finding Aids Subject/Agency List of
Agency Prepared Indexes Parallel Tables of Statutory Authorities and
Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
31 CFR 800.702 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 from a non-Federal source for travel expenses 41, 304
Payment of Expenses Connected With the Death of Certain Employees 41,
303
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 from a non-Federal source for travel expenses 41, 304
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
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 Allowances 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
31 CFR 800.702 31 CFR (7-1-92 Edition)
31 CFR 800.702 List of CFR Sections Affected
31 CFR 800.702 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.
31 CFR 800.702 1986
31 CFR
51 FR
Page
Chapter II
203.15 (d)(10) added 46853
306 Authority citation revised 16174
306.3 (e) revised 16174
315.31 (a) revised; eff. 9-19-86 23753
Effective date corrected 28933
315.35 (e) revised; eff. 9-19-86 23753
Effective date corrected 28933
316.8 (b) introductory text, (1), and (2)(i) revised 39990
317.6 (b) Fee schedules 30212
317.8 Appendix amended 6401
321.23 (a) Fee schedules 30212
332.2 (e) revised 23753
Effective date corrected 28933
332.8 (b)(4) revised 39990
332.10 Revised 23753
Effective date corrected 28933
342.2a (b)(1) revised 39991
344 Revised; interim 47401
351.0 Amended 39991
351.2 (c) table and (h) amended; (e) introductory text and (1)
revised 39991
352.0 Amended 39991
352.2 (d) and (f) revised 23753
Effective date corrected 28933
(e)(1) through (4) redesignated as (e)(2) through (5); new (e)(1)
added; new (e)(2) revised 39991
353.35 (c) revised 23754
Effective date corrected 28933
357 Added 18265
357.22 (b)(2) corrected 18884
357.24 (c) corrected 18884
357.28 (c)(3)(ii)(C) and (d)(1) corrected 18884
357.31 (c)(3) corrected 18884
357 Appendix A added 18260
Appendix A corrected 18884
361.6 (a) amended 19751
390.5 Revised 39657
390.6 Added 39657
390.7 Added 39657
Chapter V
500 Authority extended by Memorandum of Aug. 20, 1986 30201
Specially designated nationals list 44460
505 Authority extended by Memorandum of Aug. 20, 1986 30201
515 Authority extended by Memorandum of Aug. 20, 1986 30201
Specially designated nationals list 44460
520 Authority extended by Memorandum of Aug. 20, 1986 30201
535.622 Added 37569
545 Authority citation revised 41907, 46854
Interpretation 41911
545.101 Revised 41907
545.201 Revised 41907
545.202 Revised 41907
545.203 Revised 41907
(e) added 46854
545.204 Revised 41907
545.205 -- 545.208 Added 41907
545.209 Added 46854
545.210 Added 46854
545.301 Revised 41907
545.302 Revised 41907
545.304 Revised 41908, 46854
545.306 Revised 41908
Amended 46854
545.307 Removed 46854
545.310 Revised 41908
545.311 Added 41908
Revised 46854
545.312 Added 41908
545.313 Added 41908
(c) revised 46854
545.314 -- 545.316 Added 41908
545.317 -- 545.319 Added 46854
545.320 Added 46855
545.321 Added 46855
545.402 Revised 41908
545.403 Revised 41908
545.404 Revised 41909, 46855
545.405 Removed 41909
545.406 Revised 41909, 46855
545.407 Revised 41909
545.408 Revised 41909, 46855
545.409 Revised 41909, 46855
545.410 Revised 41909, 46855
545.411 -- 545.414 Added 41909
545.415 -- 545.419 Added 46855
545.420 -- 545.424 Added 46856
545.501 Revised 41909
545.503 Revised 41909
545.504 Removed 41910
545.601 Revised 41910
545.602 Revised 41910
545.603 Added 46856
545.604 Added 46856
545.701 Revised 41910
545.801 (a) added 41910
545.805 Revised 41910
545.807 Added 41910
545.901 Added 28933
Revised 46856
550 Added 1354
Authority citation revised 2462
550.209 Revised 2462
550.210 Added 2462
550.301 Revised 2463
550.304 Revised 2463
550.313 -- 550.314 Added 2463
550.315 -- 550.320 Added 2464
550.404 (c) removed 2464
550.409 Revised; eff. 7-7-86 22803
(e) correctly revised 25635
550.412 -- 550.416 Added 2464
550.417 -- 550.421 Added 2465
550.511 -- 550.512 Added 2465
550.513 -- 550.516 Added 2466
550.560 Added (pending OMB approval) 19752
550.568 Added 2466
550.602 Amended 2467
550.605 Added 25634
(b)(1) and (2), (c)(3) introductory text and (i), and (e)(3)
corrected 26687
550.901 Revised 28933
550.901 (Subpart I) Added 22803
555 Added 41916
31 CFR 800.702 1987
31 CFR
52 FR
Page
Chapter II
210 Revised 2406
210.14 (a) introductory text corrected 3917
316 Updated tables 48422
342 Updated tables 48422
344 Average marginal tax rates 3115
351 Authority citation revised 46455
Updated tables 48422
351.5 (a) revised 46456
354 Authority citation revised 4495
354.0 (a) revised; interim 4495
354.2 (e) removed; interim 4495
358 Added; interim 41991
Chapter V
545 Interpretation and guidelines 7275
Interpretation 7855
545.203 (f) added 7274
545.211 Added 7273
545.425 Added 7274
545.426 Added 7274
545.427 Added; interim eff. to 7-1-87 7275
Interpretation 25576
545.808 Added 7855
545.901 Revised 7274
550.630 Added 35548
550.635 Added 35549
560 Added 44076
31 CFR 800.702 1988
31 CFR
53 FR
Page
Chapter II
235 Policy statement 3584
240 Policy statement 3584
245 Policy statement 3584
248 Policy statement 3584
306 Authority citation revised 15554
306.23 Added 15554
316 Updated tables 9617, 37523
321 Revised 37511
321.1 (f) and (j) corrected 39581
321.23 (b) corrected 39581
321 Appendix corrected 39581
330 Revised 37519
330.7 Corrected 39404
342 Updated tables 9617, 37523
351 Updated tables 9617, 37523
357.22 (a) introductory text amended 10074
358 Addition confirmed 19776
Chapter V
500 Specially designated nationals list 44397
500.563 Revised 7354
515 Specially designated nationals list 44398
Technical correction 48368
515.559 (c) revised 47527
515.560 (c) introductory text, (d) (1), (2), and (g) revised; (c)
(4) and (5) removed; (c)(6) redesignated as (c)(4); (i) and (k) added
47527
(d)(1) corrected 50491
515.563 (d) added 47529
515.701 (c) added 47530
515.901 Amended 47530
535.702 Added 7356
535.703 Added 7356
535.704 Added 7356
535.705 Added 7356
540.703 Added 7356
540.704 Added 7356
540.705 Added 7356
540.706 Added 7357
545.702 Added 7357
545.703 Added 7357
545.704 Added 7357
545.705 Added 7357
550.304 (a)(3) amended; (a)(4) and (b) added 5571
550.406 Revised 5572
550.703 Added 7357
550.704 Added 7357
550.705 Added 7358
550.706 Added 7358
560.901 (Subpart I) Added 37556
565 Added 20566
565.503 (b), (c), and (d) redesignated as (c), (d), and (e); new (b)
added; new (d) and (e) amended 23621
565.503 (d) and (e) revised 32222
565.504 Amended 23621
565.901 Added 37556
31 CFR 800.702 1989
31 CFR
54 FR
Page
Chapter II
203 Authority citation revised 8534
203.10 (b)(2)(ii) revised 8534
203.14 Revised 8534
210 Authority citation revised 20569
210.1 Revised 20569
210.2 Amended 20570
210.4 (c)(5) added 20570
210.6 (e) revised 20570
210.7 (d) revised 20570
210.8 Redesignated as 210.9; new 210.8 added 20570
210.9 Redesignated from 210.8, new 210.9 redesignated as 210.10 20570
210.10 Redesignated as 210.11 50618
210.11 (b) revised 20570
Redesignated as 210.12; new 210.11 redesignated from 210.10 50618
210.12 Redesignated as 210.13; new 210.12 redesignated from 210.11
50618
210.13 Redesignated as 210.14; new 210.13 redesignated from 210.12
50618
210.14 Redesignated as 210.15; new 210.14 redesignated from 210.13
50618
210.15 Redesignated from 210.14 50618
210.16 -- 210.18 (Subpart C) Added 20571
214 Authority citation revised 8534
214.6 (b) revised 8534
235 Heading and authority citation revised 35642
235.1 Amended 35642
235.3 Amended 35642
235.6 Revised 35642
240 Revised 35642
240.12 (a)(2)(ii) correctly revised 46728
245 Revised 35647
248 Authority citation revised 35647
248.1 Revised 35647
248.5 Amended 35648
315.31 Revised 40255
316 Updated tables revised 15925, 46053
Updated tables corrected 19486, 20476
Updated tables correctly republished 30633
317 Revised 40830
332.2 (e) revised 40255
342 Updated tables revised 15925, 46053
Updated tables corrected 19486, 20476
Updated tables correctly republished 30633
344 Revised 28754
351 Updated tables revised 15925, 46053
Updated tables corrected 19486, 20476
Updated tables correctly republished 30633
352 Revised 40249
353.31 Revised 40254
370 Added 38988
Chapter V
500 Specially designated nationals list 32064
500.206 Added 5231
500.307 Amended 5231
500.322 (a)(3) revised 5231
500.332 Added 5231
500.407 Amended 5231
500.505 (a)(1) and (2) redesignated as (a)(2) and (3); new (a)(1)
added 5232
500.523 (a)(4) and flush text following (a)(4) added; (b)(3) revised
5232
500.524 (a) revised; (d) added 5232
500.525 (b) amended 5232
500.536 Appendix removed 5232
500.550 Revised 5232
500.557 Revised 5232
500.562 Removed 5232
500.563 (a)(3) revised; (b) removed; (c), (d), and (e) redesignated
as (b), (c), and (d) 5232
500.568 Added 5232
500.569 Added 21
Correctly designated 11185
515 Specially designated nationals list 3447,
9431, 14215
Specially designated nationals list 38810,
45730, 49258
515.206 Added 5233
515.307 Amended 5233
515.322 (a)(3) revised 5233
515.332 Added 5233
515.407 Amended 5234
515.505 (a)(1) and (2) redesignated as (a)(2) and (3); new (a)(1)
added 5234
515.523 (a)(4) and flush text following (a)(4) added; (b)(3) revised
5234
515.524 (a) revised; (d) added 5234
515.525 (b) amended 5234
515.536 Appendix removed 5234
515.545 Revised 5234
515.546 Removed 5234
515.550 Removed 5234
515.551 (a)(3) amended 5234
515.552 Revised 5234
515.560 (c)(3) and (5) revised; (e) removed 5235
(i)(3) added 13881
(c)(2) revised 35326
515.563 (d)(7) added 13882
515.568 Added 5235
515.569 Added 35326
565.304 (a)(4) amended 36272
565.509 Added 22
565 Appendix A amended 13883
Appendix B added 36272
31 CFR 800.702 1990
31 CFR
55 FR
Page
Chapter II
215.2 (h)(1) and (i) revised 3590
(h)(1)(ii) and (i) corrected 7494
317 Authority citation revised 39960
317.6 (b) redesignated as (b)(1); (b)(2) added 39960
321 Authority citation revised 35395, 39960
321.1 (f) revised; (g) through (o) redesignated as (h) through (p)
and revised; new (g) and (q) added 35395
321.3 (a) revised 35395
321.7 (a) amended; (e) redesignated as (g) and revised; new (e) and
(f) added 35395
321.8 (b)(2) and (3) revised 35396
321.9 (e), (f), (h), and (i) revised 35396
321.10 (a) revised 35396
321.11 (d) and (e) redesignated as (e) and (f); new (e) revised;
(d) added 35396
321.23 (a)(3) added 39960
321 Appendix amended 35397
351 Revised 567
353.5 (c) revised 575
Chapter V
500.311 Amended 31179
500.563 (a)(2) amended 31179, 49997
500.566 (a)(1) amended 31179
500.569 Amended 31179
515 Specially designated nationals list 2644,
12173, 24556, 31179, 38326
515.560 (l) added 32076
535.441 Added 40831
540.599 Added 28614
545 Authority citation revised 10618
545.306 Amended 10618
545.312 Amended 10618
565.410 Added 3561
565.510 Added 3561
565.511 Added 3561
570 Added 49857
31 CFR 800.702 1991
31 CFR
56 FR
Page
Chapter II
211.1 (a) amended 56932
Chapter V
500.563 Heading revised; (c)(1) and (2) amended; (c)(3) added 65992
500.564 Amended 65993
500.565 (g) added 5351
Revised 20349
505 Authority citation revised 45895
505.10 Amended 45895
505.31 (a)(2) and (b) revised 45895
515.311 Amended 49847
515.560 (c)(1) revised; (c)(5) removed 49847
515.563 (a)(1) and (2) revised 49847
515.564 (a) introductory text and (1) revised; (c) added 49847
515.569 (d) and (e) redesignated as (e) and (f); new (d) added 49847
515.570 Added 13284
520 Authority citation revised 45895
520.101 (a)(3) removed; (a)(4) redesignated as (a)(3); (a)(1) and
new (3) revised 45895
535.217 (b) revised 40553
535.222 (g) revised 6546
535.568 (k) added 6546
545.599 Added 32056
550 Authority citation revised 20541
550.514 Removed 66338
550 Appendix A added 20541
Appendix A amended 37157
Appendix B added 37157
Appendix B amended 65994
560.409 Added 61373
560.513 Added 11100
560.514 Added 61374
570.205 Amended 5351
570.301 Amended 5352
570.408 (a) amended 5352
570.504 (a)(1) amended 5352
570.507 (a)(1) amended 5352
570.512 (b)(2) revised 5352
570.518 (a)(2)(ii) amended 5352
570.522 Added 10356
570.523 Added 12450
(b) revised 26035
570.603 Removed 26035
Correctly designated 29308
570.701 (b) and (c) redesignated as (c) and (d); new (b) added 5352
570.801 (b)(2) and (3) amended 5352
570.901 Added 5352
575 Added 2113
575.322 Added 5636
575.503 (i) removed 5636
575.507 (a)(1) amended 5636
575.604 Added 5637
575.605 Added 5637
575 Appendix A added 13585
Appendix B added 13587
Appendix A amended 29121, 48104
Chapter VIII
Chapter VIII Established 58780
800 Added 58780
31 CFR 800.702 1992
31 CFR
57 FR
Page
Chapter II
316 Revised 14276
332 Revised 14281
342 Revised 14282
351 Authority citation revised 14285
351.2 (b) revised 14285
351.3 (a) revised 14285
351.5 (a), (b) and (d) revised 14285
351.7 (a) revised 14285
352 Authority citation revised 14286
352.3 (a) and (b) revised 14286
Chapter V
500.563 (c)(4) added 28613
500.570 Added 1872
500.571 Added 17855
(a) revised; (b) redesignated as (c); new (b) added 28613
500.572 Added 20766
500.573 Added 20766
500.612 Added 9053
500.801 (b)(1) and (6) amended; (b)(2) and (3) revised; (c) added
1387
500.803 Amended 1387
500.808 (a)(6)(ii) and (c) amended 1387
500.809 Revised 1387
500.901 Amended (OMB number) 6297
Amended (OMB number) 9053
515.207 Added 15216
515.533 (b) redesignated as (c); new (b) added 15216
515.560 (k) revised 15216
515.801 (b)(1) amended; (b)(2) and (3) revised; (c) added 1388
515.803 Amended 1388
515.808 (a)(6)(iii) and (d) amended 1388
515.809 Revised 1388
515.901 Revised (OMB number) 6297
520 Authority citation revised 1388, 6297
520.801 (b)(1) amended; (b)(2) and (3) revised 1388
(c) added 1389
520.803 Amended 1389
520.809 Revised 1389
520.901 Amended (OMB number) 6297
530 Removed 1389
535.801 (b)(1) and (6) amended; (b)(2) and (3) revised; (c) added
1389
535.803 Amended 1389
535.807 Added 1389
535.905 Amended (OMB number) 6297
550.514 Technical correction 525
550.801 (b)(1) amended 1389
(b)(2) and (3) revised; (b)(6) amended; (c) added 1390
550.802 Amended 1390
550.806 Revised 1390
550.807 (a)(7)(iii) and (c) amended 1390
550 Appendix A amended 10799
Appendix A revised 29425
Appendix B revised 29427
555 Authority citation revised 10291
555.503 Added 10291
555.901 (Subpart I) Added 10291
560.801 (b)(1) and (6) amended; (b)(2) and (3) revised; (c) added
1390
560.802 Amended 1390
560.806 (b)(3) amended 1390
(d) amended 1391
560.807 Revised 1391
575.806 Revised 1391
575.901 Added (OMB number) 6297
580 Added 10821
580.211 Added 23955
580.405 Amended 23955
31
Money and Finance: Treasury
PART 200 to END
Revised as of July 1, 1992
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 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
31 CFR 800.702 Table of Contents
Page
Explanation v
Title 31:
Subtitle B -- Regulations Relating to Money and Finance (Continued):
Chapter II -- Fiscal Service, Department of the Treasury
Chapter IV -- Secret Service, Department of the Treasury
Chapter V -- Office of Foreign Assets Control, Department of the
Treasury
Chapter VI -- Bureau of Engraving and Printing, Department of the
Treasury
Chapter VII -- Federal Law Enforcement Training Center, Department of
the Treasury
Chapter VIII -- Office of International Investment, Department of the
Treasury
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
31 CFR 800.702 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, July 1, 1992), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-523-3517). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
July 1, 1992.
31 CFR 800.702 THIS TITLE
Title 31 -- Money and Finance: Treasury is composed of two volumes.
The parts in these volumes are arranged in the following order: parts 0
to 199, and part 200 to end. The contents of these volumes represent
all of the current regulations codified under this title of the CFR as
of July 1, 1992.
A redesignation table for subtitle A -- Office of the Secretary of
the Treasury appears in the Finding Aids section of the first volume.
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.
32 CFR 0.0 32 CFR Ch. I (7-1-92 Edition)
32 CFR 0.0 Office of the Secretary of Defense
32 CFR 0.0 Title 32 -- National Defense
32 CFR 0.0 (This book contains parts 1 to 189)
SUBTITLE A -- Department of Defense:
Part
chapter i -- Office of the Secretary of Defense 40
32 CFR 0.0 32 CFR Ch. I (7-1-92 Edition)
32 CFR 0.0 Office of the Secretary of Defense
32 CFR 0.0 Subtitle A -- Department
32 CFR 0.0 of Defense
32 CFR 0.0 32 CFR Ch. I (7-1-92 Edition)
32 CFR 0.0 Office of the Secretary of Defense
32 CFR 0.0 CHAPTER I -- OFFICE OF THE SECRETARY OF DEFENSE
32 CFR 0.0 (Parts 1 to 189)
Editorial Note: Cross reference to the Department of Defense Federal
Acquisition Regulations, see 48 CFR chapter 2.
32 CFR 0.0 SUBCHAPTER A -- (RESERVED)
Part
Page
1-20 (RESERVED)
32 CFR 0.0
32 CFR 0.0 SUBCHAPTER B -- DOD GRANTS REGULATIONS
25 Governmentwide debarment and suspension (nonprocurement) and
governmentwide requirements for drug-free workplace (grants)
28 New restrictions on lobbying
33 Uniform administrative requirements for grants and cooperative
agreements to State and local governments
32 CFR 0.0 SUBCHAPTER C -- PERSONNEL, MILITARY AND CIVILIAN
40 Standards of conduct
40a Defense contracting: reporting procedures on defense related
employment
40b Conduct on the Pentagon reservation
41 Enlisted administrative separations
42 Interception of wire and oral communications for law enforcement
purposes
43 Personal commercial solicitation on DoD installations
43a Indebtedness of military personnel
44 Screening the Ready Reserve
45 Certificate of release or discharge from active duty (DD Form
214/5 Series)
46 Federal voting assistance program
47 Active duty service for civilian or contractual groups
48 Retired serviceman's family protection plan
50 Fulfilling the military service obligation
51 The Department of Defense Military Equal Opportunity Program
53 Wearing of the uniform
54 Allotments for child and spousal support
55 Physical examinations and annual certificates of physical
condition
56 Nondiscrimination on the basis of handicap in programs and
activities assisted or conducted by the Department of Defense
57 Education of handicapped children in the DoD dependents schools
58 Human Immunodeficiency Virus (HIV-1)
59 Voluntary military pay allotments
60 Department of Defense Drug Abuse Testing Program
61 Medical malpractice claims against military and civilian personnel
of the Armed Forces
62 Alcohol and drug abuse by DoD personnel
62a Education and training in alcohol and drug abuse prevention
62b Drunk and drugged driving by DoD personnel
63 Former spouse payments from retired pay
64 Management and mobilization of regular and reserve retired
military members
65 Accession of chaplains for the military services
66 Release of information from medical records
67 Placement of reserve component units in local communities
68 Provision of free public education for eligible children pursuant
to section 6, Public Law 81-874
70 Discharge review board (DRB) procedures and standards
71 Eligibility requirements for education of minor dependents in
overseas areas
72 Voluntary education programs in overseas areas
73 Training simulators and devices
74 Appointment of doctors of osteopathy as medical officers
75 Conscientious objectors
76 Mobilization of the Ready Reserve
77 Mortgage insurance for servicemen to aid in construction or
purchase of homes
78 Voluntary State tax withholding from retired pay
79 Contributions to State retirement programs for National Guard
technicians
80 Child development programs
81 Paternity claims and adoption proceedings involving members and
former members of the Armed Forces
82 Military stand-by authorization for commercial air travel (DD Form
1580)
85 Health promotion
89 Civilian pay allotments
90 Collection of indebtedness due the United States
91 Policies governing participation of DoD components and personnel
in activities of private associations
92 Senior Reserve Officers Training Corps Program
93 Acceptance of service of process; release of official information
in litigation; and testimony by NSA personnel as witnesses
94 Naturalization of aliens serving in the Armed Forces of the United
States and of alien spouses and/or alien adopted children of military
and civilian personnel ordered overseas
95 Gifts from foreign governments
96 Acquisition and use of criminal history record information by the
military services
97 Release of official information in litigation and testimony by DoD
personnel as witnesses
98 Defense hotline program
98a Military whistleblower
99 Procedures for States and localities to request indemnification
100 Unsatisfactory performance of ready reserve obligation
101 Participation in Reserve training programs
102 Uniform Reserve, training and retirement categories
103 Enlistment, appointment, and assignment of individuals in Reserve
components
104 Voluntary private health insurance conversion program
105 Employment and volunteer work of spouses of military personnel
107 Personal services authority for direct health care providers
110 Standardized rates of subsistence allowance and commutation
instead of uniforms for members of the Senior Reserve Officers' Training
Corps
111 Reserve Officers' Training Corps program for secondary
educational institutions
114 Reserve components common personnel data system (RCCPDS)
115 Assignment to and transfer between Reserve categories, and
discharge from Reserve status
132 Initial active duty for training in Reserve components
138 Birth registration overseas
142 Copyrighted sound and video recordings
143 DoD policy on organizations that seek to represent or organize
members of the Armed Forces in negotiation or collective bargaining
144 Service by members of the Armed Forces on State and local juries
145 Cooperation with the Office of Special Counsel of the Merit
Systems Protection Board
146 Compliance of DoD members, employees, and family members outside
the United States with court orders
32 CFR 0.0 SUBCHAPTER D -- REGULATIONS PERTAINING TO MILITARY JUSTICE
150 Courts of military review rules of practice and procedure
151 Status of forces policies and information
152 Review of the manual for courts-martial
32 CFR 0.0 SUBCHAPTER E -- SECURITY
154 Department of Defense personnel security program regulation
155 Defense industrial personnel security clearance program
156 DoD personnel security program
157 Dissemination of DoD technical information
158 Guidelines for systematic declassification review of classified
information in permanently valuable DoD records
159 DoD information security program
159a Information security program regulation
32 CFR 0.0 SUBCHAPTER F -- DEFENSE CONTRACTING
160 Defense acquisition regulatory system
162 Productivity Enhancing Capital Investment (PECI)
163 (Reserved)
168a National defense science and engineering graduate fellowships
169 Commercial activities program
169a Commercial activities program procedures
172 Disposition of proceeds from DoD sales of surplus personal
property
173 Competitive information certificate and profit reduction clause
32 CFR 0.0 SUBCHAPTER G -- TRANSPORTATION
174 (Reserved)
177 Emergency requirements, allocations, priorities, and permits for
DoD use of domestic civil transportation
179 Use of contractor and DoD resources for maintenance of materiel
32 CFR 0.0 SUBCHAPTER H -- CIVIL DEFENSE
185 Military support of civil defense
186 The DoD Explosives Safety Board
32 CFR 0.0 SUBCHAPTERS I-K -- (RESERVED)
32 CFR 0.0 SUBCHAPTER L -- ENVIRONMENT
187 Environmental effects abroad of major Department of Defense
actions
188 Environmental effects in the United States of DoD actions
189 Mineral exploration and extraction on DoD lands
32 CFR 0.0 32 CFR Ch. I (7-1-92 Edition)
32 CFR 0.0 Office of the Secretary of Defense
32 CFR 0.0 SUBCHAPTER A -- (RESERVED)
32 CFR 0.0 SUBCHAPTER B -- DOD GRANTS REGULATIONS
32 CFR 0.0 PART 25 -- GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
32 CFR 0.0 Subpart A -- General
Sec.
25.100 Purpose.
25.105 Definitions.
25.110 Coverage.
25.115 Policy.
32 CFR 0.0 Subpart B -- Effect of Action
25.200 Debarment or suspension.
25.205 Ineligible persons.
25.210 Voluntary exclusion.
25.215 Exception provision.
25.220 Continuation of covered transactions.
25.225 Failure to adhere to restrictions.
32 CFR 0.0 Subpart C -- Debarment
25.300 General.
25.305 Causes for debarment.
25.310 Procedures.
25.311 Investigation and referral.
25.312 Notice of proposed debarment.
25.313 Opportunity to contest proposed debarment.
25.314 Debarring official's decision.
25.315 Settlement and voluntary exclusion.
25.320 Period of debarment.
25.325 Scope of debarment.
32 CFR 0.0 Subpart D -- Suspension
25.400 General.
25.405 Causes for suspension.
25.410 Procedures.
25.411 Notice of suspension.
25.412 Opportunity to contest suspension.
25.413 Suspending official's decision.
25.415 Period of suspension.
25.420 Scope of suspension.
32 CFR 0.0 Subpart E -- Responsibilities of GSA, Military Departments
and Defense Agencies and Participants
25.500 GSA responsibilities.
25.505 Military Departments and Defense Agencies' responsibility.
25.510 Participants' responsibilities.
32 CFR 0.0 Subpart F -- Drug-Free Workplace Requirements (Grants)
25.600 Purpose.
25.605 Definitions.
25.610 Coverage.
25.615 Grounds for suspension of payments, suspension or termination
of grants, or suspension or debarment.
25.620 Effect of violation.
25.625 Exception provision.
25.630 Certification requirements and procedures.
25.635 Reporting of and employee sanctions for convictions of
criminal drug offenses.
Appendix A to Part 25 -- Certification Regarding Debarment,
Suspension, and Other Responsibility Matters -- Primary Covered
Transactions
Appendix B to Part 25 -- Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion -- Lower Tier Covered
Transactions
Appendix C to Part 25 -- Certification Regarding Drug-Free Workplace
Requirements
Authority: E.O. 12549; sec. 5151-5160 of the Drug-Free Workplace
Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701 et
seq.)
Source: 53 FR 19190 and 19204, May 26, 1988, unless otherwise noted.
Redesignated at 57 FR 6199, Feb. 21, 1992.
Cross Reference: See also Office of Management and Budget notice
published at 55 FR 21697, May 25, 1990.
32 CFR 0.0 Subpart A -- General
32 CFR 25.100 Purpose.
(a) Executive Order 12549 provides that, to the extent permitted by
law, Executive departments and agencies shall participate in a
governmentwide system for nonprocurement debarment and suspension. A
person who is debarred or suspended shall be excluded from Federal
financial and nonfinancial assistance and benefits under Federal
programs and activities. Debarment or suspension of a participant in a
program by one agency shall have governmentwide effect.
(b) These regulations implement section 3 of Executive Order 12549
and the guidelines promulgated by the Office of Management and Budget
under section 6 of the Executive Order by:
(1) Prescribing the programs and activities that are covered by the
governmentwide system;
(2) Prescribing the governmentwide criteria and governmentwide
minimum due process procedures that each agency shall use;
(3) Providing for the listing of debarred and suspended participants,
participants declared ineligible (see definition of ''ineligible'' in
25.105(i)), and participants who have voluntarily excluded themselves
from participation in covered transactions
(4) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion; and
(5) Offering such other guidance as necessary for the effective
implementation and administration of the governmentwide system.
(c) Although these regulations cover the listing of ineligible
participants and the effect of such listing, they do not prescribe
policies and procedures governing declarations of ineligibility.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199, Feb. 21, 1992)
32 CFR 25.105 Definitions.
(a) Adequate evidence. Information sufficient to support the
reasonable belief that a particular act or omission has occurred.
(b) Affiliate. Persons are affiliates of each another if, directly
or indirectly, either one controls or has the power to control the
other, or, a third person controls or has the power to control both.
Indicia of control include, but are not limited to: interlocking
management or ownership, identity of interests among family members,
shared facilities and equipment, common use of employees, or a business
entity organized following the suspension or debarment of a person which
has the same or similar management, ownership, or principal employees as
the suspended, debarred, ineligible, or voluntarily excluded person.
(c) Agency. Any executive department, military department or defense
agency or other agency of the executive branch, excluding the
independent regulatory agencies.
(d) Civil judgment. The disposition of a civil action by any court
of competent jurisdiction, whether entered by verdict, decision,
settlement, stipulation, or otherwise creating a civil liability for the
wrongful acts complained of; or a final determination of liability
under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
(e) Conviction. A judgment of conviction of a criminal offense by
any court of competent jurisdiction, whether entered upon a verdict or a
plea, including a plea of nolo contendere.
(f) Debarment. An action taken by a debarring official in accordance
with these regulations to exclude a person from participating in covered
transactions. A person so excluded is ''debarred.''
(g) Debarring official. An official authorized to impose debarment.
The debarring official is either:
(1) The agency head, or
(2) An official designated by the agency head.
(h) Indictment. Indictment for a criminal offense. An information
or other filing by competent authority charging a criminal offense shall
be given the same effect as an indictment.
(i) Ineligible. Excluded from participation in Federal
nonprocurement programs pursuant to a determination of ineligibility
under statutory, executive order, or regulatory authority, other than
Executive Order 12549 and its agency implementing regulations; for
exemple, excluded pursuant to the Davis-Bacon Act and its implementing
regulations, the equal employment opportunity acts and executive orders,
or the environmental protection acts and executive orders. A person is
ineligible where the determination of ineligibility affects such
person's eligibility to participate in more than one covered
transaction.
(j) Legal proceedings. Any criminal proceeding or any civil judicial
proceeding to which the Federal Government or a State of local
government or quasi-governmental authority is a party. The term
includes appeals from such proceedings.
(k) Nonprocurement List. The portion of the List of Parties Excluded
from Federal Procurement or Nonprocurement Programs complied, maintained
and distributed by the General Services Administration (GSA) containing
the names and other information about persons who have been debarred,
suspended, or voluntarily excluded under Executive Order 12549 and these
regulations, and those who have been determined to be ineligible.
(l) Notice. A written communication served in person or sent by
certified mail, return receipt requested, or its equivalent, to the last
known address of a party, its identified counsel, its agent for service
of process, or any partner, officer, director, owner, or joint venturer
of the party. Notice, if undeliverable, shall be considered to have
been received by the addressee five days after being properly sent to
the last address known by the agency.
(m) Participant. Any person who submits a proposal for, enters into,
or reasonably may be expected to enter into a covered transaction. This
term also includes any person who acts on behalf of or is authorized to
commit a participant in a covered transaction as an agent or
representative of another participant.
(n) Person. Any individual, corporation, partnership, association,
unit of government or legal entity, however organized, except: foreign
governments or foreign governmental entities, public international
organizations, foreign government owned (in whole or in part) or
controlled entities, and entities consisting wholly or partially of
foreign governments or foreign governmental entities.
(o) Preponderance of the evidence. Proof by information that,
compared with that opposing it, leads to the conclusion that the fact at
issue is more probably true than not.
(p) Principal. Officer, director, owner, partner, key employee, or
other person within a participant with primary management or supervisory
responsibilities; or a person who has a critical influence on or
substantive control over a covered transaction, whether or not employed
by the participant. Persons who have a critical influence on or
substantive control over a covered transaction are:
(1) Principal investigators.
(q) Proposal. A solicited or unsolicited bid, application, request,
invitation to consider or similar communication by or on behalf of a
person seeking to participate or to receive a benefit, directly or
indirectly, in or under a covered transaction.
(r) Respondent. A person against whom a debarment or suspension
action has been initiated.
(s) State. Any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession
of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the
State government if it has a written determination from a State
government that such State considers that instrumentality to be an
agency of the State government.
(t) Suspending official. An official authorized to impose
suspension. The suspending official is either:
(1) The agency head, or
(2) An official designated by the agency head.
(u) Suspension. An action taken by a suspending official in
accordance with these regulations that immediately excludes a person
from participating in covered transactions for a temporary period,
pending completion of an investigation and such legal, debarment, or
Program Fraud Civil Remedies Act proceedings as may ensue. A person so
excluded is ''suspended.''
(v) Voluntary exclusion or voluntarily excluded. A status of
nonparticipation or limited participation in covered transactions
assumed by a person pursuant to the terms of a settlement.
32 CFR 25.110 Coverage.
(a) These regulations apply to all persons who have participated, are
currently participating or may reasonably be expected to participate in
transactions under Federal nonprocurement programs. For purposes of
these regulations such transactions will be referred to as ''covered
transactions.''
(1) Covered transaction. For purposes of these regulations, a
covered transaction is a primary covered transaction or a lower tier
covered transaction. Covered transactions at any tier need not involve
the transfer of Federal funds.
(i) Primary covered transaction. Except as noted in paragraph (a)(2)
of this section, a primary covered transaction is any nonprocurement
transaction between an agency and a person, regardless of type,
including: grants, cooperative agreements, scholarships, fellowships,
contracts of assistance, loans, loan guarantees, subsidies, insurance,
payments for specified use, donation agreements and any other
nonprocurement transactions between a Federal agency and a person.
Primary covered transactions also include those transactions specially
designated by the U.S. Department of Housing and Urban Development in
such agency's regulations governing debarment and suspension.
(ii) Lower tier covered transaction. A lower tier covered
transaction is:
(A) Any transaction between a participant and a person other than a
procurement contract for goods or services, regardless of type, under a
primary covered transaction.
(B) Any procurement contract for goods or services between a
participant and a person, regardless of type, expected to equal or
exceed the Federal procurement small purchase threshold fixed at 10
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary
covered transaction.
(C) Any procurement contract for goods or services between a
participant and a person under a covered transaction, regardless of
amount, under which that person will have a critical influence on or
substantive control over that covered transaction. Such persons are:
(1) Principal investigators.
(2) Providers of federally-required audit services.
(2) Exceptions. The following transactions are not covered:
(i) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(ii) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, entities
consisting wholly or partially of foreign governments or foreign
governmental entities;
(iii) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(iv) Federal employment;
(v) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(vi) Incidental benefits derived from ordinary governmental
operations; and
(vii) Other transactions where the application of these regulations
would be prohibited by law.
(b) Relationship to other sections. This section describes the types
of transactions to which a debarment or suspension under the regulations
will apply. Subpart B, ''Effect of Action,'' 25.200, ''Debarment or
suspension,'' sets forth the consequences of a debarment or suspension.
Those consequences would obtain only with respect to participants and
principals in the covered transactions and activities described in
25.110(a). Sections 25.325, ''Scope of debarment,'' and 25.420, ''Scope
of suspension,'' govern the extent to which a specific participant or
organizational elements of a participant would be automatically included
within a debarment or suspension action, and the conditions under which
affiliates or persons associated with a participant may also be brought
within the scope of the action.
(c) Relationship to Federal procurement activities. Debarment and
suspension of Federal procurement contractors and subcontractors under
Federal procurement contracts are covered by the Federal Acquisition
Regulation (FAR), 48 CFR Subpart 9.4.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199, Feb. 21, 1992)
32 CFR 25.115 Policy.
(a) In order to protect the public interest, it is the policy of the
Federal Government to conduct business only with responsible persons.
Debarment and suspension are discretionary actions that, taken in
accordance with Executive Order 12549 and these regulations, are
appropriate means to implement this policy.
(b) Debarment and suspension are serious actions which shall be used
only in the public interest and for the Federal Government's protection
and not for purposes of punishment. Agencies may impose debarment or
suspension for the causes and in accordance with the procedures set
forth in these regulations.
(c) When more than one agency has an interest in the proposed
debarment or suspension of a person, consideration shall be given to
designating one agency as the lead agency for making the decision.
Agencies are encouraged to establish methods and procedures for
coordinating their debarment or suspension actions.
32 CFR 25.115 Subpart B -- Effect of Action
32 CFR 25.200 Debarment or suspension.
(a) Primary covered transactions. Except to the extent prohibited by
law, persons who are debarred or suspended shall be excluded from
primary covered transactions as either participants or principals
throughout the executive branch of the Federal Government for the period
of their debarment or suspension. Accordingly, no agency shall enter
into primary covered transactions with such debarred or suspended
persons during such period, except as permitted pursuant to 25.215.
(b) Loser tier covered transactions. Except to the extent prohibited
by law, persons who have been debarred or suspended shall be excluded
from participating as either participants or principals in all lower
tier covered transactions (see 25.110(a)(1)(ii)) for the period of
their debarment or suspension.
(c) Exceptions. Debarment or suspension does not affect a person's
eligibility for:
(1) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(2) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, and
entities consisting wholly or partially of foreign governments or
foreign governmental entities;
(3) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(4) Federal employment;
(5) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(6) Incidental benefits derived from ordinary governmental
operations; and
(7) Other transactions where the application of these regulations
would be prohibited by law.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199, Feb. 21, 1992)
32 CFR 25.205 Ineligible persons.
Persons who are ineligible, as defined in 25.105(i), are excluded in
accordance with the applicable statutory, executive order, or regulatory
authority.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6200, Feb. 21, 1992)
32 CFR 25.210 Voluntary exclusion.
Persons who accept voluntary exclusions under 25.315 are excluded in
accordance with the terms of their settlements. Military Departments
and Defense Agencies shall, and participants may, contact the original
action agency to ascertain the extent of the exclusion.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.215 Exception provision.
Military Departments and Defense Agencies may grant an exception
permitting a debarred, suspended, or voluntarily excluded person to
participate in a particular covered transaction upon a written
determination by the agency head or an authorized designee stating the
reason(s) for deviating from the Presidential policy established by
Executive Order 12549 and 25.200 of this rule. However, in accordance
with the President's stated intention in the Executive Order, exceptions
shall be granted only infrequently. Exceptions shall be reported in
accordance with 25.505(a).
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.220 Continuation of covered transactions.
(a) Notwithstanding the debarment, suspension, determination of
ineligibility, or voluntary exclusion of any person by an agency,
agencies and participants may continue covered transactions in existence
at the time the person was debarred, suspended, declared ineligible, or
voluntarily excluded. A decision as to the type of termination action,
if any, to be taken should be made only after thorough review to ensure
the propriety of the proposed action.
(b) Agencies and participants shall not renew or extend covered
transactions (other than no-cost time extensions) with any person who is
debarred, suspended, ineligible, or voluntarily excluded, except as
provided in 25.215.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.225 Failure to adhere to restrictions.
Except as permitted under 25.215 or 25.220 of these regulations, a
participant shall not knowingly do business under a covered transaction
with a person who is debarred or suspended, or with a person who is
ineligible for or voluntarily excluded from that covered transaction.
Violation of this restriction may result in disallowance of costs,
annulment or termination of award, issuance of a stop work order,
debarment or suspension, or other remedies, as appropriate. A
participant may rely upon the certification of a prospective participant
in a lower tier covered transaction that it and its principals are not
debarred, suspended, ineligible, or voluntarily excluded from the
covered transaction (see Appendix B), unless it knows that the
certification is erroneous. An agency has the burden of proof that such
participant did knowingly do business with such a person.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.225 Subpart C -- Debarment
32 CFR 25.300 General.
The debarring official may debar a person for any of the causes in
25.305, using procedures established in 25.310 through 25.314. The
existence of a cause for debarment, however, does not necessarily
require that the person be debarred; the seriousness of the person's
acts or omissions and any mitigating factors shall be considered in
making any debarment decision.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.305 Causes for debarment.
Debarment may be imposed in accordance with the provisions of
25.300 through 25.314 for:
(a) Conviction of or civil judgment for:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including those
proscribing price fixing between competitors, allocation of customers
between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, or obstruction of
justice; or
(4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present responsibility of a person.
(b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as:
(1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction.
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, the effective date of these regulations, or a
procurement debarment by any Federal agency taken pursuant to 48 CFR
Subpart 9.4;
(2) Knowingly doing business with a debarred, suspended, ineligible,
or voluntarily excluded person, in connection with a covered
transaction, except as permitted in 25.215 or 25.220;
(3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion
agreement entered into under 25.315 or of any settlement of a debarment
or suspension action; or
(5) Violation of any requirement of subpart F of this part, relating
to providing a drug-free workplace, as set forth in 25.615 of this
part.
(d) Any other cause of so serious or compelling a nature that it
affects the present responsibility of a person.
(53 FR 19190 and 19204, May 26, 1988, as amended at 54 FR 4950, 4960,
Jan. 31, 1989. Redesignated and amended at 57 FR 6199 and 6200, Feb. 21,
1992)
32 CFR 25.310 Procedures.
Military Departments and Defense Agencies shall process debarment
actions as informally as practicable, consistent with the principles of
fundamental fairness, using the procedures in 25.311 through 25.314.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.311 Investigation and referral.
Information concerning the existence of a cause for debarment from
any source shall be promptly reported, investigated, and referred, when
appropriate, to the debarring official for consideration. After
consideration, the debarring official may issue a notice of proposed
debarment.
32 CFR 25.312 Notice of proposed debarment.
A debarment proceeding shall be initiated by notice to the respondent
advising:
(a) That debarment is being considered;
(b) Of the reasons for the proposed debarment in terms sufficient to
put the respondent on notice of the conduct or transaction(s) upon which
it is based;
(c) Of the cause(s) relied upon under 25.305 for proposing
debarment;
(d) Of the provisions of 25.311 through 25.314, and any other
Military Departments and Defense Agencies procedures, if applicable,
governing debarment decisionmaking; and
(e) Of the potential effect of a debarment.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.313 Opportunity to contest proposed debarment.
(a) Submission in opposition. Within 30 days after receipt of the
notice of proposed debarment, the respondent may submit, in person, in
writing, or through a representative, information and argument in
opposition to the proposed debarment.
(b) Additional proceedings as to disputed material facts. (1) In
actions not based upon a conviction or civil judgment, if the debarring
official finds that the respondent's submission in opposition raises a
genuine dispute over facts material to the proposed debarment,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents.
(2) A transcribed record of any additional proceedings shall be made
available at cost to the respondent, upon request, unless the respondent
and the agency, by mutual agreement, waive the requirement for a
transcript.
32 CFR 25.314 Debarring official's decision.
(a) No additional proceedings necessary. In actions based upon a
conviction or civil judgment, or in which there is no genuine dispute
over material facts, the debarring official shall make a decision on the
basis of all the information in the administrative record, including any
submission made by the respondent. The decision shall be made within 45
days after receipt of any information and argument submitted by the
respondent, unless the debarring official extends this period for good
cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The debarring
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may
reject any such findings, in whole or in part, only after specifically
determining them to be arbitrary and capricious or clearly erroneous.
(3) The debarring official's decision shall be made after the
conclusion of the proceedings with respect to disputed facts.
(c) (1) Standard of proof. In any debarment action, the cause for
debarment must be established by a preponderance of the evidence. Where
the proposed debarment is based upon a conviction or civil judgment, the
standard shall be deemed to have been met.
(2) Burden of proof. The burden of proof is on the agency proposing
debarment.
(d) Notice of debarring official's decision. (1) If the debarring
official decides to impose debarment, the respondent shall be given
prompt notice:
(i) Referring to the notice of proposed debarment;
(ii) Specifying the reasons for debarment;
(iii) Stating the period of debarment, including effective dates;
and
(iv) Advising that the debarment is effective for covered
transactions throughout the executive branch of the Federal Government
unless an agency head or an authorized designee makes the determination
referred to in 25.215.
(2) If the debarring official decides not to impose debarment, the
respondent shall be given prompt notice of that decision. A decision
not to impose debarment shall be without prejudice to a subsequent
imposition of debarment by any other agency.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.315 Settlement and voluntary exclusion.
(a) When in the best interest of the Government, Military Departments
and Defense Agencies may, at any time, settle a debarment or suspension
action.
(b) If a participant and the agency agree to a voluntary exclusion of
the participant, such voluntary exclusion shall be entered on the
Nonprocurement List (see subpart E).
32 CFR 25.320 Period of debarment.
(a) Debarment shall be for a period commensurate with the seriousness
of the cause(s). If a suspension precedes a debarment, the suspension
period shall be considered in determining the debarment period.
(1) Debarment for causes other than those related to a violation of
the requirements of subpart F of this part generally should not exceed
three years. Where circumstances warrant, a longer period of debarment
may be imposed.
(2) In the case of a debarment for a violation of the requirements of
subpart F of this part (see 25.305(c)(5)), the period of debarment
shall not exceed five years.
(b) The debarring official may extend an existing debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest. However, a debarment may not
be extended solely on the basis of the facts and circumstances upon
which the initial debarment action was based. If debarment for an
additional period is determined to be necessary, the procedures of
25.311 through 25.314 shall be followed to extend the debarment.
(c) The respondent may request the debarring official to reverse the
debarment decision or to reduce the period or scope of debarment. Such
a request shall be in writing and supported by documentation. The
debarring official may grant such a request for reasons including, but
not limited to:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the debarment was imposed;
or
(5) Other reasons the debarring official deems appropriate.
(53 FR 19190 and 19204, May 26, 1988, as amended at 54 FR 4950, 4960,
Jan. 31, 1989. Redesignated and amended at 57 FR 6199 and 6200, Feb. 21,
1992)
32 CFR 25.325 Scope of debarment.
(a) Scope in general. (1) Debarment of a person under these
regulations constitutes debarment of all its divisions and other
organizational elements from all covered transactions, unless the
debarment decision is limited by its terms to one or more specifically
identified individuals, divisions or other organizational elements or to
specific types of transactions.
(2) The debarment action may include any affiliate of the participant
that is specifically named and given notice of the proposed debarment
and an opportunity to respond (see 25.311 through 25.314).
(b) Imputing conduct. For purposes of determining the scope of
debarment, conduct may be imputed as follows:
(1) Conduct imputed to participant. The fraudulent, criminal or
other seriously improper conduct of any officer, director, shareholder,
partner, employee, or other individual associated with a participant may
be imputed to the participant when the conduct occurred in connection
with the individual's performance of duties for or on behalf of the
participant, or with the participant's knowledge, approval, or
acquiescence. The participant's acceptance of the benefits derived from
the conduct shall be evidence of such knowledge, approval, or
acquiescence.
(2) Conduct imputed to individuals associated with participant. The
fraudulent, criminal, or other seriously improper conduct of a
participant may be imputed to any officer, director, shareholder,
partner, employee, or other individual associated with the participant
who participated in, knew of, or had reason to know of the participant's
conduct.
(3) Conduct of one participant imputed to other participants in a
joint venture. The fraudulent, criminal, or other seriously improper
conduct of one participant in a joint venture, grant pursuant to a joint
application, or similar arrangement may be imputed to other participants
if the conduct occurred for or on behalf of the joint venture, grant
pursuant to a joint application, or similar arrangement may be imputed
to other participants if the conduct occurred for or on behalf of the
joint venture, grant pursuant to a joint application, or similar
arrangement or with the knowledge, approval, or acquiescence of these
participants. Acceptance of the benefits derived from the conduct shall
be evidence of such knowledge, approval, or acquiescence.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.325 Subpart D -- Suspension
32 CFR 25.400 General.
(a) The suspending official may suspend a person for any of the
causes in 25.405 using procedures established in 25.410 through
25.413.
(b) Suspension is a serious action to be imposed only when:
(1) There exists adequate evidence of one or more of the causes set
out in 25.405, and
(2) Immediate action is necessary to protect the public interest.
(c) In assessing the adequacy of the evidence, the agency should
consider how much information is available, how credible it is given the
circumstances, whether or not important allegations are corroborated,
and what inferences can reasonably be drawn as a result. This
assessment should include an examination of basic documents such as
grants, cooperative agreements, loan authorizations, and contracts.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.405 Causes for suspension.
(a) Suspension may be imposed in accordance with the provisions of
25.400 through 25.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in 25.305(a); or
(2) That a cause for debarment under 25.305 may exist.
(b) Indictment shall constitute adequate evidence for purposes of
suspension actions.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.410 Procedures.
(a) Investigation and referral. Information concerning the existence
of a cause for suspension from any source shall be promptly reported,
investigated, and referred, when appropriate, to the suspending official
for consideration. After consideration, the suspending official may
issue a notice of suspension.
(b) Decisionmaking process. Military Departments and Defense
Agencies shall process suspension actions as informally as practicable,
consistent with principles of fundamental fairness, using the procedures
in 25.411 through 25.413.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.411 Notice of suspension.
When a respondent is suspended, notice shall immediately be given:
(a) That suspension has been imposed;
(b) That the suspension is based on an indictment, conviction, or
other adequate evidence that the respondent has committed irregularities
seriously reflecting on the propriety of further Federal Government
dealings with the respondent;
(c) Describing any such irregularities in terms sufficient to put the
respondent on notice without disclosing the Federal Government's
evidence;
(d) Of the cause(s) relied upon under 25.405 for imposing
suspension;
(e) That the suspension is for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings;
(f) Of the provisions of 25.411 through 25.413 and any other
Military Departments and Defense Agencies procedures, if applicable,
governing suspension decisionmaking; and
(g) Of the effect of the suspension.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.412 Opportunity to contest suspension.
(a) Submission in opposition. Within 30 days after receipt of the
notice of suspension, the respondent may submit, in person, in writing,
or through a representative, information and argument in opposition to
the suspension.
(b) Additional proceedings as to disputed material facts. (1) If the
suspending official finds that the respondent's submission in opposition
raises a genuine dispute over facts material to the suspension,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents, unless:
(i) The action is based on an indictment, conviction or civil
judgment, or
(ii) A determination is made, on the basis of Department of Justice
advice, that the substantial interests of the Federal Government in
pending or contemplated legal proceedings based on the same facts as the
suspension would be prejudiced.
(2) A transcribed record of any additional proceedings shall be
prepared and made available at cost to the respondent, upon request,
unless the respondent and the agency, by mutual agreement, waive the
requirement for a transcript.
32 CFR 25.413 Suspending official's decision.
The suspending official may modify or terminate the suspension (for
example, see 25.320(c) for reasons for reducing the period or scope of
debarment) or may leave it in force. However, a decision to modify or
terminate the suspension shall be without prejudice to the subsequent
imposition of suspension by any other agency or debarment by any agency.
The decision shall be rendered in accordance with the following
provisions:
(a) No additional proceedings necessary. In actions: based on an
indictment, conviction, or civil judgment; in which there is no genuine
dispute over material facts; or in which additional proceedings to
determine disputed material facts have been denied on the basis of
Department of Justice advice, the suspending official shall make a
decision on the basis of all the information in the administrative
record, including any submission made by the respondent. The decision
shall be made within 45 days after receipt of any information and
argument submitted by the respondent, unless the suspending official
extends this period for good cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The suspending
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The suspending official may refer matters involving disputed
material facts to another official for findings of fact. The suspending
official may reject any such findings, in whole or in part, only after
specifically determining them to be arbitrary or capricious or clearly
erroneous.
(c) Notice of suspending official's decision. Prompt written notice
of the suspending official's decision shall be sent to the respondent.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.415 Period of suspension.
(a) Suspension shall be for a temporary period pending the completion
of an investigation or ensuing legal, debarment, or Program Fraud Civil
Remedies Act proceedings, unless terminated sooner by the suspending
official or as provided in paragraph (b) of this section.
(b) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless an Assistant Attorney General or United States
Attorney requests its extension in writing, in which case it may be
extended for an additional six months. In no event may a suspension
extend beyond 18 months, unless such proceedings have been initiated
within that period.
(c) The suspending official shall notify the Department of Justice of
an impending termination of a suspension, at least 30 days before the
12-month period expires, to give that Department an opportunity to
request an extension.
32 CFR 25.420 Scope of suspension.
The scope of a suspension is the same as the scope of a debarment
(see 25.325), except that the procedures of 25.410 through 25.413
shall be used in imposing a suspension.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.420 Subpart E -- Responsibilities of GSA, Agency and Participants
32 CFR 25.500 GSA responsibilities.
(a) In accordance with the OMB guidelines, GSA shall compile,
maintain, and distribute a list of all persons who have been debarred,
suspended, or voluntarily excluded by agencies under Executive Order
12549 and these regulations, and those who have been determined to be
ineligible.
(b) At a minimum, this list shall indicate:
(1) The names and addresses of all debarred, suspended, ineligible,
and voluntarily excluded persons, in alphabetical order, with
cross-references when more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for each listing; and
(6) The agency and name and telephone number of the agency point of
contact for the action.
32 CFR 25.505 Military Departments and Defense Agencies'
responsibilities.
(a) The agency shall provide GSA with current information concerning
debarments, suspension, determinations of ineligibility, and voluntary
exclusions it has taken. Until February 18, 1989, the agency shall also
provide GSA and OMB with information concerning all transactions in
which Military Departments and Defense Agencies has granted exceptions
under 25.215 permitting participation by debarred, suspended, or
voluntarily excluded persons.
(b) Unless an alternative schedule is agreed to by GSA, the agency
shall advise GSA of the information set forth in 25.500(b) and of the
exceptions granted under 25.215 within five working days after taking
such actions.
(c) The agency shall direct inquiries concerning listed persons to
the agency that took the action.
(d) Agency officials shall check the Nonprocurement List before
entering covered transactions to determine whether a participant in a
primary transaction is debarred, suspended, ineligible, or voluntarily
excluded (Tel. ).
(e) Agency officials shall check the Nonprocurement List before
approving principals or lower tier participants where agency approval of
the principal or lower tier participant is required under the terms of
the transaction, to determine whether such principals or participants
are debarred, suspended, ineligible, or voluntarily excluded.
(53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.510 Participants' responsibilities.
(a) Certification by participants in primary covered transactions.
Each participant shall submit the certification in Appendix A to this
Part for it and its principals at the time the participant submits its
proposal in connection with a primary covered transaction, except that
States need only complete such certification as to their principals.
Participants may decide the method and frequency by which they determine
the eligibility of their principals. In addition, each participant may,
but is not required to, check the Nonprocurement List for its principals
(Tel. ). Adverse information on the certification will not necessarily
result in denial of participation. However, the certification, and any
additional information pertaining to the certification submitted by the
participant, shall be considered in the administration of covered
transactions.
(b) Certification by participants in lower tier covered transactions.
(1) Each participant shall require participants in lower tier covered
transactions to include the certification in Appendix B to this Part for
it and its principals in any proposal submitted in connection with such
lower tier covered transactions.
(2) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction by any Federal agency, unless it
knows that the certification is erroneous. Participants may decide the
method and frequency by which they determine the eligiblity of their
principals. In addition, a participant may, but is not required to,
check the Nonprocurement List for its principals and for participants
(Tel. ).
(c) Changed circumstances regarding certification. A participant
shall provide immediate written notice to Military Departments and
Defense Agencies if at any time the participant learns that its
certification was erroneous when submitted or has become erroneous by
reason of changed circumstances. Participants in lower tier covered
transactions shall provide the same updated notice to the participant to
which it submitted its proposals.
32 CFR 25.510 Subpart F -- Drug-Free Workplace Requirements (Grants)
Source: 55 FR 21688, 21697, May 25, 1990, unless otherwise noted.
Redesignated at 57 FR 6199, Feb. 21, 1992.
32 CFR 25.600 Purpose.
(a) The purpose of this subpart is to carry out the Drug-Free
Workplace Act of 1988 by requiring that --
(1) A grantee, other than an individual, shall certify to the agency
that it will provide a drug-free workplace;
(2) A grantee who is an individual shall certify to the agency that,
as a condition of the grant, he or she will not engage in the unlawful
manufacture, distribution, dispensing, possession or use of a controlled
substance in conducting any activity with the grant.
(b) Requirements implementing the Drug-Free Workplace Act of 1988 for
contractors with the agency are found at 48 CFR subparts 9.4, 23.5, and
52.2.
32 CFR 25.605 Definitions.
(a) Except as amended in this section, the definitions of 25.105
apply to this subpart.
(b) For purposes of this subpart --
(1) Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances Act (21 U.S.C. 812), and as
further defined by regulation at 21 CFR 1308.11 through 1308.15;
(2) Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
(3) Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
(4) Drug-free workplace means a site for the performance of work done
in connection with a specific grant at which employees of the grantee
are prohibited from engaging in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance;
(5) Employee means the employee of a grantee directly engaged in the
performance of work under the grant, including:
(i) All direct charge employees;
(ii) All indirect charge employees, unless their impact or
involvement is insignificant to the performance of the grant; and,
(iii) Temporary personnel and consultants who are directly engaged in
the performance of work under the grant and who are on the grantee's
payroll.
This definition does not include workers not on the payroll of the
grantee (e.g., volunteers, even if used to meet a matching requirement;
consultants or independent contractors not on the payroll; or employees
of subrecipients or subcontractors in covered workplaces);
(6) Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency;
(7) Grant means an award of financial assistance, including a
cooperative agreement, in the form of money, or property in lieu of
money, by a Federal agency directly to a grantee. The term grant
includes block grant and entitlement grant programs, whether or not
exempted from coverage under the grants management government-wide
common rule on uniform administrative requirements for grants and
cooperative agreements. The term does not include technical assistance
that provides services instead of money, or other assistance in the form
of loans, loan guarantees, interest subsidies, insurance, or direct
appropriations; or any veterans' benefits to individuals, i.e., any
benefit to veterans, their families, or survivors by virtue of the
service of a veteran in the Armed Forces of the United States;
(8) Grantee means a person who applies for or receives a grant
directly from a Federal agency (except another Federal agency);
(9) Individual means a natural person;
(10) State means any of the States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the
State government if it has a written determination from a State
government that such State considers the instrumentality to be an agency
of the State government.
(55 FR 21688 and 21697, May. 25, 1990. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.610 Coverage.
(a) This subpart applies to any grantee of the agency.
(b) This subpart applies to any grant, except where application of
this subpart would be inconsistent with the international obligations of
the United States or the laws or regulations of a foreign government. A
determination of such inconsistency may be made only by the agency head
or his/her designee.
(c) The provisions of subparts A, B, C, D and E of this part apply to
matters covered by this subpart, except where specifically modified by
this subpart. In the event of any conflict between provisions of this
subpart and other provisions of this part, the provisions of this
subpart are deemed to control with respect to the implementation of
drug-free workplace requirements concerning grants.
32 CFR 25.615 Grounds for suspension of payments, suspension or
termination of grants, or suspension or debarment.
A grantee shall be deemed in violation of the requirements of this
subpart if the agency head or his or her official designee determines,
in writing, that --
(a) The grantee has made a false certification under 25.630;
(b) With respect to a grantee other than an individual --
(1) The grantee has violated the certification by failing to carry
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the
certification (Alternate I to Appendix C) or
(2) Such a number of employees of the grantee have been convicted of
violations of criminal drug statutes for violations occurring in the
workplace as to indicate that the grantee has failed to make a good
faith effort to provide a drug-free workplace.
(c) With respect to a grantee who is an individual --
(1) The grantee has violated the certification by failing to carry
out its requirements (Alternate II to Appendix C); or
(2) The grantee is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any grant activity.
(55 FR 21688 and 21697, May 25, 1990. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.620 Effect of violation.
(a) In the event of a violation of this subpart as provided in
25.615, and in accordance with applicable law, the grantee shall be
subject to one or more of the following actions:
(1) Suspension of payments under the grant;
(2) Suspension or termination of the grant; and
(3) Suspension or debarment of the grantee under the provisions of
this part.
(b) Upon issuance of any final decision under this part requiring
debarment of a grantee, the debarred grantee shall be ineligible for
award of any grant from any Federal agency for a period specified in the
decision, not to exceed five years (see 25.320(a)(2) of this part).
(55 FR 21688 and 21697, May 25, 1990. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 25.625 Exception provision.
The agency head may waive with respect to a particular grant, in
writing, a suspension of payments under a grant, suspension or
termination of a grant, or suspension or debarment of a grantee if the
agency head determines that such a waiver would be in the public
interest. This exception authority cannot be delegated to any other
official.
32 CFR 25.630 Certification requirements and procedures.
(a)(1) As a prior condition of being awarded a grant, each grantee
shall make the appropriate certification to the Federal agency providing
the grant, as provided in Appendix C to this part.
(2) Grantees are not required to make a certification in order to
continue receiving funds under a grant awarded before March 18, 1989, or
under a no-cost time extension of such a grant. However, the grantee
shall make a one-time drug-free workplace certification for a
non-automatic continuation of such a grant made on or after March 18,
1989.
(b) Except as provided in this section, all grantees shall make the
required certification for each grant. For mandatory formula grants and
entitlements that have no application process, grantees shall submit a
one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in
each Federal fiscal year. States that previously submitted an annual
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. Except as provided in paragraph (d) of this
section, this certification shall cover all grants to all State agencies
from any Federal agency. The State shall retain the original of this
statewide certification in its Governor's office and, prior to grant
award, shall ensure that a copy is submitted individually with respect
to each grant, unless the Federal agency has designated a central
location for submission.
(d)(1) The Governor of a State may exclude certain State agencies
from the statewide certification and authorize these agencies to submit
their own certifications to Federal agencies. The statewide
certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not
apply, or a State agency in a State that does not have a statewide
certification, may elect to make one certification in each Federal
fiscal year. State agencies that previously submitted a State agency
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. The State agency shall retain the original of
this State agency-wide certification in its central office and, prior to
grant award, shall ensure that a copy is submitted individually with
respect to each grant, unless the Federal agency designates a central
location for submission.
(3) When the work of a grant is done by more than one State agency,
the certification of the State agency directly receiving the grant shall
be deemed to certify compliance for all workplaces, including those
located in other State agencies.
(e)(1) For a grant of less than 30 days performance duration,
grantees shall have this policy statement and program in place as soon
as possible, but in any case by a date prior to the date on which
performance is expected to be completed.
(2) For a grant of 30 days or more performance duration, grantees
shall have this policy statement and program in place within 30 days
after award.
(3) Where extraordinary circumstances warrant for a specific grant,
the grant officer may determine a different date on which the policy
statement and program shall be in place.
32 CFR 25.635 Reporting of and employee sanctions for convictions of
criminal drug offenses.
(a) When a grantee other than an individual is notified that an
employee has been convicted for a violation of a criminal drug statute
occurring in the workplace, it shall take the following actions:
(1) Within 10 calendar days of receiving notice of the conviction,
the grantee shall provide written notice, including the convicted
employee's position title, to every grant officer, or other designee on
whose grant activity the convicted employee was working, unless a
Federal agency has designated a central point for the receipt of such
notifications. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
(2) Within 30 calendar days of receiving notice of the conviction,
the grantee shall do the following with respect to the employee who was
convicted.
(i) Take appropriate personnel action against the employee, up to and
including termination, consistent with requirements of the
Rehabilitation Act of 1973, as amended; or
(ii) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency.
(b) A grantee who is an individual who is convicted for a violation
of a criminal drug statute occurring during the conduct of any grant
activity shall report the conviction, in writing, within 10 calendar
days, to his or her Federal agency grant officer, or other designee,
unless the Federal agency has designated a central point for the receipt
of such notices. Notification shall include the identification
number(s) for each of the Federal agency's affected grants.
(Approved by the Office of Management and Budget under control number
0991-0002)
32 CFR 25.635 Pt. 25, App. A
32 CFR 25.635 Appendix A to Part 25 -- Certification Regarding
Debarment, Suspension, and Other Responsibility Matters -- Primary
Covered Transactions
1. By signing and submitting this proposal, the prospective primary
participant is providing the certification set out below.
2. The inability of a person to provide the certification required
below will not necessarily result in denial of participation in this
covered transaction. The prospective participant shall submit an
explanation of why it cannot provide the certification set out below.
The certification or explanation will be considered in connection with
the department or agency's determination whether to enter into this
transaction. However, failure of the prospective primary participant to
furnish a certification or an explanation shall disqualify such person
from participation in this transaction.
3. The certification in this clause is a material representation of
fact upon which reliance was placed when the department or agency
determined to enter into this transaction. If it is later determined
that the prospective primary participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause of default.
4. The prospective primary participant shall privide immediate
written notice to the department or agency to whom this proposal is
submitted if at any time the prospective primary participant learns that
its certification was erroneous when submitted or has become erroneous
by reason of changed circumstances.
5. The terms ''covered transaction,'' ''debarred,'' ''suspended,''
''ineligible,'' ''lower tier covered transaction,'' ''participant,''
''person,'' ''primary covered transaction,'' ''principal,''
''proposal,'' and ''voluntarily excluded,'' as used in this clause, have
the meanings set out in the Definitions and Coverage sections of the
rules implementing Executive Order 12549. You may contact the
department or agency to which this proposal is being submitted for
assistance in obtaining a copy of those regulations.
6. The prospective primary participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction,
unless authorized by the department or agency entering into this
transaction.
7. The prospective primary participant further agrees by submitting
this proposal that it will include the clause titled ''Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion
-- Lower Tier Covered Transaction,'' provided by the department or
agency entering into this covered transaction, without modification, in
all lower tier covered transactions and in all solicitations for lower
tier covered transactions.
8. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it knows that
the certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals.
Each participant may, but is not required to, check the Nonprocurement
List (Tel. ).
9. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and
information of a participant is not required to exceed that which is
normally possessed by a prudent person in the ordinary course of
business dealings.
10. Except for transactions authorized under paragraph 6 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
(1) The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from covered transactions
by any Federal department or agency;
(b) Have not within a three-year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State of local)
transaction or contract under a public transaction; violation of
Federal or State antitrust statutes or commission of embezzlement,
theft, forgery, bribery, falsification or destruction of records, making
false statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph (1)(b) of this
certification; and
(d) Have not within a three-year period preceding this
application/proposal had one or more public transactions (Federal, State
or local) terminated for cause or default.
(2) Where the prospective primary participant is unable to certify to
any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
32 CFR 25.635 Pt. 25, App. B
32 CFR 25.635 Appendix B to Part 25 -- Certification Regarding
Debarment, Suspension, Ineligibilty and Voluntary Exclusion -- Lower
Tier Covered Transactions
1. By signing and submitting this proposal, the prospective lower
tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was entered
into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in addition
to other remedies available to the Federal Government, the department or
agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted if at
any time the prospective lower tier participant learns that its
certification was erroneous when submitted or has become erroneous by
reason of changed circumstances.
4. The terms ''covered transaction,'' ''debarred,'' ''suspended,''
''ineligible,'' ''lower tier covered transaction,'' ''participant,''
''person,'' ''primary covered transaction,'' ''principal,''
''proposal,'' and ''voluntarily excluded,'' as used in this clause, have
the meanings set out in the Definitions and Coverage sections of rules
implementing Executive Order 12549. You may contact the person to which
this proposal is submitted for assistance in obtaining a copy of those
regulations.
5. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction,
unless authorized by the department or agency with which this
transaction originated.
6. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
''Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion -- Lower Tier Covered Transaction,'' without
modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it knows that
the certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals.
Each participant may, but is not required to, check the Nonprocurement
List (Tel. ).
8. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and
information of a participant is not required to exceed that which is
normally possessed by a prudent person in the ordinary course of
business dealings.
9. Except for transactions authorized under paragraph 5 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency with which this transaction
originated may pursue available remedies, including suspension and/or
debarment.
(1) The prospective lower tier participant certifies, by submission
of this proposal, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation in this transaction by any
Federal department or agency.
(2) Where the prospective lower tier participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
32 CFR 25.635 Pt. 25, App. C
32 CFR 25.635 Appendix C to Part 25 -- Certification Regarding
Drug-Free Workplace Requirements
1. By signing and/or submitting this application or grant agreement,
the grantee is providing the certification set out below.
2. The certification set out below is a material representation of
fact upon which reliance is placed when the agency awards the grant. If
it is later determined that the grantee knowingly rendered a false
certification, or otherwise violates the requirements of the Drug-Free
Workplace Act, the agency, in addition to any other remedies available
to the Federal Government, may take action authorized under the
Drug-Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals, need
not be identified on the certification. If known, they may be
identified in the grant application. If the grantee does not identify
the workplaces at the time of application, or upon award, if there is no
application, the grantee must keep the identity of the workplace(s) on
file in its office and make the information available for Federal
inspection. Failure to identify all known workplaces constitutes a
violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of
buildings (or parts of buildings) or other sites where work under the
grant takes place. Categorical descriptions may be used (e.g., all
vehicles of a mass transit authority or State highway department while
in operation, State employees in each local unemployment office,
performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the
performance of the grant, the grantee shall inform the agency of the
change(s), if it previously identified the workplaces in question (see
paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and
Debarment common rule and Drug-Free Workplace common rule apply to this
certification. Grantees' attention is called, in particular, to the
following definitions from these rules:
Controlled substance means a controlled substance in Schedules I
through V of the Controlled Substances Act (21 U.S.C. 812) and as
further defined by regulation (21 CFR 1308.11 through 1308.15);
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
Criminal drug statute means a Federal or non-Federal criminal statute
involving the manufacture, distribution, dispensing, use, or possession
of any controlled substance;
Employee means the employee of a grantee directly engaged in the
performance of work under a grant, including: (i) All direct charge
employees; (ii) All indirect charge employees unless their impact or
involvement is insignificant to the performance of the grant; and,
(iii) Temporary personnel and consultants who are directly engaged in
the performance of work under the grant and who are on the grantee's
payroll. This definition does not include workers not on the payroll of
the grantee (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the
grantee's payroll; or employees of subrecipients or subcontractors in
covered workplaces).
A. The grantee certifies that it will or will continue to provide a
drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the grantee's workplace and
specifying the actions that will be taken against employees for
violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform
employees about --
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the
performance of the grant be given a copy of the statement required by
paragraph (a);
(d) Notifying the employee in the statement required by paragraph (a)
that, as a condition of employment under the grant, the employee will --
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a
violation of a criminal drug statute occurring in the workplace no later
than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after
receiving notice under paragraph (d)(2) from an employee or otherwise
receiving actual notice of such conviction. Employers of convicted
employees must provide notice, including position title, to every grant
officer or other designee on whose grant activity the convicted employee
was working, unless the Federal agency has designated a central point
for the receipt of such notices. Notice shall include the
identification number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of
receiving notice under paragraph (d)(2), with respect to any employee
who is so convicted --
(1) Taking appropriate personnel action against such an employee, up
to and including termination, consistent with the requirements of the
Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency;
(g) Making a good faith effort to continue to maintain a drug-free
workplace through implementation of paragraphs (a), (b), (c), (d), (e)
and (f).
B. The grantee may insert in the space provided below the site(s) for
the performance of work done in connection with the specific grant:
Place of Performance (Street address, city, county, state, zip code)
-- -- --
Check if there are workplaces on file that are not identified here.
(a) The grantee certifies that, as a condition of the grant, he or
she will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any grant activity, he or she
will report the conviction, in writing, within 10 calendar days of the
conviction, to every grant officer or other designee, unless the Federal
agency designates a central point for the receipt of such notices. When
notice is made to such a central point, it shall include the
identification number(s) of each affected grant.
(55 FR 21690, 21697, May 25, 1990. Redesignated at 57 FR 6200, Feb.
21, 1992)
32 CFR 25.635 PART 28 -- NEW RESTRICTIONS ON LOBBYING
32 CFR 25.635 Subpart A -- General
Sec.
28.100 Conditions on use of funds.
28.105 Definitions.
28.110 Certification and disclosure.
32 CFR 25.635 Subpart B -- Activities by Own Employees
28.200 Agency and legislative liaison.
28.205 Professional and technical services.
28.210 Reporting.
32 CFR 25.635 Subpart C -- Activities by Other Than Own Employees
28.300 Professional and technical services.
32 CFR 25.635 Subpart D -- Penalties and Enforcement
28.400 Penalties.
28.405 Penalty procedures.
28.410 Enforcement.
32 CFR 25.635 Subpart E -- Exemptions
28.500 Secretary of Defense.
32 CFR 25.635 Subpart F -- Agency Reports
28.600 Semi-annual compilation.
28.605 Inspector General report.
Appendix A to Part 28 -- Certification Regarding Lobbying
Appendix B to Part 28 -- Disclosure Form to Report Lobbying
Authority: Section 319, Public Law 102-121 (31 U.S.C. 1352); 5
U.S.C. Section 301; 10 U.S.C. 113.
Source: 55 FR 6737 and 6752, Feb. 26, 1990. Redesignated at 57 FR
6199, Feb. 21, 1992.
Cross reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
32 CFR 25.635 Subpart A -- General
32 CFR 28.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in Appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in Appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in Appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in Appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
32 CFR 28.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive
departments and agencies as well as independent regulatory commissions
and Government corporations, as defined in 31 U.S.C. 9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided in
section 4 of the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450B). Alaskan Natives are included under the definitions of
Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee, as
defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a
multi-State, regional, or interstate entity having governmental duties
and powers.
32 CFR 28.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form, if
required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form, if
required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States to
insure or guarantee a loan exceeding $150,000,
Unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
Shall file a certification, and a disclosure form, if required, to
the next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e) of
this section shall be treated as a material representation of fact upon
which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23, 1989,
but not made before that date, certifications shall be required at award
or commitment, covering activities occurring between December 23, 1989,
and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
32 CFR 28.110 Subpart B -- Activities by Own Employees
32 CFR 28.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in 28.100 (a),
does not apply in the case of a payment of reasonable compensation made
to an officer or employee of a person requesting or receiving a Federal
contract, grant, loan, or cooperative agreement if the payment is for
agency and legislative liaison activities not directly related to a
covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an unsolicited
proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an agency
pursuant to the provisions of the Small Business Act, as amended by
Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
(55 FR 6737 and 6752, Feb. 26, 1990. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 28.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 28.100 (a),
does not apply in the case of a payment of reasonable compensation made
to an officer or employee of a person requesting or receiving a Federal
contract, grant, loan, or cooperative agreement or an extension,
continuation, renewal, amendment, or modification of a Federal contract,
grant, loan, or cooperative agreement if payment is for professional or
technical services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) For purposes of paragraph (a) of this section, ''professional and
technical services'' shall be limited to advice and analysis directly
applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
(55 FR 6737 and 6752, Feb. 26, 1990. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 28.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
32 CFR 28.210 Subpart C -- Activities by Other Than Own Employees
32 CFR 28.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 28.100 (a),
does not apply in the case of any reasonable payment to a person, other
than an officer or employee of a person requesting or receiving a
covered Federal action, if the payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirments in 28.110 (a) and (b) regarding filing
a disclosure form by each person, if required, shall not apply with
respect to professional or technical services rendered directly in the
preparation, submission, or negotiation of any commitment providing for
the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, ''professional and
technical services'' shall be limited to advice and analysis directly
applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e)Persons other than officers or employees of a person requesting or
receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
(55 FR 6737 and 6752, Feb. 26, 1990. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 28.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
Appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section shall
be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
32 CFR 28.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
32 CFR 28.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
32 CFR 28.410 Subpart E -- Exemptions
32 CFR 28.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
32 CFR 28.500 Subpart F -- Agency Reports
32 CFR 28.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see Appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or any
successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and Budget
(OMB), are required to provide machine-readable compilations to the
Secretary of the Senate and the Clerk of the House of Representatives no
later than with the compilations due on May 31, 1991. OMB shall provide
detailed specifications in a memorandum to these agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
32 CFR 28.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector General,
the agency official comparable to an Inspector General shall prepare and
submit the annual report, or, if there is no such comparable official,
the head of the agency shall prepare and submit the annual report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
32 CFR 28.605 Pt. 28, App. A
32 CFR 28.605 Appendix A to Part 28 -- Certification Regarding Lobbying
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid
or will be paid to any person for influencing or attempting to influence
an officer or employee of any agency, a Member of Congress, an officer
or employee of Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
''Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ''Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering
into this transaction imposed by section 1352, title 31, U.S. Code. Any
person who fails to file the required statement shall be subject to a
civil penalty of not less than $10,000 and not more than $100,000 for
each such failure.
32 CFR 28.605 Pt. 28, App. B
32 CFR 28.605 Appendix B to Part 28 -- Disclosure Form to Report
Lobbying
insert illustration 532
insert illustration 533
insert illustration 534
32 CFR 28.605 PART 33 -- UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS
32 CFR 28.605 Subpart A -- General
Sec.
33.1 Purpose and scope of this part.
33.2 Scope of subpart.
33.3 Definitions.
33.4 Applicability
33.5 Effect on other issuances.
33.6 Additions and exceptions.
32 CFR 28.605 Subpart B -- Pre-Award Requirements
33.10 Forms for applying for grants.
33.11 State plans.
33.12 Special grant or subgrant conditions for ''high-risk''
grantees.
32 CFR 28.605 Subpart C -- Post-Award Requirements
33.20 Standards for financial management systems.
33.21 Payment.
33.22 Allowable costs.
33.23 Period of availability of funds.
33.24 Matching or cost sharing.
33.25 Program income.
33.26 Non-Federal audit.
33.30 Changes.
33.31 Real property.
33.32 Equipment.
33.33 Supplies.
33.34 Copyrights.
33.35 Subawards to debarred and suspended parties.
33.36 Procurement.
33.37 Subgrants.
33.40 Monitoring and reporting program performance.
33.41 Financial reporting.
33.42 Retention and access requirements for records.
33.43 Enforcement.
33.44 Termination for convenience.
32 CFR 28.605 Subpart D -- After-the-Grant Requirements
33.50 Closeout.
33.51 Later disallowances and adjustments.
33.52 Collections of amounts due.
32 CFR 28.605 Subpart E -- Entitlements (Reserved)
Authority: 5 U.S.C. 301; 10 U.S.C. 113.
Source: 53 FR 8070, 8087, Mar. 11, 1988. Redesignated at 57 FR
6200, Feb. 21, 1992.
32 CFR 28.605 Subpart A -- General
32 CFR 33.1 Purpose and scope of this part.
This part establishes uniform administrative rules for Federal grants
and cooperative agreements and subawards to State, local and Indian
tribal governments.
32 CFR 33.2 Scope of subpart.
This subpart contains general rules pertaining to this part and
procedures for control of exceptions from this part.
32 CFR 33.3 Definitions.
As used in this part:
Accrued expenditures mean the charges incurred by the grantee during
a given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subgrantees,
subcontractors, and other payees; and
(3) Other amounts becoming owed under programs for which no current
services or performance is required, such as annuities, insurance
claims, and other benefit payments.
Accrued income means the sum of:
(1) Earnings during a given period from services performed by the
grantee and goods and other tangible property delivered to purchasers,
and
(2) Amounts becoming owed to the grantee for which no current
services or performance is required by the grantee.
Acquisition cost of an item of purchased equipment means the net
invoice unit price of the property including the cost of modifications,
attachments, accessories, or auxiliary apparatus necessary to make the
property usable for the purpose for which it was acquired. Other
charges such as the cost of installation, transportation, taxes, duty or
protective in-transit insurance, shall be included or excluded from the
unit acquisition cost in accordance with the grantee's regular
accounting practices.
Administrative requirements mean those matters common to grants in
general, such as financial management, kinds and frequency of reports,
and retention of records. These are distinguished from ''programmatic''
requirements, which concern matters that can be treated only on a
program-by-program or grant-by-grant basis, such as kinds of activities
that can be supported by grants under a particular program.
Awarding agency means:
(1) With respect to a grant, the Federal agency, and
(2) With respect to a subgrant, the party that awarded the subgrant.
Cash contributions means the grantee's cash outlay, including the
outlay of money contributed to the grantee or subgrantee by other public
agencies and institutions, and private organizations and individuals.
When authorized by Federal legislation, Federal funds received from
other assistance agreements may be considered as grantee or subgrantee
cash contributions.
Contract means (except as used in the definitions for ''grant'' and
''subgrant'' in this section and except where qualified by ''Federal'')
a procurement contract under a grant or subgrant, and means a
procurement subcontract under a contract.
Cost sharing or matching means the value of the third party in-kind
contributions and the portion of the costs of a federally assisted
project or program not borne by the Federal Government.
Cost-type contract means a contract or subcontract under a grant in
which the contractor or subcontractor is paid on the basis of the costs
it incurs, with or without a fee.
Equipment means tangible, nonexpendable, personal property having a
useful life of more than one year and an acquisition cost of $5,000 or
more per unit. A grantee may use its own definition of equipment
provided that such definition would at least include all equipment
defined above.
Expenditure report means:
(1) For nonconstruction grants, the SF-269 ''Financial Status
Report'' (or other equivalent report);
(2) For construction grants, the SF-271 ''Outlay Report and Request
for Reimbursement'' (or other equivalent report).
Federally recognized Indian tribal government means the governing
body or a governmental agency of any Indian tribe, band, nation, or
other organized group or community (including any Native village as
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat
688) certified by the Secretary of the Interior as eligible for the
special programs and services provided by him through the Bureau of
Indian Affairs.
Government means a State or local government or a federally
recognized Indian tribal government.
Grant means an award of financial assistance, including cooperative
agreements, in the form of money, or property in lieu of money, by the
Federal Government to an eligible grantee. The term does not include
technical assistance which provides services instead of money, or other
assistance in the form of revenue sharing, loans, loan guarantees,
interest subsidies, insurance, or direct appropriations. Also, the term
does not include assistance, such as a fellowship or other lump sum
award, which the grantee is not required to account for.
Grantee means the government to which a grant is awarded and which is
accountable for the use of the funds provided. The grantee is the
entire legal entity even if only a particular component of the entity is
designated in the grant award document.
Local government means a county, municipality, city, town, township,
local public authority (including any public and Indian housing agency
under the United States Housing Act of 1937) school district, special
district, intrastate district, council of governments (whether or not
incorporated as a nonprofit corporation under state law), any other
regional or interstate government entity, or any agency or
instrumentality of a local government.
Obligations means the amounts of orders placed, contracts and
subgrants awarded, goods and services received, and similar transactions
during a given period that will require payment by the grantee during
the same or a future period.
OMB means the United States Office of Management and Budget.
Outlays (expenditures) mean charges made to the project or program.
They may be reported on a cash or accrual basis. For reports prepared
on a cash basis, outlays are the sum of actual cash disbursement for
direct charges for goods and services, the amount of indirect expense
incurred, the value of in-kind contributions applied, and the amount of
cash advances and payments made to contractors and subgrantees. For
reports prepared on an accrued expenditure basis, outlays are the sum of
actual cash disbursements, the amount of indirect expense incurred, the
value of inkind contributions applied, and the new increase (or
decrease) in the amounts owed by the grantee for goods and other
property received, for services performed by employees, contractors,
subgrantees, subcontractors, and other payees, and other amounts
becoming owed under programs for which no current services or
performance are required, such as annuities, insurance claims, and other
benefit payments.
Percentage of completion method refers to a system under which
payments are made for construction work according to the percentage of
completion of the work, rather than to the grantee's cost incurred.
Prior approval means documentation evidencing consent prior to
incurring specific cost.
Real property means land, including land improvements, structures and
appurtenances thereto, excluding movable machinery and equipment.
Share, when referring to the awarding agency's portion of real
property, equipment or supplies, means the same percentage as the
awarding agency's portion of the acquiring party's total costs under the
grant to which the acquisition costs under the grant to which the
acquisition cost of the property was charged. Only costs are to be
counted -- not the value of third-party in-kind contributions.
State means any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency or instrumentality of a
State exclusive of local governments. The term does not include any
public and Indian housing agency under United States Housing Act of
1937.
Subgrant means an award of financial assistance in the form of money,
or property in lieu of money, made under a grant by a grantee to an
eligible subgrantee. The term includes financial assistance when
provided by contractual legal agreement, but does not include
procurement purchases, nor does it include any form of assistance which
is excluded from the definition of ''grant'' in this part.
Subgrantee means the government or other legal entity to which a
subgrant is awarded and which is accountable to the grantee for the use
of the funds provided.
Supplies means all tangible personal property other than
''equipment'' as defined in this part.
Suspension means depending on the context, either:
(1) Temporary withdrawal of the authority to obligate grant funds
pending corrective action by the grantee or subgrantee or a decision to
terminate the grant, or
(2) An action taken by a suspending official in accordance with
agency regulations implementing E.O. 12549 to immediately exclude a
person from participating in grant transactions for a period, pending
completion of an investigation and such legal or debarment proceedings
as may ensue.
Termination means permanent withdrawal of the authority to obligate
previously-awarded grant funds before that authority would otherwise
expire. It also means the voluntary relinquishment of that authority by
the grantee or subgrantee. ''Termination'' does not include:
(1) Withdrawal of funds awarded on the basis of the grantee's
underestimate of the unobligated balance in a prior period;
(2) Withdrawal of the unobligated balance as of the expiration of a
grant;
(3) Refusal to extend a grant or award additional funds, to make a
competing or noncompeting continuation, renewal, extension, or
supplemental award; or
(4) Voiding of a grant upon determination that the award was obtained
fraudulently, or was otherwise illegal or invalid from inception.
Terms of a grant or subgrant mean all requirements of the grant or
subgrant, whether in statute, regulations, or the award document.
Third party in-kind contributions mean property or services which
benefit a federally assisted project or program and which are
contributed by non-Federal third parties without charge to the grantee,
or a cost-type contractor under the grant agreement.
Unliquidated obligations for reports prepared on a cash basis mean
the amount of obligations incurred by the grantee that has not been
paid. For reports prepared on an accrued expenditure basis, they
represent the amount of obligations incurred by the grantee for which an
outlay has not been recorded.
Unobligated balance means the portion of the funds authorized by the
Federal agency that has not been obligated by the grantee and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
32 CFR 33.4 Applicability.
(a) General. Subparts A through D of this part apply to all grants
and subgrants to governments, except where inconsistent with Federal
statutes or with regulations authorized in accordance with the exception
provision of 33.6, or:
(1) Grants and subgrants to State and local institutions of higher
education or State and local hospitals.
(2) The block grants authorized by the Omnibus Budget Reconciliation
Act of 1981 (Community Services; Preventive Health and Health Services;
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child
Health Services; Social Services; Low-Income Home Energy Assistance;
States' Program of Community Development Block Grants for Small Cities;
and Elementary and Secondary Education other than programs administered
by the Secretary of Education under Title V, Subtitle D, Chapter 2,
Section 583 -- the Secretary's discretionary grant program) and Titles
I-III of the Job Training Partnership Act of 1982 and under the Public
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and
Rehabilitation Block Grant and Part C of Title V, Mental Health Service
for the Homeless Block Grant).
(3) Entitlement grants to carry out the following programs of the
Social Security Act:
(i) Aid to Needy Families with Dependent Children (Title IV-A of the
Act, not including the Work Incentive Program (WIN) authorized by
section 402(a)19(G); HHS grants for WIN are subject to this part);
(ii) Child Support Enforcement and Establishment of Paternity (Title
IV-D of the Act);
(iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
(iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and
XVI-AABD of the Act); and
(v) Medical Assistance (Medicaid) (Title XIX of the Act) not
including the State Medicaid Fraud Control program authorized by section
1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National
School Lunch Act:
(i) School Lunch (section 4 of the Act),
(ii) Commodity Assistance (section 6 of the Act),
(iii) Special Meal Assistance (section 11 of the Act),
(iv) Summer Food Service for Children (section 13 of the Act), and
(v) Child Care Food Program (section 17 of the Act).
(5) Entitlement grants under the following programs of The Child
Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act), and
(ii) School Breakfast (section 4 of the Act).
(6) Entitlement grants for State Administrative expenses under The
Food Stamp Act of 1977 (section 16 of the Act).
(7) A grant for an experimental, pilot, or demonstration project that
is also supported by a grant listed in paragraph (a)(3) of this section;
(8) Grant funds awarded under subsection 412(e) of the Immigration
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat.
1809), for cash assistance, medical assistance, and supplemental
security income benefits to refugees and entrants and the administrative
costs of providing the assistance and benefits;
(9) Grants to local education agencies under 20 U.S.C. 236 through
241-1(a), and 242 through 244 (portions of the Impact Aid program),
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for
Handicapped Children); and
(10) Payments under the Veterans Administration's State Home Per Diem
Program (38 U.S.C. 641(a)).
(b) Entitlement programs. Entitlement programs enumerated above in
33.4(a) (3) through (8) are subject to Subpart E.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 33.5 Effect on other issuances.
All other grants administration provisions of codified program
regulations, program manuals, handbooks and other nonregulatory
materials which are inconsistent with this part are superseded, except
to the extent they are required by statute, or authorized in accordance
with the exception provision in 33.6.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 33.6 Additions and exceptions
(a) For classes of grants and grantees subject to this part, Federal
agencies may not impose additional administrative requirements except in
codified regulations published in the Federal Register.
(b) Exceptions for classes of grants or grantees may be authorized
only by OMB.
(c) Exceptions on a case-by-case basis and for subgrantees may be
authorized by the affected Federal agencies.
32 CFR 33.6 Subpart B -- Pre-Award Requirements
32 CFR 33.10 Forms for applying for grants.
(a) Scope. (1) This section prescribes forms and instructions to be
used by governmental organizations (except hospitals and institutions of
higher education operated by a government) in applying for grants. This
section is not applicable, however, to formula grant programs which do
not require applicants to apply for funds on a project basis.
(2) This section applies only to applications to Federal agencies for
grants, and is not required to be applied by grantees in dealing with
applicants for subgrants. However, grantees are encouraged to avoid
more detailed or burdensome application requirements for subgrants.
(b) Authorized forms and instructions for governmental organizations.
(1) In applying for grants, applicants shall only use standard
application forms or those prescribed by the granting agency with the
approval of OMB under the Paperwork Reduction Act of 1980.
(2) Applicants are not required to submit more than the original and
two copies of preapplications or applications.
(3) Applicants must follow all applicable instructions that bear OMB
clearance numbers. Federal agencies may specify and describe the
programs, functions, or activities that will be used to plan, budget,
and evaluate the work under a grant. Other supplementary instructions
may be issued only with the approval of OMB to the extent required under
the Paperwork Reduction Act of 1980. For any standard form, except the
SF-424 facesheet, Federal agencies may shade out or instruct the
applicant to disregard any line item that is not needed.
(4) When a grantee applies for additional funding (such as a
continuation or supplemental award) or amends a previously submitted
application, only the affected pages need be submitted. Previously
submitted pages with information that is still current need not be
resubmitted.
32 CFR 33.11 State plans.
(a) Scope. The statutes for some programs require States to submit
plans before receiving grants. Under regulations implementing Executive
Order 12372, ''Intergovernmental Review of Federal Programs,'' States
are allowed to simplify, consolidate and substitute plans. This section
contains additional provisions for plans that are subject to regulations
implementing the Executive order.
(b) Requirements. A State need meet only Federal administrative or
programmatic requirements for a plan that are in statutes or codified
regulations.
(c) Assurances. In each plan the State will include an assurance
that the State shall comply with all applicable Federal statutes and
regulations in effect with respect to the periods for which it receives
grant funding. For this assurance and other assurances required in the
plan, the State may:
(1) Cite by number the statutory or regulatory provisions requiring
the assurances and affirm that it gives the assurances required by those
provisions,
(2) Repeat the assurance language in the statutes or regulations, or
(3) Develop its own language to the extent permitted by law.
(d) Amendments. A State will amend a plan whenever necessary to
reflect: (1) New or revised Federal statutes or regulations or (2) a
material change in any State law, organization, policy, or State agency
operation. The State will obtain approval for the amendment and its
effective date but need submit for approval only the amended portions of
the plan.
32 CFR 33.12 Special grant or subgrant conditions for ''high-risk''
grantees.
(a) A grantee or subgrantee may be considered ''high risk'' if an
awarding agency determines that a grantee or subgrantee:
(1) Has a history of unsatisfactory performance, or
(2) Is not financially stable, or
(3) Has a management system which does not meet the management
standards set forth in this part, or
(4) Has not conformed to terms and conditions of previous awards, or
(5) Is otherwise not responsible; and if the awarding agency
determines that an award will be made, special conditions and/or
restrictions shall correspond to the high risk condition and shall be
included in the award.
(b) Special conditions or restrictions may include:
(1) Payment on a reimbursement basis;
(2) Withholding authority to proceed to the next phase until receipt
of evidence of acceptable performance within a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grante or subgrantee to obtain technical or
management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to impose such conditions, the
awarding official will notify the grantee or subgrantee as early as
possible, in writing, of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must be taken before they will be
removed and the time allowed for completing the corrective actions and
(4) The method of requesting reconsideration of the
conditions/restrictions imposed.
32 CFR 33.12 Subpart C -- Post-Award Requirements
32 CFR 33.12 Financial Administration
32 CFR 33.20 Standards for financial management systems.
(a) A State must expand and account for grant funds in accordance
with State laws and procedures for expending and accounting for its own
funds. Fiscal control and accounting procedures of the State, as well
as its subgrantees and cost-type contractors, must be sufficient to --
(1) Permit preparation of reports required by this part and the
statutes authorizing the grant, and
(2) Permit the tracing of funds to a level of expenditures adequate
to establish that such funds have not been used in violation of the
restrictions and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and
subgrantees must meet the following standards:
(1) Financial reporting. Accurate, current, and complete disclosure
of the financial results of financially assisted activities must be made
in accordance with the financial reporting requirements of the grant or
subgrant.
(2) Accounting records. Grantees and subgrantees must maintain
records which adequately identify the source and application of funds
provided for financially-assisted activities. These records must
contain information pertaining to grant or subgrant awards and
authorizations, obligations, unobligated balances, assets, liabilities,
outlays or expenditures, and income.
(3) Internal control. Effective control and accountability must be
maintained for all grant and subgrant cash, real and personal property,
and other assets. Grantees and subgrantees must adequately safeguard
all such property and must assure that it is used solely for authorized
purposes.
(4) Budget control. Actual expenditures or outlays must be compared
with budgeted amounts for each grant or subgrant. Financial information
must be related to performance or productivity data, including the
development of unit cost information whenever appropriate or
specifically required in the grant or subgrant agreement. If unit cost
data are required, estimates based on available documentation will be
accepted whenever possible.
(5) Allowable cost. Applicable OMB cost principles, agency program
regulations, and the terms of grant and subgrant agreements will be
followed in determining the reasonableness, allowability, and
allocability of costs.
(6) Source documentation. Accounting records must be supported by
such source documentation as cancelled checks, paid bills, payrolls,
time and attendance records, contract and subgrant award documents, etc.
(7) Cash management. Procedures for minimizing the time elapsing
between the transfer of funds from the U.S. Treasury and disbursement by
grantees and subgrantees must be followed whenever advance payment
procedures are used. Grantees must establish reasonable procedures to
ensure the receipt of reports on subgrantees' cash balances and cash
disbursements in sufficient time to enable them to prepare complete and
accurate cash transactions reports to the awarding agency. When
advances are made by letter-of-credit or electronic transfer of funds
methods, the grantee must make drawdowns as close as possible to the
time of making disbursements. Grantees must monitor cash drawdowns by
their subgrantees to assure that they conform substantially to the same
standards of timing and amount as apply to advances to the grantees.
(c) An awarding agency may review the adequacy of the financial
management system of any applicant for financial assistance as part of a
preaward review or at any time subsequent to award.
32 CFR 33.21 Payment.
(a) Scope. This section prescribes the basic standard and the
methods under which a Federal agency will make payments to grantees, and
grantees will make payments to subgrantees and contractors.
(b) Basic standard. Methods and procedures for payment shall
minimize the time elapsing between the transfer of funds and
disbursement by the grantee or subgrantee, in accordance with Treasury
regulations at 31 CFR Part 205.
(c) Advances. Grantees and subgrantees shall be paid in advance,
provided they maintain or demonstrate the willingness and ability to
maintain procedures to minimize the time elapsing between the transfer
of the funds and their disbursement by the grantee or subgrantee.
(d) Reimbursement. Reimbursement shall be the preferred method when
the requirements in paragraph (c) of this section are not met. Grantees
and subgrantees may also be paid by reimbursement for any construction
grant. Except as otherwise specified in regulation, Federal agencies
shall not use the percentage of completion method to pay construction
grants. The grantee or subgrantee may use that method to pay its
construction contractor, and if it does, the awarding agency's payments
to the grantee or subgrantee will be based on the grantee's or
subgrantee's actual rate of disbursement.
(e) Working capital advances. If a grantee cannot meet the criteria
for advance payments described in paragraph (c) of this section, and the
Federal agency has determined that reimbursement is not feasible because
the grantee lacks sufficient working capital, the awarding agency may
provide cash or a working capital advance basis. Under this procedure
the awarding agency shall advance cash to the grantee to cover its
estimated disbursement needs for an initial period generally geared to
the grantee's disbursing cycle. Thereafter, the awarding agency shall
reimburse the grantee for its actual cash disbursements. The working
capital advance method of payment shall not be used by grantees or
subgrantees if the reason for using such method is the unwillingness or
inability of the grantee to provide timely advances to the subgrantee to
meet the subgrantee's actual cash disbursements.
(f) Effect of program income, refunds, and audit recoveries on
payment. (1) Grantees and subgrantees shall disburse repayments to and
interest earned on a revolving fund before requesting additional cash
payments for the same activity.
(2) Except as provided in paragraph (f)(1) of this section, grantees
and subgrantees shall disburse program income, rebates, refunds,
contract settlements, audit recoveries and interest earned on such funds
before requesting additional cash payments.
(g) Withholding payments. (1) Unless otherwise required by Federal
statute, awarding agencies shall not withhold payments for proper
charges incurred by grantees or subgrantees unless --
(i) The grantee or subgrantee has failed to comply with grant award
conditions or
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply with grant award condition,
but without suspension of the grant, shall be released to the grantee
upon subsequent compliance. When a grant is suspended, payment
adjustments will be made in accordance with 33.43(c).
(3) A Federal agency shall not make payment to grantees for amounts
that are withheld by grantees or subgrantees from payment to contractors
to assure satisfactory completion of work. Payments shall be made by
the Federal agency when the grantees or subgrantees actually disburse
the withheld funds to the contractors or to escrow accounts established
to assure satisfactory completion of work.
(h) Cash depositories. (1) Consistent with the national goal of
expanding the opportunities for minority business enterprises, grantees
and subgrantees are encouraged to use minority banks (a bank which is
owned at least 50 percent by minority group members). A list of
minority owned banks can be obtained from the Minority Business
Development Agency, Department of Commerce, Washington, DC 20230.
(2) A grantee or subgrantee shall maintain a separate bank account
only when required by Federal-State agreement.
(i) Interest earned on advances. Except for interest earned on
advances of funds exempt under the Intergovernmental Cooperation Act (31
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C.
450), grantees and subgrantees shall promptly, but at least quarterly,
remit interest earned on advances to the Federal agency. The grantee or
subgrantee may keep interest amounts up to $100 per year for
administrative expenses.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 33.22 Allowable costs.
(a) Limitation on use of funds. Grant funds may be used only for:
(1) The allowable costs of the grantees, subgrantees and cost-type
contractors, including allowable costs in the form of payments to
fixed-price contractors; and
(2) Reasonable fees or profit to cost-type contractors but not any
fee or profit (or other increment above allowable costs) to the grantee
or subgrantee.
(b) Applicable cost principles. For each kind of organization, there
is a set of Federal principles for determining allowable costs.
Allowable costs will be determined in accordance with the cost
principles applicable to the organization incurring the costs. The
following chart lists the kinds of organizations and the applicable cost
principles.
32 CFR 33.23 Period of availability of funds.
(a) General. Where a funding period is specified, a grantee may
charge to the award only costs resulting from obligations of the funding
period unless carryover of unobligated balances is permitted, in which
case the carryover balances may be charged for costs resulting from
obligations of the subsequent funding period.
(b) Liquidation of obligations. A grantee must liquidate all
obligations incurred under the award not later than 90 days after the
end of the funding period (or as specified in a program regulation) to
coincide with the submission of the annual Financial Status Report
(SF-269). The Federal agency may extend this deadline at the request of
the grantee.
32 CFR 33.24 Matching or cost sharing.
(a) Basic rule: Costs and contributions acceptable. With the
qualifications and exceptions listed in paragraph (b) of this section, a
matching or cost sharing requirement may be satisfied by either or both
of the following:
(1) Allowable costs incurred by the grantee, subgrantee or a
cost-type contractor under the assistance agreement. This includes
allowable costs borne by non-Federal grants or by others cash donations
from non-Federal third parties.
(2) The value of third party in-kind contributions applicable to the
period to which the cost sharing or matching requirements applies.
(b) Qualifications and exceptions -- (1) Costs borne by other Federal
grant agreements. Except as provided by Federal statute, a cost sharing
or matching requirement may not be met by costs borne by another Federal
grant. This prohibition does not apply to income earned by a grantee or
subgrantee from a contract awarded under another Federal grant.
(2) General revenue sharing. For the purpose of this section,
general revenue sharing funds distributed under 31 U.S.C. 6702 are not
considered Federal grant funds.
(3) Cost or contributions counted towards other Federal costs-sharing
requirements. Neither costs nor the values of third party in-kind
contributions may count towards satisfying a cost sharing or matching
requirement of a grant agreement if they have been or will be counted
towards satisfying a cost sharing or matching requirement of another
Federal grant agreement, a Federal procurement contract, or any other
award of Federal funds.
(4) Costs financed by program income. Costs financed by program
income, as defined in 33.25, shall not count towards satisfying a cost
sharing or matching requirement unless they are expressly permitted in
the terms of the assistance agreement. (This use of general program
income is described in 33.25(g).)
(5) Services or property financed by income earned by contractors.
Contractors under a grant may earn income from the activities carried
out under the contract in addition to the amounts earned from the party
awarding the contract. No costs of services or property supported by
this income may count toward satisfying a cost sharing or matching
requirement unless other provisions of the grant agreement expressly
permit this kind of income to be used to meet the requirement.
(6) Records. Costs and third party in-kind contributions counting
towards satisfying a cost sharing or matching requirement must be
verifiable from the records of grantees and subgrantee or cost-type
contractors. These records must show how the value placed on third
party in-kind contributions was derived. To the extent feasible,
volunteer services will be supported by the same methods that the
organization uses to support the allocability of regular personnel
costs.
(7) Special standards for third party in-kind contributions. (i)
Third party in-kind contributions count towards satisfying a cost
sharing or matching requirement only where, if the party receiving the
contributions were to pay for them, the payments would be allowable
costs.
(ii) Some third party in-kind contributions are goods and services
that, if the grantee, subgrantee, or contractor receiving the
contribution had to pay for them, the payments would have been an
indirect costs. Costs sharing or matching credit for such contributions
shall be given only if the grantee, subgrantee, or contractor has
established, along with its regular indirect cost rate, a special rate
for allocating to individual projects or programs the value of the
contributions.
(iii) A third party in-kind contribution to a fixed-price contract
may count towards satisfying a cost sharing or matching requirement only
if it results in:
(A) An increase in the services or property provided under the
contract (without additional cost to the grantee or subgrantee) or
(B) A cost savings to the grantee or subgrantee.
(iv) The values placed on third party in-kind contributions for cost
sharing or matching purposes will conform to the rules in the succeeding
sections of this part. If a third party in-kind contribution is a type
not treated in those sections, the value placed upon it shall be fair
and reasonable.
(c) Valuation of donated services -- (1) Volunteer services. Unpaid
services provided to a grantee or subgrantee by individuals will be
valued at rates consistent with those ordinarily paid for similar work
in the grantee's or subgrantee's organization. If the grantee or
subgrantee does not have employees performing similar work, the rates
will be consistent with those ordinarily paid by other employers for
similar work in the same labor market. In either case, a reasonable
amount for fringe benefits may be included in the valuation.
(2) Employees of other organizations. When an employer other than a
grantee, subgrantee, or cost-type contractor furnishes free of charge
the services of an employee in the employee's normal line of work, the
services will be valued at the employee's regular rate of pay exclusive
of the employee's fringe benefits and overhead costs. If the services
are in a different line of work, paragraph (c)(1) of this section
applies.
(d) Valuation of third party donated supplies and loaned equipment or
space. (1) If a third party donates supplies, the contribution will be
valued at the market value of the supplies at the time of donation.
(2) If a third party donates the use of equipment or space in a
building but retains title, the contribution will be valued at the fair
rental rate of the equipment or space.
(e) Valuation of third party donated equipment, buildings, and land.
If a third party donates equipment, buildings, or land, and title passes
to a grantee or subgrantee, the treatment of the donated property will
depend upon the purpose of the grant or subgrant, as follows:
(1) Awards for capital expenditures. If the purpose of the grant or
subgrant is to assist the grantee or subgrantee in the acquisition of
property, the market value of that property at the time of donation may
be counted as cost sharing or matching,
(2) Other awards. If assisting in the acquisition of property is not
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of
this section apply:
(i) If approval is obtained from the awarding agency, the market
value at the time of donation of the donated equipment or buildings and
the fair rental rate of the donated land may be counted as cost sharing
or matching. In the case of a subgrant, the terms of the grant
agreement may require that the approval be obtained from the Federal
agency as well as the grantee. In all cases, the approval may be given
only if a purchase of the equipment or rental of the land would be
approved as an allowable direct cost. If any part of the donated
property was acquired with Federal funds, only the non-federal share of
the property may be counted as cost-sharing or matching.
(ii) If approval is not obtained under paragraph (e)(2)(i) of this
section, no amount may be counted for donated land, and only
depreciation or use allowances may be counted for donated equipment and
buildings. The depreciation or use allowances for this property are not
treated as third party in-kind contributions. Instead, they are treated
as costs incurred by the grantee or subgrantee. They are computed and
allocated (usually as indirect costs) in accordance with the cost
principles specified in 33.22, in the same way as depreciation or use
allowances for purchased equipment and buildings. The amount of
depreciation or use allowances for donated equipment and buildings is
based on the property's market value at the time it was donated.
(f) Valuation of grantee or subgrantee donated real property for
construction/acquisition. If a grantee or subgrantee donates real
property for a construction or facilities acquisition project, the
current market value of that property may be counted as cost sharing or
matching. If any part of the donated property was acquired with Federal
funds, only the non-federal share of the property may be counted as cost
sharing or matching.
(g) Appraisal of real property. In some cases under paragraphs (d),
(e) and (f) of this section, it will be necessary to establish the
market value of land or a building or the fair rental rate of land or of
space in a building. In these cases, the Federal agency may require the
market value or fair rental value be set by an independent appraiser,
and that the value or rate be certified by the grantee. This
requirement will also be imposed by the grantee on subgrantees.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 33.25 Program income.
(a) General. Grantees are encouraged to earn income to defray
program costs. Program income includes income from fees for services
performed, from the use or rental of real or personal property acquired
with grant funds, from the sale of commodities or items fabricated under
a grant agreement, and from payments of principal and interest on loans
made with grant funds. Except as otherwise provided in regulations of
the Federal agency, program income does not include interest on grant
funds, rebates, credits, discounts, refunds, etc. and interest earned
on any of them.
(b) Definition of program income. Program income means gross income
received by the grantee or subgrantee directly generated by a grant
supported activity, or earned only as a result of the grant agreement
during the grant period. ''During the grant period'' is the time
between the effective date of the award and the ending date of the award
reflected in the final financial report.
(c) Cost of generating program income. If authorized by Federal
regulations or the grant agreement, costs incident to the generation of
program income may be deducted from gross income to determine program
income.
(d) Governmental revenues. Taxes, special assessments, levies,
fines, and other such revenues raised by a grantee or subgrantee are not
program income unless the revenues are specifically identified in the
grant agreement or Federal agency regulations as program income.
(e) Royalties. Income from royalties and license fees for
copyrighted material, patents, and inventions developed by a grantee or
subgrantee is program income only if the revenues are specifically
identified in the grant agreement or Federal agency regulations as
program income. (See 33.34.)
(f) Property. Proceeds from the sale of real property or equipment
will be handled in accordance with the requirements of 33.31.
(g) Use of program income. Program income shall be deducted from
outlays which may be both Federal and non-Federal as described below,
unless the Federal agency regulations or the grant agreement specify
another alternative (or a combination of the alternatives). In
specifying alternatives, the Federal agency may distinguish between
income earned by the grantee and income earned by subgrantees and
between the sources, kinds, or amounts of income. When Federal agencies
authorize the alternatives in paragraphs (g) (2) and (3) of this
section, program income in excess of any limits stipulated shall also be
deducted from outlays.
(1) Deduction. Ordinarily program income shall be deducted from
total allowable costs to determine the net allowable costs. Program
income shall be used for current costs unless the Federal agency
authorizes otherwise. Program income which the grantee did not
anticipate at the time of the award shall be used to reduce the Federal
agency and grantee contributions rather than to increase the funds
committed to the project.
(2) Addition. When authorized, program income may be added to the
funds committed to the grant agreement by the Federal agency and the
grantee. The program income shall be used for the purposes and under
the conditions of the grant agreement.
(3) Cost sharing or matching. When authorized, program income may be
used to meet the cost sharing or matching requirement of the grant
agreement. The amount of the Federal grant award remains the same.
(h) Income after the award period. There are no Federal requirements
governing the disposition of program income earned after the end of the
award period (i.e., until the ending date of the final financial report,
see paragraph (a) of this section), unless the terms of the agreement or
the Federal agency regulations provide otherwise.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 33.26 Non-Federal audit.
(a) Basic rule. Grantees and subgrantees are responsible for
obtaining audits in accordance with the Single Audit Act of 1984 (31
U.S.C. 7501-7) and Federal agency implementing regulations. The audits
shall be made by an independent auditor in accordance with generally
accepted government auditing standards covering financial and compliance
audits.
(b) Subgrantees. State or local governments, as those terms are
defined for purposes of the Single Audit Act, that receive Federal
financial assistance and provide $25,000 or more of it in a fiscal year
to a subgrantee shall:
(1) Determine whether State or local subgrantees have met the audit
requirements of the Act and whether subgrantees covered by OMB Circular
A-110, ''Uniform Requirements for Grants and Other Agreements with
Institutions of Higher Education, Hospitals and Other Nonprofit
Organizations'' have met the audit requirement. Commercial contractors
(private forprofit and private and governmental organizations) providing
goods and services to State and local governments are not required to
have a single audit performed. State and local govenments should use
their own procedures to ensure that the contractor has complied with
laws and regulations affecting the expenditure of Federal funds;
(2) Determine whether the subgrantee spent Federal assistance funds
provided in accordance with applicable laws and regulations. This may
be accomplished by reviewing an audit of the subgrantee made in
accordance with the Act, Circular A-110, or through other means (e.g.,
program reviews) if the subgrantee has not had such an audit;
(3) Ensure that appropriate corrective action is taken within six
months after receipt of the audit report in instance of noncompliance
with Federal laws and regulations;
(4) Consider whether subgrantee audits necessitate adjustment of the
grantee's own records; and
(5) Require each subgrantee to permit independent auditors to have
access to the records and financial statements.
(c) Auditor selection. In arranging for audit services, 33.36 shall
be followed.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 33.26 Changes, Property, and Subawards
32 CFR 33.30 Changes.
(a) General. Grantees and subgrantees are permitted to rebudget
within the approved direct cost budget to meet unanticipated
requirements and may make limited program changes to the approved
project. However, unless waived by the awarding agency, certain types
of post-award changes in budgets and projects shall require the prior
written approval of the awarding agency.
(b) Relation to cost principles. The applicable cost principles (see
33.22) contain requirements for prior approval of certain types of
costs. Except where waived, those requirements apply to all grants and
subgrants even if paragraphs (c) through (f) of this section do not.
(c) Budget changes -- (1) Nonconstruction projects. Except as stated
in other regulations or an award document, grantees or subgrantees shall
obtain the prior approval of the awarding agency whenever any of the
following changes is anticipated under a nonconstruction award:
(i) Any revision which would result in the need for additional
funding.
(ii) Unless waived by the awarding agency, cumulative transfers among
direct cost categories, or, if applicable, among separately budgeted
programs, projects, functions, or activities which exceed or are
expected to exceed ten percent of the current total approved budget,
whenever the awarding agency's share exceeds $100,000.
(iii) Transfer of funds allotted for training allowances (i.e., from
direct payments to trainees to other expense categories).
(2) Construction projects. Grantees and subgrantees shall obtain
prior written approval for any budget revision which would result in the
need for additional funds.
(3) Combined construction and nonconstruction projects. When a grant
or subgrant provides funding for both construction and nonconstruction
activities, the grantee or subgrantee must obtain prior written approval
from the awarding agency before making any fund or budget transfer from
nonconstruction to construction or vice versa.
(d) Programmatic changes. Grantees or subgrantees must obtain the
prior approval of the awarding agency whenever any of the following
actions is anticipated:
(1) Any revision of the scope or objectives of the project
(regardless of whether there is an associated budget revision requiring
prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases where specified in an application
or a grant award. In research projects, a change in the project
director or principal investigator shall always require approval unless
waived by the awarding agency.
(4) Under nonconstruction projects, contracting out, subgranting (if
authorized by law) or otherwise obtaining the services of a third party
to perform activities which are central to the purposes of the award.
This approval requirement is in addition to the approval requirements of
33.36 but does not apply to the procurement of equipment, supplies, and
general support services.
(e) Additional prior approval requirements. The awarding agency may
not require prior approval for any budget revision which is not
described in paragraph (c) of this section.
(f) Requesting prior approval. (1) A request for prior approval of
any budget revision will be in the same budget formal the grantee used
in its application and shall be accompanied by a narrative justification
for the proposed revision.
(2) A request for a prior approval under the applicable Federal cost
principles (see 33.22) may be made by letter.
(3) A request by a subgrantee for prior approval will be addressed in
writing to the grantee. The grantee will promptly review such request
and shall approve or disapprove the request in writing. A grantee will
not approve any budget or project revision which is inconsistent with
the purpose or terms and conditions of the Federal grant to the grantee.
If the revision, requested by the subgrantee would result in a change
to the grantee's approved project which requires Federal prior approval,
the grantee will obtain the Federal agency's approval before approving
the subgrantee's request.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6200, Feb. 21, 1992)
32 CFR 33.31 Real property.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to real property acquired under a grant or subgrant
will vest upon acquisition in the grantee or subgrantee respectively.
(b) Use. Except as otherwise provided by Federal statutes, real
property will be used for the originally authorized purposes as long as
needed for that purposes, and the grantee or subgrantee shall not
dispose of or encumber its title or other interests.
(c) Disposition. When real property is no longer needed for the
originally authorized purpose, the grantee or subgrantee will request
disposition instructions from the awarding agency. The instructions
will provide for one of the following alternatives:
(1) Retention of title. Retain title after compensating the awarding
agency. The amount paid to the awarding agency will be computed by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the fair market value of the property.
However, in those situations where a grantee or subgrantee is disposing
of real property acquired with grant funds and acquiring replacement
real property under the same program, the net proceeds from the
disposition may be used as an offset to the cost of the replacement
property.
(2) Sale of property. Sell the property and compensate the awarding
agency. The amount due to the awarding agency will be calculated by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the proceeds of the sale after deduction of
any actual and reasonable selling and fixing-up expenses. If the grant
is still active, the net proceeds from sale may be offset against the
original cost of the property. When a grantee or subgrantee is directed
to sell property, sales procedures shall be followed that provide for
competition to the extent practicable and result in the highest possible
return.
(3) Transfer of title. Transfer title to the awarding agency or to a
third-party designated/approved by the awarding agency. The grantee or
subgrantee shall be paid an amount calculated by applying the grantee or
subgrantee's percentage of participation in the purchase of the real
property to the current fair market value of the property.
32 CFR 33.32 Equipment.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to equipment acquired under a grant or subgrant will
vest upon acquisition in the grantee or subgrantee respectively.
(b) States. A State will use, manage, and dispose of equipment
acquired under a grant by the State in accordance with State laws and
procedures. Other grantees and subgrantees will follow paragraphs (c)
through (e) of this section.
(c) Use. (1) Equipment shall be used by the grantee or subgrantee in
the program or project for which it was acquired as long as needed,
whether or not the project or program continues to be supported by
Federal funds. When no longer needed for the original program or
project, the equipment may be used in other activities currently or
previously supported by a Federal agency.
(2) The grantee or subgrantee shall also make equipment available for
use on other projects or programs currently or previously supported by
the Federal Government, providing such use will not interfere with the
work on the projects or program for which it was originally acquired.
First preference for other use shall be given to other programs or
projects supported by the awarding agency. User fees should be
considered if appropriate.
(3) Notwithstanding the encouragement in 33.25(a) to earn program
income, the grantee or subgrantee must not use equipment acquired with
grant funds to provide services for a fee to compete unfairly with
private companies that provide equivalent services, unless specifically
permitted or contemplated by Federal statute.
(4) When acquiring replacement equipment, the grantee or subgrantee
may use the equipment to be replaced as a trade-in or sell the property
and use the proceeds to offset the cost of the replacement property,
subject to the approval of the awarding agency.
(d) Management requirements. Procedures for managing equipment
(including replacement equipment), whether acquired in whole or in part
with grant funds, until disposition takes place will, as a minimum, meet
the following requirements:
(1) Property records must be maintained that include a description of
the property, a serial number or other identification number, the source
of property, who holds title, the acquisition date, and cost of the
property, percentage of Federal participation in the cost of the
property, the location, use and condition of the property, and any
ultimate disposition data including the date of disposal and sale price
of the property.
(2) A physical inventory of the property must be taken and the
results reconciled with the property records at least once every two
years.
(3) A control system must be developed to ensure adequate safeguards
to prevent loss, damage, or theft of the property. Any loss, damage, or
theft shall be investigated.
(4) Adequate maintenance procedures must be developed to keep the
property in good condition.
(5) If the grantee or subgrantee is authorized or required to sell
the property, proper sales procedures must be established to ensure the
highest possible return.
(e) Disposition. When original or replacement equipment acquired
under a grant or subgrant is no longer needed for the original project
or program or for other activities currently or previously supported by
a Federal agency, disposition of the equipment will be made as follows:
(1) Items of equipment with a current per-unit fair market value of
less than $5,000 may be retained, sold or otherwise disposed of with no
further obligation to the awarding agency.
(2) Items of equipment with a current per unit fair market value in
excess of $5,000 may be retained or sold and the awarding agency shall
have a right to an amount calculated by multiplying the current market
value or proceeds from sale by the awarding agency's share of the
equipment.
(3) In cases where a grantee or subgrantee fails to take appropriate
disposition actions, the awarding agency may direct the grantee or
subgrantee to take excess and disposition actions.
(f) Federal equipment. In the event a grantee or subgrantee is
provided federally-owned equipment:
(1) Title will remain vested in the Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance
with Federal agency rules and procedures, and submit an annual inventory
listing.
(3) When the equipment is no longer needed, the grantee or subgrantee
will request disposition instructions from the Federal agency.
(g) Right to transfer title. The Federal awarding agency may reserve
the right to transfer title to the Federal Government or a third part
named by the awarding agency when such a third party is otherwise
eligible under existing statutes. Such transfers shall be subject to
the following standards:
(1) The property shall be identified in the grant or otherwise made
known to the grantee in writing.
(2) The Federal awarding agency shall issue disposition instruction
within 120 calendar days after the end of the Federal support of the
project for which it was acquired. If the Federal awarding agency fails
to issue disposition instructions within the 120 calendar-day period the
grantee shall follow 33.32(e).
(3) When title to equipment is transferred, the grantee shall be paid
an amount calculated by applying the percentage of participation in the
purchase to the current fair market value of the property.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6201, Feb. 21, 1992)
32 CFR 33.33 Supplies.
(a) Title. Title to supplies acquired under a grant or subgrant will
vest, upon acquisition, in the grantee or subgrantee respectively.
(b) Disposition. If there is a residual inventory of unused supplies
exceeding $5,000 in total aggregate fair market value upon termination
or completion of the award, and if the supplies are not needed for any
other federally sponsored programs or projects, the grantee or
subgrantee shall compensate the awarding agency for its share.
32 CFR 33.34 Copyrights.
The Federal awarding agency reserves a royalty-free, nonexclusive,
and irrevocable license to reproduce, publish or otherwise use, and to
authorize others to use, for Federal Government purposes:
(a) The copyright in any work developed under a grant, subgrant, or
contract under a grant or subgrant; and
(b) Any rights of copyright to which a grantee, subgrantee or a
contractor purchases ownership with grant support.
32 CFR 33.35 Subawards to debarred and suspended parties.
Grantees and subgrantees must not make any award or permit any award
(subgrant or contract) at any tier to any party which is debarred or
suspended or is otherwise excluded from or ineligible for participation
in Federal assistance programs under Executive Order 12549, ''Debarment
and Suspension.''
32 CFR 33.36 Procurement.
(a) States. When procuring property and services under a grant, a
State will follow the same policies and procedures it uses for
procurements from its non-Federal funds. The State will ensure that
every purchase order or other contract includes any clauses required by
Federal statutes and executive orders and their implementing
regulations. Other grantees and subgrantees will follow paragraphs (b)
through (i) in this section.
(b) Procurement standards. (1) Grantees and subgrantees will use
their own procurement procedures which reflect applicable State and
local laws and regulations, provided that the procurements conform to
applicable Federal law and the standards identified in this section.
(2) Grantees and subgrantees will maintain a contract administration
system which ensures that contractors perform in accordance with the
terms, conditions, and specifications of their contracts or purchase
orders.
(3) Grantees and subgrantees will maintain a written code of
standards of conduct governing the performance of their employees
engaged in the award and administration of contracts. No employee,
officer or agent of the grantee or subgrantee shall participate in
selection, or in the award or administration of a contract supported by
Federal funds if a conflict of interest, real or apparent, would be
involved. Such a conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate family,
(iii) His or her partner, or
(iv) An organization which employs, or is about to employ, any of the
above, has a financial or other interest in the firm selected for award.
The grantee's or subgrantee's officers, employees or agents will
neither solicit nor accept gratuities, favors or anything of monetary
value from contractors, potential contractors, or parties to
subagreements. Grantee and subgrantees may set minimum rules where the
financial interest is not substantial or the gift is an unsolicited item
of nominal intrinsic value. To the extent permitted by State or local
law or regulations, such standards or conduct will provide for
penalties, sanctions, or other disciplinary actions for violations of
such standards by the grantee's and subgrantee's officers, employees, or
agents, or by contractors or their agents. The awarding agency may in
regulation provide additional prohibitions relative to real, apparent,
or potential conflicts of interest.
(4) Grantee and subgrantee procedures will provide for a review of
proposed procurements to avoid purchase of unnecessary or duplicative
items. Consideration should be given to consolidating or breaking out
procurements to obtain a more economical purchase. Where appropriate,
an analysis will be made of lease versus purchase alternatives, and any
other appropriate analysis to determine the most economical approach.
(5) To foster greater economy and efficiency, grantees and
subgrantees are encouraged to enter into State and local
intergovernmental agreements for procurement or use of common goods and
services.
(6) Grantees and subgrantees are encouraged to use Federal excess and
surplus property in lieu of purchasing new equipment and property
whenever such use is feasible and reduces project costs.
(7) Grantees and subgrantees are encouraged to use value engineering
clauses in contracts for construction projects of sufficient size to
offer reasonable opportunities for cost reductions. Value engineering
is a systematic and creative anaylsis of each contract item or task to
ensure that its essential function is provided at the overall lower
cost.
(8) Grantees and subgrantees will make awards only to responsible
contractors possessing the ability to perform successfully under the
terms and conditions of a proposed procurement. Consideration will be
given to such matters as contractor integrity, compliance with public
policy, record of past performance, and financial and technical
resources.
(9) Grantees and subgrantees will maintain records sufficient to
detail the significant history of a procurement. These records will
include, but are not necessarily limited to the following: rationale
for the method of procurement, selection of contract type, contractor
selection or rejection, and the basis for the contract price.
(10) Grantees and subgrantees will use time and material type
contracts only --
(i) After a determination that no other contract is suitable, and
(ii) If the contract includes a ceiling price that the contractor
exceeds at its own risk.
(11) Grantees and subgrantees alone will be responsible, in
accordance with good administrative practice and sound business
judgment, for the settlement of all contractual and administrative
issues arising out of procurements. These issues include, but are not
limited to source evaluation, protests, disputes, and claims. These
standards do not relieve the grantee or subgrantee of any contractual
responsibilities under its contracts. Federal agencies will not
substitute their judgment for that of the grantee or subgrantee unless
the matter is primarily a Federal concern. Violations of law will be
referred to the local, State, or Federal authority having proper
jurisdiction.
(12) Grantees and subgrantees will have protest procedures to handle
and resolve disputes relating to their procurements and shall in all
instances disclose information regarding the protest to the awarding
agency. A protestor must exhaust all administrative remedies with the
grantee and subgrantee before pursuing a protest with the Federal
agency. Reviews of protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of
this section (violations of State or local law will be under the
jurisdiction of State or local authorities) and
(ii) Violations of the grantee's or subgrantee's protest procedures
for failure to review a complaint or protest. Protests received by the
Federal agency other than those specified above will be referred to the
grantee or subgrantee.
(c) Competition. (1) All procurement transactions will be conducted
in a manner providing full and open competition consistent with the
standards of 33.36. Some of the situations considered to be restrictive
of competition include but are not limited to:
(i) Placing unreasonable requirements on firms in order for them to
qualify to do business,
(ii) Requiring unnecessary experience and excessive bonding,
(iii) Noncompetitive pricing practices between firms or between
affiliated companies,
(iv) Noncompetitive awards to consultants that are on retainer
contracts,
(v) Organizational conflicts of interest,
(vi) Specifying only a ''brand name'' product instead of allowing
''an equal'' product to be offered and describing the performance of
other relevant requirements of the procurement, and
(vii) Any arbitrary action in the procurement process.
(2) Grantees and subgrantees will conduct procurements in a manner
that prohibits the use of statutorily or administratively imposed
in-State or local geographical preferences in the evaluation of bids or
proposals, except in those cases where applicable Federal statutes
expressly mandate or encourage geographic preference. Nothing in this
section preempts State licensing laws. When contracting for
architectural and engineering (A/E) services, geographic location may be
a selection criteria provided its application leaves an appropriate
number of qualified firms, given the nature and size of the project, to
compete for the contract.
(3) Grantees will have written selection procedures for procurement
transactions. These procedures will ensure that all solicitations:
(i) Incorporate a clear and accurate description of the technical
requirements for the material, product, or service to be procured. Such
description shall not, in competitive procurements, contain features
which unduly restrict competition. The description may include a
statement of the qualitative nature of the material, product or service
to be procured, and when necessary, shall set forth those minimum
essential characteristics and standards to which it must conform if it
is to satisfy its intended use. Detailed product specifications should
be avoided if at all possible. When it is impractical or uneconomical
to make a clear and accurate description of the technical requirements,
a ''brand name or equal'' description may be used as a means to define
the performance or other salient requirements of a procurement. The
specific features of the named brand which must be met by offerors shall
be clearly stated; and
(ii) Identify all requirements which the offerors must fulfill and
all other factors to be used in evaluating bids or proposals.
(4) Grantees and subgrantees will ensure that all prequalified lists
of persons, firms, or products which are used in acquiring goods and
services are current and include enough qualified sources to ensure
maximum open and free competition. Also, grantees and subgrantees will
not preclude potential bidders from qualifying during the solicitation
period.
(d) Methods of procurement to be followed -- (1) Procurement by small
purchase procedures. Small purchase procedures are those relatively
simple and informal procurement methods for securing services, supplies,
or other property that do not cost more than $25,000 in the aggregate.
If small purchase procurements are used, price or rate quotations will
be obtained from an adequate number of qualified sources.
(2) Procurement by sealed bids (formal advertising). Bids are
publicly solicited and a firm-fixed-price contract (lump sum or unit
price) is awarded to the responsible bidder whose bid, conforming with
all the material terms and conditions of the invitation for bids, is the
lowest in price. The sealed bid method is the preferred method for
procuring construction, if the conditions in 33.36(d)(2)(i) apply.
(i) In order for sealed bidding to be feasible, the following
conditions should be present:
(A) A complete, adequate, and realistic specification or purchase
description is available;
(B) Two or more responsible bidders are willing and able to compete
effectively for the business; and
(C) The procurement lends itself to a firm fixed price contract and
the selection of the successful bidder can be made principally on the
basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) The invitation for bids will be publicly advertised and bids
shall be solicited from an adequate number of known suppliers, providing
them sufficient time prior to the date set for opening the bids;
(B) The invitation for bids, which will include any specifications
and pertinent attachments, shall define the items or services in order
for the bidder to properly respond;
(C) All bids will be publicly opened at the time and place prescribed
in the invitation for bids;
(D) A firm fixed-price contract award will be made in writing to the
lowest responsive and responsible bidder. Where specified in bidding
documents, factors such as discounts, transportation cost, and life
cycle costs shall be considered in determining which bid is lowest.
Payment discounts will only be used to determine the low bid when prior
experience indicates that such discounts are usually taken advantage of;
and
(E) Any or all bids may be rejected if there is a sound documented
reason.
(3) Procurement by competitive proposals. The technique of
competitive proposals is normally conducted with more than one source
submitting an offer, and either a fixed-price or cost-reimbursement type
contract is awarded. It is generally used when conditions are not
appropriate for the use of sealed bids. If this method is used, the
following requirements apply:
(i) Requests for proposals will be publicized and identify all
evaluation factors and their relative importance. Any response to
publicized requests for proposals shall be honored to the maximum extent
practical;
(ii) Proposals will be solicited from an adequate number of qualified
sources;
(iii) Grantees and subgrantees will have a method for conducting
technical evaluations of the proposals received and for selecting
awardees;
(iv) Awards will be made to the responsible firm whose proposal is
most advantageous to the program, with price and other factors
considered; and
(v) Grantees and subgrantees may use competitive proposal procedures
for qualifications-based procurement of architectural/engineering (A/E)
professional services whereby competitors' qualifications are evaluated
and the most qualified competitor is selected, subject to negotiation of
fair and reasonable compensation. The method, where price is not used
as a selection factor, can only be used in procurement of A/E
professional services. It cannot be used to purchase other types of
services though A/E firms are a potential source to perform the proposed
effort.
(4) Procurement by noncompetitive proposals is procurement through
solicitation of a proposal from only one source, or after solicitation
of a number of sources, competition is determined inadequate.
(i) Procurement by noncompetitive proposals may be used only when the
award of a contract is infeasible under small purchase procedures,
sealed bids or competitive proposals and one of the following
circumstances applies:
(A) The item is available only from a single source;
(B) The public exigency or emergency for the requirement will not
permit a delay resulting from competitive solicitation.
(C) The awarding agency authorizes noncompetitive proposals; or
(D) After solicitation of a number of sources, competition is
determined inadequate.
(ii) Cost analysis, i.e., verifying the proposed cost data, the
projections of the data, and the evaluation of the specific elements of
costs and profit, is required.
(iii) Grantees and subgrantees may be required to submit the proposed
procurement to the awarding agency for pre-award review in accordance
with paragraph (g) of this section.
(e) Contracting with small and minority firms, women's business
enterprise and labor surplus area firms. (1) The grantee and subgrantee
will take all necessary affirmative steps to assure that minority firms,
women's business enterprises, and labor surplus area firms are used when
possible.
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's
business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's
business enterprises are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into
smaller tasks or quantities to permit maximum participation by small and
minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits,
which encourage participation by small and minority business, and
women's business enterprises;
(v) Using the services and assistance of the Small Business
Administration, and the Minority Business Development Agency of the
Department of Commerce; and
(vi) Requiring the prime contractor, if subcontracts are to be let,
to take the affirmative steps listed in paragraphs (e)(2) (i) through
(v) of this section.
(f) Contract cost and price. (1) Grantees and subgrantees must
perform a cost or price analysis in connection with every procurement
action including contract modifications. The method and degree of
analysis is dependent on the facts surrounding the particular
procurement situation, but as a starting point, grantees must make
independent estimates before receiving bids or proposals. A cost
analysis must be performed when the offeror is required to submit the
elements of his estimated cost, e.g., under professional, consulting,
and architectural engineering services contracts. A cost analysis will
be necessary when adequate price competition is lacking, and for sole
source procurements, including contract modifications or change orders,
unless price resonableness can be established on the basis of a catalog
or market price of a commercial product sold in substantial quantities
to the general public or based on prices set by law or regulation. A
price analysis will be used in all other instances to determine the
reasonableness of the proposed contract price.
(2) Grantees and subgrantees will negotiate profit as a separate
element of the price for each contract in which there is no price
competition and in all cases where cost analysis is performed. To
establish a fair and reasonable profit, consideration will be given to
the complexity of the work to be performed, the risk borne by the
contractor, the contractor's investment, the amount of subcontracting,
the quality of its record of past performance, and industry profit rates
in the surrounding geographical area for similar work.
(3) Costs or prices based on estimated costs for contracts under
grants will be allowable only to the extent that costs incurred or cost
estimates included in negotiated prices are consistent with Federal cost
principles (see 33.22). Grantees may reference their own cost
principles that comply with the applicable Federal cost principles.
(4) The cost plus a percentage of cost and percentage of construction
cost methods of contracting shall not be used.
(g) Awarding agency review. (1) Grantees and subgrantees must make
available, upon request of the awarding agency, technical specifications
on proposed procurements where the awarding agency believes such review
is needed to ensure that the item and/or service specified is the one
being proposed for purchase. This review generally will take place
prior to the time the specification is incorporated into a solicitation
document. However, if the grantee or subgrantee desires to have the
review accomplished after a solication has been developed, the awarding
agency may still review the specifications, with such review usually
limited to the technical aspects of the proposed purchase.
(2) Grantees and subgrantees must on request make available for
awarding agency pre-award review procurement documents, such as requests
for proposals or invitations for bids, independent cost estimates, etc.,
when:
(i) A grantee's or subgrantee's procurement procedures or operation
fails to comply with the procurement standards in this seciton; or
(ii) The procurement is expected to exceed $25,000 and is to be
awarded without competition or only one bid or offer is received in
response to a solicitation; or
(iii) The procurement, which is expected to exceed $25,000, specifies
a ''brand name'' product; or
(iv) The proposed award over $25,000 is to be awarded to other than
the apparent low bidder under a sealed bid procurement; or
(v) A proposed contract modification changes the scope of a contract
or increases the contract amount by more than $25,000.
(3) A grantee or subgrantee will be exempt from the pre-award review
in paragraph (g)(2) of this section if the awarding agency determines
that its procurement systems comply with the standards of this section.
(i) A grantee or subgrantee may request that its procurement system
be reviewed by the awarding agency to determine whether its system meets
these standards in order for its system to be certified. Generally,
these reviews shall occur where there is a continuous high-dollar
funding, and third-party contracts are awarded on a regular basis;
(ii) A grantee or subgrantee may self-certify its procurement system.
Such self-certification shall not limit the awarding agency's right to
survey the system. Under a self-certification procedure, awarding
agencies may wish to rely on written assurances from the grantee or
subgrantee that it is complying with these standards. A grantee or
subgrantee will cite specific procedures, regulations, standards, etc.,
as being in compliance with these requirements and have its system
available for review.
(h) Bonding requirements. For construction or facility improvement
contracts or subconstracts exceeding $100,000, the awarding agency may
accept the bonding policy and requirements of the grantee or subgrantee
provided the awarding agency has made a determination that the awarding
agency's interest is adequately protected. If such a determination has
not been made, the minimum requirements shall be as follows:
(1) A bid guarantee from each bidder equivalent to five percent of
the bid price. The ''bid guarantee'' shall consist of a firm commitment
such as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder will, upon acceptance of
his bid, execute such contractual documents as may be required within
the time specified.
(2) A performance bond on the part of the contractor for 100 percent
of the contract price. A ''performance bond'' is one executed in
connection with a contract to secure fulfillment of all the contractor's
obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of
the contract price. A ''payment bond'' is one executed in connection
with a contract to assure payment as required by law of all persons
supplying labor and material in the execution of the work provided for
in the contract.
(i) Contract provisions. A grantee's and subgrantee's contracts must
contain provisions in paragraph (i) of this section. Federal agencies
are permitted to require changes, remedies, changed conditions, access
and records retention, suspension of work, and other clauses approved by
the Office of Procurement Policy.
(1) Administrative, contractual, or legal remedies in instances where
contractors violate or breach contract terms, and provide for such
sanctions and penalties as may be appropriate (Contracts other than
small purchases).
(2) Termination for cause and for convenience by the grantee or
subgrantee including the manner by which it will be effected and the
basis for settlement (All contracts in excess of $10,000).
(3) Compliance with Executive Order 11246 of September 24, 1965
entitled ''Equal Employment Opportunity,'' as amended by Executive Order
11375 of October 13, 1967 and as supplemented in Department of Labor
regulations (41 CFR Chapter 60) (All construction contracts awarded in
excess of $10,000 by grantees and their contractors or subgrantees).
(4) Compliance with the Copeland ''Anti-Kickback'' Act (18 U.S.C.
874) as supplemented in Department of Labor regulations (29 CFR Part 3)
(All contracts and subgrants for construction or repair).
(5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) as
supplemented by Department of Labor regulations (29 CFR Part 5)
(Construction contracts in excess of $2,000 awarded by grantees and
subgrantees when required by Federal grant program legislation).
(6) Compliance with sections 103 and 107 of the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by
Department of Labor regulations (29 CFR Part 5). (Construction
contracts awarded by grantees and subgrantees in excess of $2,000, and
in excess of $2,500 for other contracts which involve the employment of
mechanics or laborers)
(7) Notice of awarding agency requirements and regulations pertaining
to reporting.
(8) Notice of awarding agency requirements and regulations pertaining
to patent rights with respect to any discovery or invention which arises
or is developed in the course of or under such contract.
(9) Awarding agency requirements and regulations pertaining to
copyrights and rights in data.
(10) Access by the grantee, the subgrantee, the Federal grantor
agency, the Comptroller General of the United States, or any of their
duly authorized representatives to any books, documents, papers, and
records of the contractor which are directly pertinent to that specific
contract for the purpose of making audit, examination, excerpts, and
transcriptions.
(11) Retention of all required records for three years after grantees
or subgrantees make final payments and all other pending matters are
closed.
(12) Compliance with all applicable standards, orders, or
requirements issued under section 306 of the Clear Air Act (42 U.S.C.
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive
Order 11738, and Environmental Protection Agency regulations (40 CFR
Part 15) (Contracts, subcontracts, and subgrants of amounts in excess of
$100,000).
(13) Mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act (Pub. L.
94-163).
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6201, Feb. 21, 1992)
32 CFR 33.37 Subgrants.
(a) States. States shall follow state law and procedures when
awarding and administering subgrants (whether on a cost reimbursement or
fixed amount basis) of financial assistance to local and Indian tribal
governments. States shall:
(1) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
(2) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statute and regulation;
(3) Ensure that a provision for compliance with 33.42 is placed in
every cost reimbursement subgrant; and
(4) Conform any advances of grant funds to subgrantees substantially
to the same standards of timing and amount that apply to cash advances
by Federal agencies.
(b) All other grantees. All other grantees shall follow the
provisions of this part which are applicable to awarding agencies when
awarding and administering subgrants (whether on a cost reimbursement or
fixed amount basis) of financial assistance to local and Indian tribal
governments. Grantees shall:
(1) Ensure that every subgrant includes a provision for compliance
with this part;
(2) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
and
(3) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statutes and regulations.
(c) Exceptions. By their own terms, certain provisions of this part
do not apply to the award and administration of subgrants:
(1) Section 33.10;
(2) Section 33.11;
(3) The letter-of-credit procedures specified in Treasury Regulations
at 31 CFR part 205, cited in 33.21; and
(4) Section 33.50.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6201, Feb. 21, 1992)
32 CFR 33.37 Reports, Records, Retention, and Enforcement
32 CFR 33.40 Monitoring and reporting program performance.
(a) Monitoring by grantees. Grantees are responsible for managing
the day-to-day operations of grant and subgrant supported activities.
Grantees must monitor grant and subgrant supported activities to assure
compliance with applicable Federal requirements and that performance
goals are being achieved. Grantee monitoring must cover each program,
function or activity.
(b) Nonconstruction performance reports. The Federal agency may, if
it decides that performance information available from subsequent
applications contains sufficient information to meet its programmatic
needs, require the grantee to submit a performance report only upon
expiration or termination of grant support. Unless waived by the
Federal agency this report will be due on the same date as the final
Financial Status Report.
(1) Grantees shall submit annual performance reports unless the
awarding agency requires quarterly or semi-annual reports. However,
performance reports will not be required more frequently than quarterly.
Annual reports shall be due 90 days after the grant year, quarterly or
semi-annual reports shall be due 30 days after the reporting period.
The final performance report will be due 90 days after the expiration or
termination of grant support. If a justified request is submitted by a
grantee, the Federal agency may extend the due date for any performance
report. Additionally, requirements for unnecessary performance reports
may be waived by the Federal agency.
(2) Performance reports will contain, for each grant, brief
information on the following:
(i) A comparison of actual accomplishments to the objectives
established for the period. Where the output of the project can be
quantified, a computation of the cost per unit of output may be required
if that information will be useful.
(ii) The reasons for slippage if established objectives were not met.
(iii) Additional pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(3) Grantees will not be required to submit more than the original
and two copies of performance reports.
(4) Grantees will adhere to the standards in this section in
prescribing performance reporting requirements for subgrantees.
(c) Construction performance reports. For the most part, on-site
technical inspections and certified percentage-of-completion data are
relied on heavily by Federal agencies to monitor progress under
construction grants and subgrants. The Federal agency will require
additional formal performance reports only when considered necessary,
and never more frequently than quarterly.
(d) Significant developments. Events may occur between the scheduled
performance reporting dates which have significant impact upon the grant
or subgrant supported activity. In such cases, the grantee must inform
the Federal agency as soon as the following types of conditions become
known:
(1) Problems, delays, or adverse conditions which will materially
impair the ability to meet the objective of the award. This disclosure
must include a statement of the action taken, or contemplated, and any
assistance needed to resolve the situation.
(2) Favorable developments which enable meeting time schedules and
objectives sooner or at less cost than anticipated or producing more
beneficial results than originally planned.
(e) Federal agencies may make site visits as warranted by program
needs.
(f) Waivers, extensions. (1) Federal agencies may waive any
performance report required by this part if not needed.
(2) The grantee may waive any performance report from a subgrantee
when not needed. The grantee may extend the due date for any
performance report from a subgrantee if the grantee will still be able
to meet its performance reporting obligations to the Federal agency.
32 CFR 33.41 Financial reporting.
(a) General. (1) Except as provided in paragraphs (a) (2) and (5) of
this section, grantees will use only the forms specified in paragraphs
(a) through (e) of this section, and such supplementary or other forms
as may from time to time be authorized by OMB, for:
(i) Submitting financial reports to Federal agencies, or
(ii) Requesting advances or reimbursements when letters of credit are
not used.
(2) Grantees need not apply the forms prescribed in this section in
dealing with their subgrantees. However, grantees shall not impose more
burdensome requirements on subgrantees.
(3) Grantees shall follow all applicable standard and supplemental
Federal agency instructions approved by OMB to the extend required under
the Paperwork Reduction Act of 1980 for use in connection with forms
specified in paragraphs (b) through (e) of this section. Federal
agencies may issue substantive supplementary instructions only with the
approval of OMB. Federal agencies may shade out or instruct the grantee
to disregard any line item that the Federal agency finds unnecessary for
its decisionmaking purposes.
(4) Grantees will not be required to submit more than the original
and two copies of forms required under this part.
(5) Federal agencies may provide computer outputs to grantees to
expedite or contribute to the accuracy of reporting. Federal agencies
may accept the required information from grantees in machine usable
format or computer printouts instead of prescribed forms.
(6) Federal agencies may waive any report required by this section if
not needed.
(7) Federal agencies may extend the due date of any financial report
upon receiving a justified request from a grantee.
(b) Financial Status Report -- (1) Form. Grantees will use Standard
Form 269 or 269A, Financial Status Report, to report the status of funds
for all nonconstruction grants and for construction grants when required
in accordance with 33.41(e)(2)(iii).
(2) Accounting basis. Each grantee will report program outlays and
program income on a cash or accrual basis as prescribed by the awarding
agency. If the Federal agency requires accrual information and the
grantee's accounting records are not normally kept on the accural basis,
the grantee shall not be required to convert its accounting system but
shall develop such accrual information through and analysis of the
documentation on hand.
(3) Frequency. The Federal agency may prescribe the frequency of the
report for each project or program. However, the report will not be
required more frequently than quarterly. If the Federal agency does not
specify the frequency of the report, it will be submitted annually. A
final report will be required upon expiration or termination of grant
support.
(4) Due date. When reports are required on a quarterly or semiannual
basis, they will be due 30 days after the reporting period. When
required on an annual basis, they will be due 90 days after the grant
year. Final reports will be due 90 days after the expiration or
termination of grant support.
(c) Federal Cash Transactions Report -- (1) Form. (i) For grants
paid by letter or credit, Treasury check advances or electronic transfer
of funds, the grantee will submit the Standard Form 272, Federal Cash
Transactions Report, and when necessary, its continuation sheet,
Standard Form 272a, unless the terms of the award exempt the grantee
from this requirement.
(ii) These reports will be used by the Federal agency to monitor cash
advanced to grantees and to obtain disbursement or outlay information
for each grant from grantees. The format of the report may be adapted
as appropriate when reporting is to be accomplished with the assistance
of automatic data processing equipment provided that the information to
be submitted is not changed in substance.
(2) Forecasts of Federal cash requirements. Forecasts of Federal
cash requirements may be required in the ''Remarks'' section of the
report.
(3) Cash in hands of subgrantees. When considered necessary and
feasible by the Federal agency, grantees may be required to report the
amount of cash advances in excess of three days' needs in the hands of
their subgrantees or contractors and to provide short narrative
explanations of actions taken by the grantee to reduce the excess
balances.
(4) Frequency and due date. Grantees must submit the report no later
than 15 working days following the end of each quarter. However, where
an advance either by letter of credit or electronic transfer of funds is
authorized at an annualized rate of one million dollars or more, the
Federal agency may require the report to be submitted within 15 working
days following the end of each month.
(d) Request for advance or reimbursement -- (1) Advance payments.
Requests for Treasury check advance payments will be submitted on
Standard Form 270, Request for Advance or Reimbursement. (This form
will not be used for drawdowns under a letter of credit, electronic
funds transfer or when Treasury check advance payments are made to the
grantee automatically on a predetermined basis.)
(2) Reimbursements. Requests for reimbursement under nonconstruction
grants will also be submitted on Standard Form 270. (For reimbursement
requests under construction grants, see paragraph (e)(1) of this
section.)
(3) The frequency for submitting payment requests is treated in
33.41(b)(3).
(e) Outlay report and request for reimbursement for construction
programs -- (1) Grants that support construction activities paid by
reimbursement method. (i) Requests for reimbursement under construction
grants will be submitted on Standard Form 271, Outlay Report and Request
for Reimbursement for Construction Programs. Federal agencies may,
however, prescribe the Request for Advance or Reimbursement form,
specified in 33.41(d), instead of this form.
(ii) The frequency for submitting reimbursement requests is treated
in 33.41(b)(3).
(2) Grants that support construction activities paid by letter of
credit, electronic funds transfer or Treasury check advance. (i) When a
construction grant is paid by letter of credit, electronic funds
transfer or Treasury check advances, the grantee will report its outlays
to the Federal agency using Standard Form 271, Outlay Report and Request
for Reimbursement for Construction Programs. The Federal agency will
provide any necessary special instruction. However, frequency and due
date shall be governed by 33.41(b) (3) and (4).
(ii) When a construction grant is paid by Treasury check advances
based on periodic requests from the grantee, the advances will be
requested on the form specified in 33.41(d).
(iii) The Federal agency may substitute the Financial Status Report
specified in 33.41(b) for the Outlay Report and Request for
Reimbursement for Construction Programs.
(3) Accounting basis. The accounting basis for the Outlay Report and
Request for Reimbursement for Construction Programs shall be governed by
33.41(b)(2).
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6201, Feb. 21, 1992)
32 CFR 33.42 Retention and access requirements for records.
(a) Applicability. (1) This section applies to all financial and
programmatic records, supporting documents, statistical records, and
other records of grantees or subgrantees which are:
(i) Required to be maintained by the terms of this part, program
regulations or the grant agreement, or
(ii) Otherwise reasonably considered as pertinent to program
regulations or the grant agreement.
(2) This section does not apply to records maintained by contractors
or subcontractors. For a requirement to place a provision concerning
records in certain kinds of contracts, see 33.36(i)(10).
(b) Length of retention period. (1) Except as otherwise provided,
records must be retained for three years from the starting date
specified in paragraph (c) of this section.
(2) If any litigation, claim, negotiation, audit or other action
involving the records has been started before the expiration of the
3-year period, the records must be retained until completion of the
action and resolution of all issues which arise from it, or until the
end of the regular 3-year period, whichever is later.
(3) To avoid duplicate recordkeeping, awarding agencies may make
special arrangements with grantees and subgrantees to retain any records
which are continuously needed for joint use. The awarding agency will
request transfer of records to its custody when it determines that the
records possess long-term retention value. When the records are
transferred to or maintained by the Federal agency, the 3-year retention
requirement is not applicable to the grantee or subgrantee.
(c) Starting date of retention period -- (1) General. When grant
support is continued or renewed at annual or other intervals, the
retention period for the records of each funding period starts on the
day the grantee or subgrantee submits to the awarding agency its single
or last expenditure report for that period. However, if grant support
is continued or renewed quarterly, the retention period for each year's
records starts on the day the grantee submits its expenditure report for
the last quarter of the Federal fiscal year. In all other cases, the
retention period starts on the day the grantee submits its final
expenditure report. If an expenditure report has been waived, the
retention period starts on the day the report would have been due.
(2) Real property and equipment records. The retention period for
real property and equipment records starts from the date of the
disposition or replacement or transfer at the direction of the awarding
agency.
(3) Records for income transactions after grant or subgrant support.
In some cases grantees must report income after the period of grant
support. Where there is such a requirement, the retention period for
the records pertaining to the earning of the income starts from the end
of the grantee's fiscal year in which the income is earned.
(4) Indirect cost rate proposals, cost allocations plans, etc. This
paragraph applies to the following types of documents, and their
supporting records: indirect cost rate computations or proposals, cost
allocation plans, and any similar accounting computations of the rate at
which a particular group of costs is chargeable (such as computer usage
chargeback rates or composite fringe benefit rates).
(i) If submitted for negotiation. If the proposal, plan, or other
computation is required to be submitted to the Federal Government (or to
the grantee) to form the basis for negotiation of the rate, then the
3-year retention period for its supporting records starts from the date
of such submission.
(ii) If not submitted for negotiation. If the proposal, plan, or
other computation is not required to be submitted to the Federal
Government (or to the grantee) for negotiation purposes, then the 3-year
retention period for the proposal plan, or computation and its
supporting records starts from end of the fiscal year (or other
accounting period) covered by the proposal, plan, or other computation.
(d) Substitution of microfilm. Copies made by microfilming,
photocopying, or similar methods may be substituted for the original
records.
(e) Access to records -- (1) Records of grantees and subgrantees.
The awarding agency and the Comptroller General of the United States, or
any of their authorized representatives, shall have the right of access
to any pertinent books, documents, papers, or other records of grantees
and subgrantees which are pertinent to the grant, in order to make
audits, examinations, excerpts, and transcripts.
(2) Expiration of right of access. The rights of access in this
section must not be limited to the required retention period but shall
last as long as the records are retained.
(f) Restrictions on public access. The Federal Freedom of
Information Act (5 U.S.C. 552) does not apply to records Unless required
by Federal, State, or local law, grantees and subgrantees are not
required to permit public access to their records.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6201, Feb. 21, 1992)
32 CFR 33.43 Enforcement.
(a) Remedies for noncompliance. If a grantee or subgrantee
materially fails to comply with any term of an award, whether stated in
a Federal statute or regulation, an assurance, in a State plan or
application, a notice of award, or elsewhere, the awarding agency may
take one or more of the following actions, as appropriate in the
circumstances:
(1) Temporarily withhold cash payments pending correction of the
deficiency by the grantee or subgrantee or more severe enforcement
action by the awarding agency,
(2) Disallow (that is, deny both use of funds and matching credit
for) all or part of the cost of the activity or action not in
compliance,
(3) Wholly or partly suspend or terminate the current award for the
grantee's or subgrantee's program,
(4) Withhold further awards for the program, or
(5) Take other remedies that may be legally available.
(b) Hearings, appeals. In taking an enforcement action, the awarding
agency will provide the grantee or subgrantee an opportunity for such
hearing, appeal, or other administrative proceeding to which the grantee
or subgrantee is entitled under any statute or regulation applicable to
the action involved.
(c) Effects of suspension and termination. Costs of grantee or
subgrantee resulting from obligations incurred by the grantee or
subgrantee during a suspension or after termination of an award are not
allowable unless the awarding agency expressly authorizes them in the
notice of suspension or termination or subsequently. Other grantee or
subgrantee costs during suspension or after termination which are
necessary and not reasonably avoidable are allowable if:
(1) The costs result from obligations which were properly incurred by
the grantee or subgrantee before the effective date of suspension or
termination, are not in anticipation of it, and, in the case of a
termination, are noncancellable, and,
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude grantee or subgrantee from being subject to
''Debarment and Suspension'' under E.O. 12549 (see 33.35).
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6201, Feb. 21, 1992)
32 CFR 33.44 Termination for convenience.
Except as provided in 33.43 awards may be terminated in whole or in
part only as follows:
(a) By the awarding agency with the consent of the grantee or
subgrantee in which case the two parties shall agree upon the
termination conditions, including the effective date and in the case of
partial termination, the portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the
awarding agency, setting forth the reasons for such termination, the
effective date, and in the case of partial termination, the portion to
be terminated. However, if, in the case of a partial termination, the
awarding agency determines that the remaining portion of the award will
not accomplish the purposes for which the award was made, the awarding
agency may terminate the award in its entirety under either 33.43 or
paragraph (a) of this section.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6201, Feb. 21, 1992)
32 CFR 33.44 Subpart D -- After-The-Grant Requirements
32 CFR 33.50 Closeout.
(a) General. The Federal agency will close out the award when it
determines that all applicable administrative actions and all required
work of the grant has been completed.
(b) Reports. Within 90 days after the expiration or termination of
the grant, the grantee must submit all financial, performance, and other
reports required as a condition of the grant. Upon request by the
grantee, Federal agencies may extend this timeframe. These may include
but are not limited to:
(1) Final performance or progress report.
(2) Financial Status Report (SF 269) or Outlay Report and Request for
Reimbursement for Construction Programs (SF-271) (as applicable).
(3) Final request for payment (SF-270) (if applicable).
(4) Invention disclosure (if applicable).
(5) Federally-owned property report:
In accordance with 33.32(f), a grantee must submit an inventory of
all federally owned property (as distinct from property acquired with
grant funds) for which it is accountable and request disposition
instructions from the Federal agency of property no longer needed.
(c) Cost adjustment. The Federal agency will, within 90 days after
receipt of reports in paragraph (b) of this section, make upward or
downward adjustments to the allowable costs.
(d) Cash adjustments. (1) The Federal agency will make prompt
payment to the grantee for allowable reimbursable costs.
(2) The grantee must immediately refund to the Federal agency any
balance of unobligated (unencumbered) cash advanced that is not
authorized to be retained for use on other grants.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6201, Feb. 21, 1992)
32 CFR 33.51 Later disallowances and adjustments.
The closeout of a grant does not affect:
(a) The Federal agency's right to disallow costs and recover funds on
the basis of a later audit or other review;
(b) The grantee's obligation to return any funds due as a result of
later refunds, corrections, or other transactions;
(c) Records retention as required in 33.42;
(d) Property management requirements in 33.31 and 33.32; and
(e) Audit requirements in 33.26.
(53 FR 8070 and 8087, Mar. 11, 1988. Redesignated and amended at 57
FR 6199 and 6201, Feb. 21, 1992)
32 CFR 33.52 Collection of amounts due.
(a) Any funds paid to a grantee in excess of the amount to which the
grantee is finally determined to be entitled under the terms of the
award constitute a debt to the Federal Government. If not paid within a
reasonable period after demand, the Federal agency may reduce the debt
by:
(1) Making an adminstrative offset against other requests for
reimbursements,
(2) Withholding advance payments otherwise due to the grantee, or
(3) Other action permitted by law.
(b) Except where otherwise provided by statutes or regulations, the
Federal agency will charge interest on an overdue debt in accordance
with the Federal Claims Collection Standards (4 CFR Ch. II). The date
from which interest is computed is not extended by litigation or the
filing of any form of appeal.
32 CFR 33.52 Subpart E -- Entitlement (Reserved)
32 CFR 33.52 SUBCHAPTER C -- PERSONNEL, MILITARY AND CIVILIAN
Cross Reference: For a revision of Standards for a Merit System of
Personnel Administration, see 5 CFR part 900.
32 CFR 33.52 PART 40 -- STANDARDS OF CONDUCT
Sec.
40.1 Reissuance and purpose.
40.2 Applicability and scope.
40.3 Definitions.
40.4 Policy.
40.5 Responsibilities.
40.6 Procedures.
40.7 Digest of laws.
40.8 Code of ethics for government service.
40.9 Statement of affiliations and financial interests (DD Form
1555).
40.10 Financial disclosure report (SF 278).
40.11 Statement of Employment -- Regular Retired Officers (DD Form
1357).
40.12 Reporting of DoD and defense related employment (DD Form 1787).
40.13 Reporting of potential employment contracts.
40.14 Employment restrictions on certain former DoD officials.
40.15 Administrative enforcement provisions.
Authority: E.O. 11222; Pub. L. 87-651; 3 U.S.C. 301.
Source: 52 FR 23268, June 19, 1987, unless otherwise noted.
32 CFR 40.1 Reissuance and purpose.
(a) This part reissues 32 CFR Part 40 after 32 CFR Part 40 was
consolidated with 32 CFR Part 166, and implements Pub. L. 95-521, 5 CFR
Parts 734 and 735, E.O. 11222, 10 U.S.C. 2397, 2397a, 2397b, and 2397c.
(b) This part prescribes standards of conduct required of all DoD
personnel, regardless of assignment. It establishes criteria and
procedures for reports required of certain former and retired military
officers and former DoD civilian officers and employees who are
presently employed by defense contractors, and former officers and
employees of defense contractors presently employed by the Department of
Defense.
(c) Penalties for violations of these standards include the full
range of statutory and regulatory sanctions for civilian and military
personnel.
32 CFR 40.2 Applicability and scope.
This part applies to all DoD personnel and to the Office of the
Secretary of Defense (OSD), the Military Departments, the Organization
of the Joint Chiefs of Staff (OJCS), the Unified and Specified Commands,
the Inspector General, and the Defense Agencies (hereafter referred to
collectively as ''DoD Components'') including nonappropriated fund
activities. The reporting procedures on DoD and defense related
employment also apply to certain former officers and employees of DoD
Components, as indicated in this part.
32 CFR 40.3 Definitions.
Compensation. Includes any payment, gift, benefit, reward, favor, or
gratuity which is provided directly or indirectly for services rendered
by the person accepting such payment and which has a fair market value
in excess of $250. Compensation shall be deemed indirectly received if
it is paid to an entity other than the individual, in exchange for
services performed by the individual.
Defense Contractor. Any individual, firm, corporation, partnership,
association, or other legal entity that enters into a contract directly
with the Department of Defense to furnish services, supplies, or both,
including construction, to the Department of Defense. Subcontractors
are excluded, as are subsidiaries unless they are separate legal
entities that contract directly with the Department of Defense in their
own names. Foreign governments or representatives of foreign
governments that are engaged in selling to the Department of Defense are
defense contractors when acting in that context.
Designated Agency Ethics Official (DAEO). An officer or employee of
a component who has been appointed, pursuant to DoD Component
procedures, to administer the provisions of the Ethics in Government
Act. The DAEO for the Office of the Secretary of Defense is the General
Counsel.
DoD Component. The Office of the Secretary of Defense (OSD), the
Military Departments, the Organization of the Joint Chiefs of Staff
(OJCS), the Unified and Specified Commands, the Inspector General, and
the Defense Agencies, including nonappropriated fund activities. The
term does not refer to offices, divisions, or sections that are part of
a larger Defense Agency.
DoD personnel. All civilian officers and employees, including
special Government employees, of all offices, agencies, and DoD
departments (including non-appropriated fund activities), all Regular
and Reserve component officers (commissioned and warrant) and enlisted
members of the Army, Navy, Air Force, and Marine Corps on active duty,
and Reserve component officers (commissioned and warrant) and enlisted
members on inactive duty for training. This definition includes
professors and cadets of the Military Service academies.
Employment (and all variations). Except where expressly defined
differently, this term is used in a broad sense to include services
performed as a consultant, lawyer, agent or other kind of assistant,
part-time or full-time, either for a defense contractor or a DoD
Component.
Former military officer. Reserve officers not on active duty are
included in the meaning of this phrase.
Gratuity. Any gift, favor, entertainment, hospitality,
transportation, loan, any other tangible item, and any intangible
benefits, including discounts, passes, and promotional vendor training,
given or extended to or on behalf of DoD personnel, their immediate
families, or households, for which fair market value is not paid by the
recipient or the U.S. Government.
Honorarium (and all variations). A payment of money or anything of
value received by an officer or employee of the Federal Government, if
it is accepted as consideration for an appearance, speech, or article.
The term does not include payment for or provision of actual travel and
subsistence, including transportation accommodations, and meals of an
officer or employee and spouse or aide, and does not include amounts
paid or incurred for any agent's fees or commissions.
Inside information. Information generally not available to the
public and obtained by reason of one's official DoD duties or position.
See 32 CFR Part 286.
Major defense contractor. Any business entity which, during the
fiscal year preceding the fiscal year in which compensation was first
received, was a defense contractor that received defense contracts in a
total amount equal to or greater than $10,000,000 (see 40.13).
Major defense system. A combination of elements that will function
together to produce the capability required to fulfill a mission need.
Elements may include hardware, equipment, software, or any combination
thereof, but excludes construction or other improvements to real
property. A system shall be considered a major defense system if
(a) The Department of Defense is responsible for the system and the
total expenditures, for research, development, test, and evaluation for
the system are estimated to exceed $75,000,000 (based on fiscal year
1980 constant dollars) or the eventual total expenditure for procurement
exceeds $300,000,000 (based on fiscal year 1980 constant dollars); or
(b) The system is designated a ''major system'' by the head of the
agency responsible for the system. See 10 U.S.C. 2302.
Personal commercial solicitation. Any effort to contract an
individual to conduct or transact matters involving business, finance,
or commerce. This does not include off-duty employment of DoD personnel
as employees in retail stores. See 32 CFR Part 43.
Procurement related function (or ''procurement function''). Any
function relating to:
(a) The negotiation, award, administration, or approval or a
contract;
(b) The selection of a contractor;
(c) The approval of a change in a contract;
(d) The performance of quality assurance, operational and
developmental testing, the approval of payment, or auditing under a
contract; or
(e) The management of a procurement program.
Retired military officer. Any officer entitled to receive military
retired pay, even though such pay may be waived.
Special government employee. A person who is retained designated,
appointed, or employed to perform, with or without compensation, for a
period not to exceed 130 days during any period of 365 consecutive days,
temporary duties either on a full-time or intermittent basis. The term
also includes a Reserve officer who is serving on active duty
involuntarily or for training for any length of time, and one who is
serving voluntarily on extended active duty for 130 days or less. It
does not include enlisted personnel.
(52 FR 23268, June 19, 1987, as amended at 52 FR 29844, Aug. 12,
1987)
32 CFR 40.4 Policy.
(a) General requirements. (1) Government service or employment is a
public trust requiring DoD personnel to place loyalty to country,
ethical principles, and the law above private gain and other interests.
DoD personnel shall not make or recommend any expenditure of funds or
take or recommend any action known or believed to be in violation of
U.S. laws, Executive orders, or applicable directives, instructions, or
regulations.
(2) DoD personnel shall become familiar with the scope of, authority
for, and limitations of the activities for which they are responsible.
DoD personnel also shall acquire a working knowledge of appropriate
statutory standards of conduct prohibitions and restrictions. The most
commonly encountered of these provisions, which include conflict of
interest laws, general post employment restrictions, laws particularly
applicable to retired regular officers, and other laws applicable to all
DoD personnel, are summarized in 40.7. Except where expressly stated
otherwise in the following sections, the standards of conduct set forth
in this part apply to all DoD personnel, even though some standards may
have their source in laws that only apply to some DoD personnel.
(3) If the propriety of a proposed action or decision is in question
because it may be contrary to law or regulation, DoD personnel shall
consult DoD Component legal counsel, or, if appropriate, the DoD
Component's Designated Agency Ethics Official (DAEO) or designee for
guidance. This is intended to promote the proper and lawful conduct of
DoD programs and activities.
(4) Practices that may be accepted in the private business world are
not necessarily acceptable for DoD personnel. Sound judgment must be
exercised. All personnel must be prepared to account fully for the
manner in which that judgment has been exercised.
(5) DoD personnel shall adhere strictly to the DoD program of equal
opportunity regardless or race, color, religion, sex, age, national
origin, or handicap in accordance with Parts 191 and 56 of this title.
(6) DoD personnel shall avoid any action, whether or not specifically
prohibited by this part that might result in or reasonably be expected
to create the appearance of any of the following:
(i) Using public office for private gain,
(ii) Giving preferential treatment to any person or entity,
(iii) Impeding Government efficiency or economy,
(iv) Losing independence or impartiality,
(v) Making a Government decision outside official channels,
(vi) Affecting adversely the confidence of the public in the
integrity of the Government.
(7) In accordance with Pub. L. 96-303 DoD Components shall display
copies of the Code of Ethics for Government Service in appropriate areas
of Federal buildings in which at least 20 persons are regularly employed
as civilian employees. See 40.8.
(b) Conflicts of interest prohibitions -- (1) Affiliations and
financial interests. DoD personnel shall not engage in any personal,
business, or professional activity, nor hold direct or indirect
financial interest that conflicts with the public interests of the
United States related to the duties and responsibilities of their DoD
positions. For the purpose of this prohibition, the private financial
interests of a spouse, minor child, and household members are treated as
private financial interests of the DoD personnel.
(2) Using ''inside information.'' DoD personnel shall not engage in
any personal, business, or professional activity, nor enter into any
financial transaction that involves the direct or indirect use of
''inside information'' for personal advantage to themselves or others.
This prohibition against ''inside information'' obtained while at the
Department of Defense continues even after the individual terminates
Government service or employment. See 40.3.
(3) Using official DoD position. DoD personnel shall not use their
DoD positions to induce, coerce, nor in any manner influence any person,
including subordinates, to provide any personal benefit, financial or
otherwise, to themselves or others.
(i) Contributions of gifts to superiors. DoD personnel shall not
solicit a contribution from other DoD personnel for a gift to an
official superior, make a contribution or a gift to an official
superior, or accept a gift or contribution from subordinate DoD
personnel. This prohibition also applies to gifts or contributions to
immediate family members of an official superior. This paragraph does
not prohibit voluntary gifts of reasonable value or voluntary
contributions of nominal amounts (or acceptance thereof) on personal
occasions such as marriage, transfer out of the chain of command,
illiness, or retirement, Provided That any gift acquired with such
contributions does not exceed a reasonable value under the
circumstances.
(ii) Use of civilian and military titles. DoD personnel shall not
use their official titles or positions in connection with any commercial
enterprise or to endorse any commercial product, subject to the
following:
(A) Such personnel may make speeches or publish books or articles
that identify them by reference to their title or position, provided
that the material is approved for public release in accordance with DoD
procedures. See DoD Directive 5230.9.1
(B) Retired military personnel and members of Reserve components not
on active duty may use their military titles in connection with
commercial enterprises, provided they indicate their retired or reserve
status. However, the use of military titles is prohibited if it casts
discredit on any DoD Component or gives the appearance of sponsorship,
sanction, endorsement, or approval by any DoD Component. Overseas
commanders of DoD Components may restrict further the use of titles,
including use by retired military personnel and members of Reserve
components not on active duty, in overseas areas to avoid confusing
foreign governments or foreign nationals on the status of such
individuals.
(iii) Endorsements. The high visibility of DoD officials generates
requests from charitable and nonprofitable organizations to use an
official's name and title in conjunction with fund-raising activities.
The use of names and titles of DoD officials, even regarding
fund-raising activities of charitable organizations, may give an
improper impression that the Department of Defense endorses the
activities of a particular organization, thereby resulting in
unauthorized assistance for the organization or sponsors of the
activities. The presence of DoD officials may be sought, under the
guise of bestowing awards upon the official, to promote attendance at
programs. DoD officials shall not allow the use of their names or
titles in connection with charitable or non-profit organizations,
subject to the following:
(A) The Department of Defense may assist only those charitable
programs administered by the Office of Personnel Management under its
delegation from the President and those other programs authorized by
regulations of the DoD Components. See DoD Directive 5035.1. /1/
(B) This prohibition does not preclude speeches before such
organizations by DoD officials if the speech is designed to express an
official position in a public forum.
(C) This prohibition does not preclude volunteer efforts on behalf of
charitable or nonprofit organizations by individuals who do not use
their official titles in relation to solicitations and who do not
solicit from individuals or entities with whom they do business in their
official capacity. See DoD Directive 5410.18 and 5410.19.
(iv) Relationship with Defense Contractor. DoD personnel shall not
use the Department's relationship with defense contractors or potential
defense contractors to induce, coerce, or seek any favors or actions
other than those authorized by the contract, or by law.
(4) Statements or commitments with respect to award of contracts.
DoD personnel other than contracting officers shall not make any
commitment or promise relating to award of a contract nor make any
representation that reasonably may be construed as such a commitment.
(5) Membership in associations. DoD personnel who are members or
officers of nongovernment associations or organizations shall not engage
in activities on behalf of the association or organization that are
incompatible with their official DoD positions. See 32 CFR Parts 91 and
237a.
(6) Commercial dealings involving DoD personnel. To eliminate the
appearance of coercion, intimidation, or pressure from rank, grade, or
position, DoD personnel shall not make personal commercial solicitations
or solicited sales to DoD personnel who are junior in rank or grade, or
their family members, at any time, on or off-duty.
(i) This prohibition includes, but is not limited to, the
solicitation and sale of insurance, stocks, mutual funds, real estate,
and any other commodities, goods, or services.
(ii) This prohibition does not include the sale or lease, by a
person, of a privately-owned former residence or of personal property
not held for commercial or business purposes.
(7) Assignment of reserves for training. DoD personnel who assign
reserves for training shall not assign them to duties in which they will
obtain information that they or their private sector employers may use
to gain unfair advantage over civilian competitors. Reservists must
disclose to superiors or assignment personnel information necessary to
ensure that no conflict exists between their duty assignment and their
private interests. Reservists on promotion boards shall not participate
in promotion decisions that may directly or predictably affect their
private financial interests.
(8) Dealing with personnel. DoD personnel shall not knowingly deal,
on behalf of the Government, with present of former military or civilian
personnel of the Government whose participation in the transaction
violates a statute described in 40.7 or any provision or policy set
forth in this part.
(9) Honoraria. DoD personnel shall not accept honoraria or other
salary supplementation for performance of official duties. See
40.7(a)(4). DoD personnel shall not suggest charitable contributions in
place of such honoraria. Even when acting in a personal rather than
official capacity, there are the following restrictions:
(i) DoD personnel shall not accept an honorarium of more than $2,000
(excluding expenses for travel, subsistence and agents' fees or
commissions) for any appearance, speech, or article made in a personal
capacity. See 2 U.S.C. 441i.
(ii) DoD personnel shall not accept an honorarium from groups doing
business with the Department of Defense if such acceptance may result in
a conflict of interest or the appearance of a conflict of interest.
Before accepting any honorarium, DoD personnel shall consult their DAEO
or designee.
(10) Pursuit of employment. DoD personnel shall not participate,
personally and substantially, on behalf of the Government in any
particular matter in which an organization with which they are pursuing
employment, or have any arrangement concerning future employment, has a
financial interest. ''Pursuing employment'' includes the sending of
letters or re1sume1s in pursuit of employment, as well as discussions
concerning employment. See 40.7 (a)(3) and (5).
(i) DoD personnel who have any contact regarding future employment
with an entity shall not participate in any official action involving
the entity. Written and formal disqualification shall be required.
Disqualification statements shall be filed with the individual's
supervisor or superior, the individual's immediate subordinates, and the
DAEO or designee.
(A) Disqualification statements need not be filed if the discussions
are with entities not having, nor expected to have, business with the
DoD individual or office.
(B) Disqualifications need not be filed if the first contact is
initiated by the business entity and the DoD personnel terminates
discussion immediately.
(C) A disqualification may be withdrawn at such time as employment
discussions end without an employment agreement.
(ii) Additionally, persons involved in the performance of procurement
functions and related duties should see the detailed reporting and
disqualification procedures to which they are subject. See 40.7(a)(5)
and 40.13.
(11) Outside employment of DoD personnel. DoD personnel may not
engage in outside employment or other outside activity, with or without
compensation, that is not compatible with the performance of their
Government duties, may reasonably be expected to bring discredit upon
the Government or DoD Component concerned, or is otherwise inconsistent
with the requirements of part. This includes the requirement to avoid
actions that reasonably may be expected to create a conflict of interest
or the appearance of conflict of interest.
(i) No enlisted members of the Armed Forces on active duty may be
ordered or permitted to leave their post to engage in a civilian pursuit
or business, or a professional activity in civil life if it interferes
with the customary or regular employment of local civilians in their
art, trade, or profession. See 10 U.S.C. 974.
(ii) Off-duty employment of military personnel by an entity involved
in a strike is permissible if the person was on the payroll of the
entity before the strike began and if the employment is otherwise in
conformance with this part. After a strike begins and while it
continues, no military personnel may accept employment with the involved
entity at the strike location.
(iii) DoD personnel are encouraged to engage in teaching, lecturing,
and writing, subject to the standards set out in this part. See
paragraph (b)(11) of this section. DoD personnel shall not, either with
or without compensation, engage in activities that are dependent on
information obtained as a result of their Government employment, except
when the information does not focus specifically on the agency's
responsibilities, policies and programs, and:
(A) The information has been published or is generally available to
the public,
(B) The information would be made available to the public under the
Freedom of Information Act, 5 U.S.C. 552 or
(C) The Head of the employing DoD Component, or designee, gives
written authorization for the use of nonpublic information on the basis
that the use is in the public interest. See DoD Directive 5230.9.
(iv) Presidential appointees shall not receive compensation or
anything of monetary value for any consultation, lecture, discussion,
writing, or appearance, when the subject matter is as follows:
(A) Is devoted substantially to DoD responsibilities, programs, or
operations, or
(B) Draws substantially on official material that has not become part
of the body of public information.
(12) Gratuities, reimbursements, and other benefits from outside
sources. DoD personnel and members of their families shall not accept
gratuities from those who have or seek business with the Department of
Defense or from those whose business interests are affected by DoD
functions.
(i) No matter how innocently the gratuity is tendered or received,
acceptance may be a source of embarrassment to the Department of
Defense, may appear to affect the objective judgment of the DoD
personnel involved, and may impair public confidence in the integrity of
Government.
(ii) DoD personnel and their families shall not solicit, accept, nor
agree to accept any gratuity for themselves, members of their families,
or others, either directly or indirectly from, or on behalf of, any
defense contractor or any source that:
(A) Is engaged in or seeks business or financial relations of any
sort with any DoD Component,
(B) Conducts operations or activities that are either regulated by a
DoD Component or significantly affected by DoD decisions,
(C) Has interests that may be substantially affected by the
performance or nonperformance of the official duties of DoD personnel,
or
(D) Is a foreign government or representative of a foreign government
that is engaged in selling to the Department of Defense, where the
gratuity is tendered in the context of the foreign government's
commercial activities. See DoD Directive 1005.13. /1/
(c) Exceptions -- (1) Gratuities exceptions. Exceptions shall be
applied narrowly in keeping with the prohibitions in paragraph (b)(13)
of this section. The prohibitions in paragraph (b)(13) of this section
do not apply to the following:
(i) Continued participation in employee welfare or benefit plans of a
former employer when permitted by law and approved by the appropriate
supervisor with the advice of the DAEO or designee;
(ii) Acceptance of unsolicited advertising or promotional items that
are less than $10.00 in retail value;
(iii) Acceptance of trophies, entertainment, prizes, or awards for
public service or achievement in an individual capacity, or given in
games or contests that do not relate to official duties and are clearly
open to a broad segment of the public generally, or that are approved
officially for DoD personnel participation;
(iv) Benefits available to the public (such as university
scholarships covered by DoD Directive 1322.6 /1/ and free exhibitions by
DoD contractors at public trade fairs;
(v) Discounts or concessions realistically available to all personnel
in the DoD Component, provided that such discounts or concessions are
not used to obtain any item for the purpose of resale at a profit;
(vi) Participation by DoD personnel in civic and community activities
that also involve a DoD contractor, when any relationship between DoD
personnel and the contractor is indirect (such as participation in a
Little League or Combined Federal Campaign luncheon that is subsidized
by a defense contractor);
(vii) Activities engaged in by officials of a DoD Component and
officers in command, or their representatives, with local civic or
military leaders as part of authorized community relations programs of
the DoD Component in accordance with Parts 237 and 238 of this title;
(viii) The participation of DoD personnel in widely attended
gatherings of mutual interest to Government and industry, sponsored or
hosted by universities or industrial, technical, and professional
associations (not by individual contractors) provided that they have
been approved in accordance with 32 CFR Part 237a;
(ix) Situations in which participation by DoD personnel at public
ceremonial activities of mutual interest to industry, local communities,
and the DoD Component concerned serves the interests of the Government
and acceptance of the invitation is approved by the DAEO of the
employing DoD Component, or his or her designee;
(x) When an official Government business and when the DoD personnel
reports the circumstances in writing to the superior or supervisor and
to the DAEO or designee as soon as possible:
(A) Space available use of previously scheduled ground transportation
to or from the contractor's place of business provided by the contractor
for its own employees, and
(B) Contractor-provided transportation, meals or overnight
accommodations when arrangements for Government or commercial
transportation, meals, or accommodations are clearly impracticable;
(xi) Attendance at vendor training sessions when the vendor's
products or systems are provided under contract to the Department of
Defense and the training is to facilitate the use of those products or
systems by DoD personnel;
(xii) Attendance or participation of DoD personnel in gatherings
(including social events such as reception) that are hosted by foreign
governments (when not in their DoD contractor capacity) or international
organizations when:
(A) Acceptance of the invitation is approved by the DoD Component
DAEO or designee,
(B) Attendance or participation is authorized by other exceptions
such as paragraph (c)(1)(vii) or (c)(1)(xiii) of this section or
(C) The social event involves a routine or customary social exchange
with officials of foreign governments (including military forces) in
pursuit of official duties;
(xiii) Customary exchanges of gratuities between DoD personnel and
their friends and relatives and the friends and relatives of their
spouse, minor children, and members of their household when the
circumstances clearly indicate that it is the relationship, rather than
the business of the person concerned, that is the motivating factor for
the gratuity and it is clear that the gratuity is not paid for by the
U.S. Government or any DoD contractor;
(xiv) Acceptance of transportation and related travel expenses from a
potential employer in connection with a job interview, provided that the
recipient, before departure on that trip, notifies his or her immediate
superior or supervisor of these travel arrangements and that he or she
files a written disqualification statement concerning any possible
official actions involving the potential employer, including some
evidence that the potential employer offers the same benefits to all
similarly situated applicants, not only those employed within the
Department of Defense;
(xv) On an occasional basis only, acceptance of coffee, donuts, and
similar refreshments of nominal value offered as a normal courtesy
incidental to the performance of duty;
(xvi) Acceptance of benefits resulting from the business activities
of a spouse, where it is clear that such benefits are accorded the
spouse in the normal course of the spouse's employment or business, and
have not been proffered or made more attractive because of the DoD
personnel's status;
(xvii) Situations in which, in the sound judgment of the individual
concerned or his or her supervisor or superior, the government's
interest would be served by DoD personnel participating in activities
otherwise prohibited. In any such case, a written report of the
circumstances shall be made in advance, or, when an advance report is
not possible, within 48 hours, by the individual or his or her
supervisor or superior to the DAEO or designee.
(2) Training, orientation, and refresher courses. The guidance in
paragraph (c)(2) (i) through (iv) of this section applies when defense
contractors provide training, orientation, and refresher courses to
Government personnel. These courses range from executive orientation
courses in which all expenses are borne by the defense contractor to
annual seminars devoted to technical developments in which the only
''gratuity'' may be lectures given free of charge.
(i) When a course is given pursuant to a contractual undertaking with
the Government, the course itself is not a gratuity. The furnishing of
meals, lodging, and transportation to the extent required by the
contract also is not a gratuity. If lodging, meals, transportation, or
other accommodations are furnished as a part of a contract, travel and
other expenses chargeable to the Government shall be reduced according
to applicable regulations.
(ii) Attendance at tuition-free training or refresher courses, or
other educational meetings, offered by defense contractors (although not
required to do so by the defense contract) may be authorized when
attendance is clearly in the best interest of the Government, and
provided that the contractor waives all claims against the Government
for such training. In these cases, the training or instruction shall
not be regarded as a gratuity.
(iii) Selection of personnel to attend courses described in paragraph
(c)(2) (i) and (ii) of this section shall be made by the Government and
not by the defense contractor. Invitations to individuals to attend
courses at the expense of the defense contractor may not be accepted by
the individual recipient.
(iv) Authorized attendance at courses described in paragraph (c)(2)
(i) and (ii) of this section shall be considered official business, with
payment of transportation, per diem, tuition, or other training expenses
made only by the Government, by the individual attendee, or in
accordance with applicable law or regulation. See 40.4(c)(5).
(3) ROTC staff member benefits. Procedures for Reserve Officer
Training Corps staff members receiving payments or other benefits
offered by educational institutions are set forth in Part 92 of this
title.
(4) Reporting gratuities. DoD personnel who receive gratuities, or
have gratuities received for them, under circumstances that are not
covered by the standards of this directive promptly shall report the
circumstances to their supervisor or superior for review and to the DAEO
or designee. Ultimate disposition of the gratuity shall be determined
by the DAEO or designee.
(5) Authorized reimbursements and benefits. DoD personnel shall not
accept from any source, other than the U.S. Government, cash
reimbursement for expenses incident to official travel, except as
indicated in paragraph (c)(5) (ii) and (iii) of this section. DoD
personnel shall not accept from any source, other than the U.S.
Government, accommodations, subsistence, transportation or other
services in kind, except as indicated in paragraph (c)(5) (i), (ii), and
(iii) of this section. Where acceptance is authorized, DoD personnel
shall not accept, either in kind or for cash reimbursement, benefits
that are extravagant or excessive in nature. When accommodations,
subsistence, transportation or other services in kind are furnished to
DoD personnel by sources other than the U.S. Government and are
authorized, appropriate deductions shall be reported and made in the
travel, per diem, or other allowances payable by the U.S. Government to
the DoD personnel.
(i) DoD personnel who are to be speakers, panelists, project
officers, or other bona fide participants in the activity attended may
accept accommodations, subsistence, transportation, or services in kind
furnished in connection with official travel only from sources
specifically authorized by 5 U.S.C. 4111 or listed in 26 U.S.C.
501(c)(3) or other statutory authority, and only when acceptance is
approved by the supervisor or superior, consistent with guidance from
the DAEO or designee.
(ii) DoD personnel may accept travel, or reimbursement for travel
expenses, from a foreign government as provided in DoD Directive
1005.13.
(iii) Cash reimbursements other than those specified in 40.4(c)(5)
or accommodations, subsistence, transportation, or other services in
kind, may be accepted in accordance with statute when they are gifts to
the DoD Component. Cash reimbursements shall not be received physically
by an individual but may be received by an official of the DoD Component
who is authorized to receive such payments. See 10 U.S.C. 2601 and 46
Comp. Gen. 689.
(6) Ship launch and similar ceremonies. The following guidance
applies to ceremonies and gifts associated with the launch or
commissioning of a naval vessel, an aircraft or other vehicle, and all
similar events:
(i) Attendance at ceremonies. Acceptance of an invitation to attend
a ceremony shall be approved by the commanding officer or head of the
activity in which the invitee serves or is employed. Attendance is
permitted at appropriate functions incident to the ceremony, such as a
dinner preceding the ceremony and the reception following it, as long as
the function is not lavish, excessive, or extravagant.
(ii) Acceptance of gifts. DoD personnel, their spouses, and their
dependent children, who are official participants may accept a tangible
thing of value as a gift or memento in connection with the ceremony as
long as its retail value does not exceed $100 per family and the cost is
not borne by the Government. When a gift exceeds the $100 limit the
recipient shall pursue one of the following alternatives:
(A) Return the gift to the donor,
(B) Retain the gift after reimbursing the donor the full value of the
gift, or
(C) Forward the gift to the appropriate DoD Component official for
disposition as a gift to the Government in accordance with statute. See
10 U.S.C. 2601.
(7) Use of government facilities, property, and personnel. The
following guidance applies to use of Government facilities, property,
and personnel:
(i) DoD personnel have a duty to protect and conserve Government
property. Government property, facilities, and personnel shall be used
only for official Government business. This includes, but is not
limited to, telephone calls, stationery, stenographic services, typing
assistance, duplication equipment and services, chauffeur services, and
computer facilities. DoD personnel shall not use, directly or
indirectly, or allow the use of, any Government property, including
property leased to the Government, for other than official purposes.
(ii) These prohibitions do not prevent the limited use of Government
facilities, property, and personnel for approved activities to promote
authorized DoD community relations. See Parts 237 and 238 of this title
and paragraph (c)(5) of this section.
(iii) Office telecommunications covers all information sending,
receiving, and conference services (such as telephone, message, data,
video, and facsimile services) available in the office environment.
(iv) All DoD personnel are responsible for using office
telecommunications services for official use only. The term ''official
use'' means service directly in support of Government business or as
otherwise approved by DoD Component authority, as defined by the DoD
Component, who is in the supervisory or managerial chain of command, as
being in the best interest of the Government.
(A) DoD office telecommunications services are resources provided to
conduct business directly in support of the Government.
(B) DoD shall pay only for the official uses of DoD
telecommunications services.
(C) Where available and practicable, steps shall be taken to ensure
user accountability (i.e., call verification, call restriction, other
telecommunications service features).
(D) Employees who make unofficial use of DoD office
telecommunications service are subject to appropriate disciplinary
action as determined by the DoD Component authority.
(v) DoD facilities, property, and personnel may be used for approved
activities to promote authorized DoD community relations and
accommodations, subsistence, transportation, or other services in kind
may be furnished on a limited basis in connection with such activities.
See 32 CFR Parts 237 and 238.
(8) Gambling, betting, and lotteries. DoD personnel shall not
participate in any unauthorized gambling activity while on property
owned, controlled, or leased by the Government or otherwise while on
duty for the Government. This includes lotteries, pools, games for
money or property, or the sale or purchase of number slips or tickets.
This paragraph does not prevent activities that are as follows:
(i) Necessitated by an employee's law enforcement duties,
(ii) Specifically approved by the Head of the DoD Component,
(iii) Otherwise authorized by law, such as the sale on DoD premises
of state lottery tickets by blind vendors licensed pursuant to the laws
of that State.
(9) Indebtedness. DoD personnel shall pay their just financial
obligations expediently, particularly those imposed by law (such as
Federal, State or local taxes) so that their indebtedness does not
affect adversely the Government as their employer. DoD Components are
not required to determine the validity or amount of disputed debts.
(52 FR 23268, June 19, 1987, as amended at 52 FR 29844, Aug. 12,
1987)
/1/ Copies may be obtained, if needed from the U.S. Naval
Publications and Forms Center, Code 301, 5801 Tabor Avenue,
Philadelphia, PA 19120.
/1/ See footnote 1 to 40.4(b)(3)(ii)(A).
/1/ See footnote 1 to 40.4(b)(3)(iii)(A).
32 CFR 40.5 Responsibilities.
(a) The Heads of DoD Components shall:
(1) Through a formal written delegation of authority, appoint a DAEO
who is qualified to manage and supervise the DoD Component ethics and
standards of conduct programs for both civilian and military personnel,
(2) Appoint an Alternate Agency Ethics Official who shall serve in
the absence of the DAEO.
(3) Provide sufficient resources (including investigative, audit,
legal, and administrative staff) to enable the DAEO to administer the
DoD Component ethics programs in a positive and effective manner, and
(4) Promulgate regulations implementing the requirements of Pub. L.
95-521, 5 CFR Parts 734 and 735, E.O. 11222, and 10 U.S.C. 2397, 2397a,
2397b, and 2397c and this part.
(b) The Designated Agency Ethics Official (DAEO) shall:
(1) Coordinate and oversee local implementation of all matters
relating to standards of conduct, conflicts of interest, and financial
disclosure covered by this part.
(2) Ensure that standards of conduct advice (and facts relied upon
for such advice) are in writing when practicable,
(3) Ensure the proper collection, review, and handling of all
financial disclosure reports, including those submitted by Presidential
appointees for confirmation purposes, certain executive personnel (SF
278, see 40.10), and certain designated military and civilian personnel
(DD Forms 1555, see 40.9),
(4) Take aggressive action to collect, review, and maintain DoD and
defense related employment reports, including those submitted by regular
retired military officers (DD Form 1357, see 40.11), and certain
present and former officers and employees of DoD Components regarding
defense related employment (DD Form 1787, see 40.12),
(5) Ensure that a list of individuals who submit DD Form 1787 during
the prior fiscal year and a copy of each report are provided to the DoD
Standards of Conduct Office (SOCO) not later than February 28 of each
year,
(6) Initiate and maintain an education and training program
concerning all ethics and standards of conduct matters, including
post-employment restrictions and reporting requirements,
(7) Administer a system for periodic evaluation of DoD Component
ethics programs, including the financial disclosure reporting systems
and defense and DoD related employment reporting systems,
(8) Initiate prompt, effective action to evaluate and remedy
violations, potential violations, and appearances of violations of laws
or regulations relating to applicable standards of conduct, conflicts of
interest, financial disclosure requirements, or DoD and defense related
employment reporting requirements, in accordance with applicable due
process procedures, (see 5 CFR Part 737),
(9) Assign local designees who are attorneys qualified to provide
ethics counseling and to implement standards of conduct programs
locally,
(10) Provide advice and assistance to DoD Component personnel not
otherwise assigned a local designee,
(11) Maintain liaison with the Office of Government Ethics (OGE),
Office of Personnel Management (OPM), the DoD Standards of Conduct
Office (SOCO), and provide to SOCO and OGE all information required by
law or regulation.
(c) The General Counsel, DoD, shall:
(1) Serve as the DAEO for the Office of the Secretary of Defense,
(2) Maintain the DoD SOCO and provide sufficient resources to enable
SOCO to oversee and coordinate Component ethics programs, to produce
reports required by Congress and maintain report data, and to manage the
DoD Ethics Oversight Committee (EOC),
(3) Provide legal guidance and assistance to the DAEOs of all DoD
Components,
(4) Represent the Department of Defense to the OGE, the Congress, and
the Executive Branch on matters relating to ethics and standards of
conduct,
(5) Have the authority to modify or supplement any of the sections to
this part in a manner consistent with this part, and
(6) Establish a DoD EOC including representatives of DoD Components.
(d) The DoD Standards of Conduct Office (SOCO) shall:
(1) Manage the DoD EOC and collect general standards of conduct
issues for consideration by the DoD EOC,
(2) Publish periodic guidance to DoD Components based on
recommendations by the DoD EOC to promote uniformity of standards of
conduct opinions throughout the Department of Defense,
(3) Draft DoD input on proposed standards of conduct legislation
based on recommendations by the DoD EOC,
(4) Receive the lists and copies of individual DD Forms 1787 from
each DoD Component and compile the information, maintain copies of the
lists and individual reports and make them available to the public for
inspection during regular working hours,
(5) Receive individual SF 278 and DD Forms 1555 from officers and
employees of the Office of the Secretary of Defense and maintain these
reports on file in accordance with statute,
(6) Provide reports to Congress for the Department of Defense in
accordance with statutes, including the preparation of a list of
individuals who filed DD Form 1787 during the preceding fiscal year,
listed by groups under the names of the appropriate DoD Components, and
submission of that list to the President of the Senate and to the
Speaker of the House of Representatives, no later than April 1 of each
year,
(7) Prepare testimony for Congressional standards of conduct hearings
and review transcripts,
(8) Collect and publish important written opinions from DoD
Components when practicable to promote uniformity of standards of
conduct opinions throughout the Department of Defense,
(9) Develop educational programs and materials for the Office of the
Secretary of Defense that shall serve as models for other DoD
Components,
(10) Present DoD perspectives on ethics to the public and respond to
press inquiries.
(e) The DoD Ethics Oversight Committee shall:
(1) Meet on a regular basis,
(2) Consider general standards of conduct issues collected by the DoD
SOCO and make recommendations to promote uniformity of standards of
conduct opinions throughout the Department of Defense,
(3) Provide recommendations to DoD Component DAEOs on particular
standards of conduct matters that are not addressed specifically in the
part,
(4) Provide recommendations for DoD input on proposed standards of
conduct legislation.
(f) The Assistant Secretary of Defense (Comptroller) (ASD(C)) shall:
(1) Prepare an annual report listing the defense contractors that
have been awarded $10,000,000 or more in defense contracts during the
fiscal year and publish the report in the Federal Register not later
than December 15 after the end of the fiscal year. Persons subject to
the DD Form 1787 filing requirement may rely upon the annual report that
is most current at the time of filing to identify those defense
contractors whose employees and former employees are subject to this
part,
(2) Prepare an annual report listing all the defense contractors that
have been awarded $25,000 or more in defense contracts during the fiscal
year,
(3) Provide SOCO such personnel data on OSD, civilian, officer and
employees, and military members serving in OSD as may be required, or
permit designated SOCO personnel to have access to personnel records.
32 CFR 40.6 Procedures.
(a) Reporting suspected violations by DoD personnel. (1) Suspected
violations of the criminal statutes listed in 40.7 and of this part
shall be reported promptly to the immediate supervisor of those persons
suspected and to the DAEO, or to a law enforcement official.
(2) Reports of any violations also may be made to the Inspector
General of the Department of Defense in accordance with DoD Directive
7050.1 /1/ and DoD Directive 5240.4. /1/
(3) DoD personnel shall cooperate with official investigations of
possible violations.
(b) Resolution of a violation or its appearance. (1) Resolution of
real or apparent standards of conduct violations shall be accomplished
promptly.
(2) DoD Components are encouraged to establish a procedure that
enables consultation and administrative action to resolve violations at
the lowest possible command level in accordance with applicable laws,
Executive Orders, and this part. Detailed administrative enforcement
provisions appear in 40.14.
(3) Resolution shall be accomplished through use of one or more of
the following measures:
(i) Disqualification from particular official actions (see paragraph
(b)(4)) of this section.
(ii) Limitation of duties,
(iii) Divestiture,
(iv) Transfer or reassignment,
(v) Resignation,
(vi) Exemption under 18 U.S.C. 208(b),
(vii) Other appropriate action as provided by statute or
administrative procedure.
(4) DoD personnel who have affiliations or financial interests that
create conflicts of interest, or the appearance of conflicts of
interest, with their official duties must disqualify themselves in
writing from any official activities related to those affiliations,
interests, or entities involved, unless otherwise expressly authorized
by action taken under 40.7(a)(3).
(i) Written notice of disqualification must be delivered to a
person's superior or supervisor, immediate subordinates, and the DAEO or
designee when the official duties or DoD personnel may affect the
affiliations, interests, or entities involved.
(ii) If DoD personnel cannot perform their official duties adequately
after such disqualification, they must divest their interests or be
removed from their positions.
(iii) DoD Components shall provide for the periodic review of a
disqualification by an individual's superior or supervisor to ensure its
effectiveness.
(c) Financial disclosure procedures -- (1) Statement of affiliations
and financial interests (DD Form 1555). (i) The following DoD personnel
must submit initial and annual Statements of Affiliation and Financial
Interest (DD Form 1555) unless they are expressly exempted or are
required to file a Financial Disclosure Report (SF 278) under paragraph
(c)(2) of this section.
(A) Commanders and deputy commanders of major installations,
activities, and operations, as determined by the Heads of the DoD
Components,
(B) DoD personnel classified at GS/GM-15 or below under 5 U.S.C.
5332, or a comparable pay level under other authority, and members of
the military below the rank of O-7, when the official responsibilities
of such personnel require them to exercise judgment in making Government
decisions or in taking Government action for contracting or procurement,
regulating or auditing private or other nonfederal enterprise, or other
activities in which the final decision or action may have economic
impact on the interests of any nonfederal activity,
(C) Special Government employees, except those exempted by 40.9.
(D) DoD personnel serving in positions in which the DoD Component
determines that the duties and responsibilities of the position require
the officer or employee to file such a report to avoid a conflict of
interest or the appearance of a conflict of interest and to carry out
the purpose of any statute, Executive Order, or regulation applicable to
or administered by that DoD officer or employee.
(ii) DoD personnel in positions described in paragraph (c)(1)(i) of
this section may be excluded from all or a portion of the reporting
requirements when the DoD Component head or the DAEO determines that:
(A) The duties of the position are such that the possibility of a
conflict of interest or appearance of a conflict of interest is remote,
(B) The duties of the position are at such a level of responsibility
that the submission of a non-public financial disclosure report is not
necessary because of the inconsequential effect on the integrity of the
U.S. Government, or
(C) The use of an existing or alternative approved procedure is
adequate to prevent any possible conflict of interest or appearance of a
conflict of interest.
(iii) DoD Components shall ensure that personnel officers, in
coordination with supervisors and ethics counselors, develop systems to
identify all positions and persons required to file DD Forms 1555. See
Federal Personnel Manual (FPM), Chapter 734, paragraphs 2 through 3.
(iv) Additional guidance about the applicability, submission, and
review of DD Forms 1555 is in 40.10.
(2) Financial Disclosure Report (SF 278) (i) The following DoD
personnel are required by the Ethics in Government Act of 1978 to file
Standard Form 278. Instructions are in 40.10 (persons required to file
SF 278 are not required to file DD Form 1555):
(A) General and Flag officers (pay Grade O-7 and above),
(B) Members of the Senior Executive Service (SES),
(C) General schedule (GS) employees, Grade 16 and above,
(D) Personnel (including special Government employees) whose rate of
pay is fixed, other than under the general schedule, at a rate equal to
or greater than the minimum rate of pay for GS-16 (GS/GM 15s are not
required to file SF 278 even though their pay is higher than that of a
GS/GM 16),
(E) Employees in the excepted service in positions of a confidential
or policymaking character (Schedule C employees). This requirement does
not apply to positions that have been excluded by the Director of the
OGE.
(ii) DoD Components shall ensure that personnel officers, in
coordination with supervisors and DAEO's or designees, develop systems
to identify all positions and persons required to file SFs 278. See
FPM, Chapter 734, paragraphs 2 through 3.
(iii) Compliance with the financial disclosure provisions of the
Ethics in Government Act, Pub. L. 95-521 shall be enforced by
administrative, civil, or criminal remedies, as appropriate. These are
discussed further in 40.10.
(iv) Additional guidance about the submission, review, and public
availability of SF 278 is in 40.10.
(d) DoD and Defense related employment reporting procedures -- (1)
Statement of employment (DD Form 1357). Each retired regular officer of
the Armed Forces shall file initially with the Military Department in
which he or she holds retired status a DD Form 1357 (Statement of
Employment) 40.11. Filing shall be within 60 days after retirement and
thereafter within 30 days of changing employer or taking on new duties.
The filing requirement continues for three years after retirement.
(i) The Military Departments shall establish procedures for the
submission and review of DD Form 1357 to ensure compliance with
applicable statutes and regulations. The procedures shall include the
requirement that reviewing officials forward an information copy of the
initial DD Form 1357 and subsequent changes to the DAEO at the last duty
station of the retired regular officer.
(ii) Changes to DD Form 1357 must be filed within 30 days after the
information in the previous statement has ceased to be accurate.
(2) Report of DoD and Defense related employment (DD Form 1787). (i)
The following individuals must submit Reports of DoD and Defense Related
Employment (DD Form 1787):
(A) Each person who has left service or employment with a DoD
Component, who:
(1) Is a retired military officer or former military officer who
served on active duty at least 10 years and who held, for any period
during that service, the Grade of O-4 or above, or is a former civilian
officer or employee whose pay at any time during the three year period
prior to the end of DoD service or employment was equal to or greater
than the minimum rate for a GS-13 at that time,
(2) Within the two year period immediately following the termination
of service or employment with a DoD Component, is employed by a defense
contractor who, during the year preceding employment, was awarded
$10,000,000 or more in DoD contracts, and
(3) Is employed by or performs a service for the defense contractor
and at any time during a year directly receives compensation of or is
salaried at a rate of $25,000 per year or more from the defense
contractor (''compensation'' is received by a person if it is paid to a
business entity with which the person is affiliated in exchange for
services rendered by that person),
(B) Each civilian officer and employee of a DoD Component who:
(1) Is employed at a pay rate equal to or greater than the minimum
rate for a GS-13,
(2) Within the two year period prior to the effective date of service
or employment with the DoD Component, was employed by a defense
contractor who, during a year, was awarded $10,000,000 or more in DoD
contracts, and
(3) Was employed by or performed services for the defense contractor
and at any time during that year received compensation of or was
salaried at a rate of $25,000 per year or more at any time during
employment (''compensation'' is received by a person if it is paid to a
business entity with which the person is affiliated in exchange for
services rendered by that person),
(ii) DoD Components shall establish administrative procedures for
submission, review, and approval of individual reports and for compiling
and submission of the information to the DoD SOCO that shall establish
administrative procedures for receipt, compilation, and submission to
Congress, of the reported information. See 40.5.
(iii) The transition from the former statutory requirements to the
present statutory requirements regarding DD Form 1787 shall take place
as follows (see 10 U.S.C. 2397):
(A) Former DoD personnel to whom the statute applies and who
terminated service or employment with the Department of Defense on or
after November 8, 1985 shall have until July 1, 1987 to file the initial
DD Form 1787 using the new DD Form 1787 dated March 1987.
(B) DoD personnel to whom the statute applies who began service or
employment with the Department of Defense on or after November 8, 1985
and before the effective date of this part shall file using the new DD
Form 1787 dated March 1987.
(C) Former statutory requirements regarding DD Form 1787 do not apply
after November 8, 1985. If an individual to whom the requirement
applies filed a DD Form 1787 dated January 1, 1971 under the former
statutory requirements, the individual shall file again using the new DD
Form 1787 dated March 1987 by the deadline date of July 1, 1987.
(iv) Additional guidance about the applicability, admission, and
review of DD Forms 1787 is in 40.12.
(v) The public information requirement set out in paragraph (d)(2) of
this section, in the Report of DoD and Defense Related Employment (DD
Form 1787), has been assigned OMB Control Symbol 1704-0047.
(52 FR 23268, June 19, 1987, as amended at 52 FR 29844, Aug. 12,
1987)
/1/ See footnote 1 to 40.4(b)(3)(iii)(A).
32 CFR 40.7 Digest of laws.
(a) Conflict of interest laws applicable to DoD personnel -- (1) 18
U.S.C. 203. (i) 18 U.S.C. 203(a) prohibits officers or Government
employees (other than enlisted personnel) from directly or indirectly
receiving or seeking compensation for services rendered or to be
rendered before any department or agency in connection with any
contract, claim, controversy or particular matter in which the United
States is a party or has a direct and substantial interest. The purpose
of this section is to reach any situation, including those where there
is no intent to be corrupted or to provide preferential treatment, in
which the judgment or efficiency of a Government agency might be
influenced because of payments or gifts, made by reason of the position
occupied, to that official in a manner otherwise than provided by law.
(ii) 18 U.S.C. 203(b) makes it unlawful to offer or pay compensation,
the solicitation or receipt of which is barred by subsection (a).
(2) 18 U.S.C. 205. (i) 18 U.S.C. 205 prohibits Government personnel
(other than enlisted personnel) from acting as an agent or attorney for
anyone else before a department, agency, or court in connection with any
particular matter in which the United States is a party or has a direct
and substantial interest.
(ii) The following exemptions are allowed:
(A) 18 U.S.C. 205 does not prevent Government personnel from giving
testimony under oath or making statements required to be made under
penalty of perjury or contempt or from representing another person,
without compensation, in a disciplinary, loyalty, or other personnel
administration proceeding.
(B) 18 U.S.C. 205 also authorizes a limited waiver of its
restrictions and those of 18 U.S.C. 203 for the benefit of an officer or
employee, including a special Government employee, who represents his or
her parents, spouse, or child, or a person or estate he or she serves as
a fiduciary. The waiver is available only if approved by the official
making appointments to the position. In no event does the waiver extend
to the appointee's representation of any such person in matters in which
he or she has participated personnally and substantially or which, even
in the absence of such participation, are the subject of his or her
official responsibility.
(C) 18 U.S.C. 205 gives the head of a department or agency the
authority to allow a special Government employee to represent his or her
regular employer or other outside organization in the performance of
work under a Government grant or contract if the department or agency
Head certifies and publishes in the Federal Register that the national
interest requires such representation.
(3) 18 U.S.C. 208. (i) 18 U.S.C. 208 (a) requires Executive Branch
personnel (other than enlisted personnel) to refrain from personal and
substantial participation as Government personnel through decision,
approval, disapproval, recommendation, the rendering of advice,
investigation, or otherwise in any particular matter in which, to their
knowledge, they, their spouses, their minor children, their partners,
their employers or their prospective employers, or their organizations,
have a finacial interest. A ''particular matter'' may be less concrete
than an actual contract, but is something more specific than rule making
or abstract scientific principles. The test is whether the individual
might reasonably anticipate that his or her Government action, or the
decision in which he or she participates or with respect to which he or
she advises, will have a direct and predictable effect on such financial
interests.
(ii) 18 U.S.C. 208(b) permits agencies to grant an exemption in
writing from subsection (a) if the outside financial interest is deemed
in advance not substantial enough to affect the integrity of Government
services. Categories of financial interests may also be made
nondisqualifying by a general regulation published in the Federal
Register. Shares of a widely held, diversified mutual fund or regulated
investment company have been exempted as being too remote or
inconsequential to affect the integrity of the services of Government
personnel.
(4) 18 U.S.C. 209. Title 18, U.S. Code, section 209 (a) prohibits
Executive Branch personnel (other than enlisted personnel) from
receiving, and anyone from paying them, any salary or supplementation of
salary from a private source as compensation for their Government
service. Subsection (b) permits participation in a bona fide pension
plan or other employee welfare or benefit plan maintained by a former
employer. Subsection (c) exempts special Government employees and
anyone serving the Government without compensation. Subsection (d)
exempts contributions, awards, or other expenses under the Government
Employees Training Act. See 5 U.S.C. 4111.
(5) 10 U.S.C. 2397a. Title 10, U.S. Code, section 2397a applies to
DoD employees at pay rates of GS-11 or higher and to officers in pay
Grades 0-4 or higher. Such officials must report any contact they have
had, or will have, with defense contractors regarding future employment
with the defense contractor in any DoD procurement. Such officials also
must disqualify themselves from any participation in DoD procurement
related to the defense contractor. The penalty for violation is a bar
from employment with the defense contractor for ten years after
Government service and up to $10,0000 ( 40.13)
(b) Post government service statutory restrictions -- (1) 10 U.S.C.
2397 -- (i) Former DoD officers and employees. The first section
applies to: retired military officers or former military officers who
served on active duty at least 10 years at the grade of 0-4 or higher
and former civilian officers or employees who served at a GS-13 pay rate
or higher, who, within two years of leaving DoD, are employed by defense
contractor awarded at least $10,000,000 in defense contracts, and
receive compensation from that defense contractor at an annual rate of
$25,000 or more.
(ii) Present DoD officers and employees. The second section applies
to: Civilian officers and employees paid as GS-13 or higher, who,
within two years prior to beginning with the DoD Component, were
employed by a defense contractors awarded at least $10,000,000 in DoD
contracts, and received compensation from that defense contractor at an
annual rate of $25,000 or more.
(iii) Affirmative duty to file report. These individuals shall file
reports giving their name and address, the name and address of the
defense contractor, a description of duties with the defense contractor,
a description of duties with the DoD Component, and other information
required on DD Form 1787. The penalty for failure to file is a fine of
up to $10,000 ( 40.13).
(2) 10 U.S.C. 2397b. Title 10, U.S. Code, section 2397b applies to
former DoD officers and employees serving at a pay rate equal to or
greater than the minimum pay rate for GS-13 or higher and 0-4 or higher
who: spent the majority of their working days during the last two years
of DoD service performing procurement related functions related to a
defense contract at a site or plant that was owned or operated by the
contractor and that was the principal location of performance of such
duties, or spent the majority of their working days during the last two
years of their DoD service performing personally and substantially in a
decision-making capacity through contact with a contractor on a major
defense system. The statute also restricts those in the grades of SES
or 0-7 or higher, who performed duties as a primary representative of
the United States while either negotiating a defense contract or
settling a contractor's claim in an amount in excess of $10,000,000.
The penalty for violation of this statute is a fine up to $250,000. (
40.10.)
(3) 18 U.S.C. 203. Title 18, U.S. Code, section 203 makes it a
criminal offense for a former Government employee to share in any
compensation for representation before any Government agency in relation
to a particular matter in which the United States is a party or has a
direct and substantial interest, regardless of whether it was before the
agency of which the individual is a former employee, during the period
of his or her Government service or employment. It covers compensation
received only in connection with actual or constructive appearances
before an agency. This section does not apply to former Government
employees who receive fixed salaries, as opposed to shares of profits,
as compensation for their services.
(4) 18 U.S.C. 207 -- (i) Permanent restriction on representation.
Title 18, U.S. Code, section 207 (a) permanently prohibits all former
officers or employees (other than enlisted personnel) from knowingly
representing anyone other than the United States or, with an intent to
influence, making any oral or written communication on behalf of
someone, in connection with a particular matter involving a specific
party or parties in which the United States is a party or has a direct
and substantial interest and in which the individual participated
personally and substantially for the Government.
(ii) Two-year restriction on representation. (A) 18 U.S.C.
207(b)(1) restricts former officers or employees who terminate
Government service on or after July 1, 1979, for two years after
termination of service. Such persons may not act as agent or attorney
or otherwise represent others in formal or informal appearances before
the Government in connection with particular matters that were pending
under the former employee's official responsibility during the final
year of Service. This restriction includes oral or written
communications as described in paragraph (b)(4)(i) of this section.
(B) ''Official responsibility'' includes the direct administrative or
operating authority, whether intermediate or final, either exercisable
alone or with others, and either personally or through subordinates, to
approve, disapprove, or otherwise direct Government actions.
Ordinarily, the scope of an employee's official responsibility is
determined by reference to the pertinent statute, regulation, Executive
Order, job description, or delegation of authority.
(iii) Additional restrictions applicable to senior employees. (A) A
''senior employee'' includes all civilian officials at the executive
level and all three and four star generals and flag officers. It also
includes other persons holding positions designated as ''senior
employee'' positions by the Director, Office of Government Ethics, as
involving significant decisionmaking or supervisory responsibility. A
list of designated positions is published annually in the Federal
Register.
(B) For two years after leaving Government service, a former senior
employee may not assist in the representation of another person by
personal presence at an appearance before the Government on any
particular matter in which he or she personally and substantially
participated while in Government service (18 U.S.C. 207(b)(ii)). While
such employees, for example, may work on a contract with which they were
involved while in Government service, they may not render assistance
while in attendance at any meetings, negotiations, or proceedings with
the Government at which the prospective rights of the Government are
addressed.
(C) For one year after leaving Government service, a former senior
employee may not represent another person or himself or herself in
attempting to influence his or her former agency in any matter pending
before, or of substantial interest to, that agency (18 U.S.C. 207(c)).
This provision does not require that the former employee have any prior
involvement in the particular matter. The prohibition does not apply to
communications made by a former senior employee who is an elected
official or employee of a State or local government, acting on behalf of
that government, or to communications on behalf of a degree granting
institution of higher learning, or nonprofit hospitals or medical
institutions by a former senior employee who is principally employed by
those institutions or medical organizations. It also does not apply to
purely social or informational communications, responses to requests
from the former agency, or to expressions of personal views when the
former senior employee has no pecuniary interest. The provision results
in a one year ''cooling off'' period to prevent the possible use of
personal influence based on past Government affiliations to facilitate
the transaction of business.
(iv) Exceptions to post Government service restrictions. (A) The
restrictions of 18 U.S.C. 207 do not apply to communications made solely
for the purpose of furnishing scientific or technological information in
accordance with procedures established by the DoD Component concerned.
(B) The restrictions of 18 U.S.C. 207 do not apply when the Head of a
DoD Component, in accordance with established procedures, certifies that
a former officer or employee has outstanding scientific or technological
qualifications and that the U.S. national interest would be served by
that person's participation in a particular matter.
(c) Laws particularly applicable to retired regular officers -- (1)
Claims. (i) A retired regular officer of the Armed Forces may not,
within two years of retirement, act as agent or attorney for prosecuting
any claim against the government, or assist in the prosecution of such a
claim, or receive any gratuity or any share of or interest in such a
claim in consideration for having assisted in the prosecution of such a
claim, if such claim involves the Military Department in which service
he or she holds a retired status. See 18 U.S.C. 283.
(ii) A retired regular officer of the Armed Forces may never act as
agent or attorney for prosecuting any claim against the government, or
assist in the prosecution of such a claim, or receive any gratuity or
any share of or interest in such a claim in consideration for having
assisted in the prosecution of such a claim if such a claim involves any
subject matter with which he or she was directly connected while on
active duty. See 18 U.S.C. 283.
(2) Selling. (i) A retired regular officer is prohibited, at all
times, from representing any person in the sale of anything to the
Government through the Military Department in which service he or she
holds a retired status. See 18 U.S.C. 281.
(ii) Payment may not be made from any appropriation, to an officer on
a retired list of the Regular Army, the Regular Navy, the Regular Air
Force, the Regular Marine Corps, the Regular Coast Guard, the National
Oceanic and Atmospheric Administration, or the Public Health Service,
for a period of three years after his or her name is placed on that
list, who is engaged for himself, herself or others in selling, or
contracting or negotiating to sell, supplies or war materials to an
agency of the Department of Defense, the Coast Guard, the National
Oceanic and Atmospheric Administration, or the Public Health Service.
See 37 U.S.C. 801(b) as amended, October 9, 1962.
(iii) For the purpose of this statute, ''selling'' means:
(A) Signing a bid, proposal, or contract,
(B) Negotiating a contract,
(C) Contacting an officer or employee of any of the foregoing
departments or agencies to obtain or negotiate contracts, negotiate or
discuss changes in specifications, price, cost allowances, or other
terms of contract, or settle disputes concerning performance of a
contract, or
(D) Any other liaison activity with a view toward the ultimate
consummation of a sale although the actual contract subsequently is
negotiated by another person.
(3) Employment with the Department of Defense. A retired regular
officer of the Armed Forces may not be appointed to a position in the
civil service in the Department of Defense (including nonappropriated
fund instrumentalities) within 180 days following retirement unless the
following conditions set out in DoD Directive 1402.1 are met:
(i) The appointment is authorized by the Secretary of a Military
Department, or designee, and, if applicable, by the Office of Personnel
Management,
(ii) The minimum rate of basic pay for the position has been
increased under 5 U.S.C. 5305, or
(iii) A state of national emergency exists.
(d) Other laws applicable to DoD personnel. Engaging in the
following activities may subject present and former DoD personnel to
criminal or other penalties:
(1) Aiding, abetting, counseling, commanding, including, or procuring
another to commit a crime under any criminal statute (see 18 U.S.C.
201);
(2) Concealing or failing to report to proper authorities the
commission of a felony under any criminal statute if such personnel knew
of the actual commission of the crime (see 18 U.S.C. 4);
(3) Conspiring with one or more persons to commit a crime under any
criminal statute or to defraud the United States, if any party to the
conspiracy does any act to effect the object of the conspiracy (see 18
U.S.C. 371);
(4) Lobbying with appropriated funds (see 18 U.S.C. 1913);
(5) Disloyalty and striking (see 5 U.S.C. 7311, 18 U.S.C. 1918);
(6) Disclosure of classified information (see 18 U.S.C. 793 and 798,
50 U.S.C. 783), and disclosures of trade secrets and other confidential
information (see 18 U.S.C. 1905);
(7) Habitual use of intoxicants to excess (see 5 U.S.C. 7352);
(8) Misuses of a Government vehicle (see 31 U.S.C. 638a(c)(2));
(9) Misuse of the mailing privilege (see 18 U.S.C. 1719);
(10) Deceit in an examination or personnel action in connection with
government employment (see 18 U.S.C. 1917);
(11) Committing fraud or making false statements in a government
matter (see 18 U.S.C. 1001);
(12) Mutilating or destroying a public record (see 18 U.S.C. 2071);
(13) Counterfeiting and forging transportation requests (see 18
U.S.C. 641);
(14) Embezzlement of government money or property (see 18 U.S.C.
641); failing to account for public money (see 18 U.S.C. 643); private
use of public money (see 18 U.S.C. 653); and embezzlement of the money
or property of another person in the possession of an employee by reason
of his government employment (see 18 U.S.C. 654);
(15) Unauthorized use of documents relating to claims from or by the
government (see 18 U.S.C. 285);
(16) Certain political activities (see 5 U.S.C. 7321-7327), and 18
U.S.C. 600, 601, 602, 603, 606, and 607, which apply to civilian
employees and see DoD Directive 1344.10, which applies to military
personnel);
(17) Any person (including a special Government employee) who is
required to register under the Foreign Agents Registration Act of 1938
(see 18 U.S.C. 219), serving the government as an officer or employee
(the section does not apply to retired regular officers who are not on
regular duty, or reserves who are not on active duty or who are on
active duty for training, or a special government employee in any case
in which the department Head certifies to the Attorney General that his
or her employment by the U.S. Government is in the national interest);
(18) Soliciting contributions for gifts or giving gifts to superiors,
or accepting gifts from subordinates (see 5 U.S.C. 7351, which applies
only to civilian employees; regulations set out at D.2.c.(1) in this
part govern military personnel);
(19) Accepting of excessive honoraria (see 2 U.S.C. 44li);
(20) Accepting, without statutory authority, any present emolument,
office or title, or employment of any kind whatever, from any king,
prince, or foreign state by any person holding any office or profit in
or trust of the Federal Government, including all retired military
personnel and regular enlisted personnel (U.S. Constitution, Art. I,
Sec. 9, cl.8, exceptions to this prohibition are authorized under 37
U.S.C. 908);
(21) Union activities of military personnel (10 U.S.C. 976);
(22) Violation of merit system principles (see 5 U.S.C. 2301);
(23) Prohibited personnel practices (see 5 U.S.C. 2302);
(24) Civilian presidential appointees occupying full-time positions,
appointment to which is required to be made with the advice and consent
of the senate, in any calendar year earning outside income in excess of
15 percent of their government salary (see 5 U.S.C. 210, Appendix 4);
(25) Employment of an officer of the Regular Navy or the Regular
Marine Corps, other than a retired officer, by a person furnishing naval
supplies or war materials to the United States (see 37 U.S.C. 801(a)).
(52 FR 23268, June 19, 1987, as amended at 52 FR 29844, Aug. 12,
1987)
32 CFR 40.8 Code of ethics for government service.
Any person in Government service should:
(a) Put loyalty to the highest moral principles and to country above
loyalty to persons, party, or Government department.
(b) Uphold the constitution, laws, and regulations of the United
States and of all governments therein and never be a party to their
evasion.
(c) Give a full day's labor for a full day's pay; giving earnest
effort and best thought to the performance of duties.
(d) Seek to find and employ more efficient and economical ways of
getting tasks accomplished.
(e) Never discriminate unfairly by the dispensing of special favors
or privileges to anyone, whether for remuneration or not; and never
accept for himself or herself or for family members, favors or benefits
under circumstances which might be construed by reasonable persons as
influencing the performance of Governmental duties.
(f) Make no private promises of any kind binding upon the duties of
office, since a Government employee has no private word which can be
binding on public duty.
(g) Engage in no business with the Government, either directly or
indirectly, which is inconsistent with the conscientious performance of
Governmental duties.
(h) Never use any information gained confidentially in the
performance of Governmental duties as a means for making private profit.
(i) Expose corruption wherever discovered.
(j) Uphold these principles, ever conscious that public office is a
public trust.
32 CFR 40.9 Statement of affiliations and financial interests (DD Form
1555).
(a) DoD personnel required to submit statements. (1) DoD personnel
required to file a Statement of Affiliations and Financial Interests (DD
Form 1555) are as follows:
(i) The following DoD personnel must submit initial and annual
Statements of Affiliation and Financial Interests (DD Form 1555) unless
they are expressly exempted or are required to file a Financial
Disclosure Report (SF 278);
(A) Commanders and deputy commanders of major installations,
activities, and operations, as determined by the heads of the DoD
Components,
(B) DoD personnel classified at GS/GM-15 or below under 5 U.S.C.
5332, or a comparable pay level under other authority, and members of
the military below the Rank 0-7, when the official responsibilities of
such personnel require them to exercise judgment in making Government
decisions or in taking Government action for contracting or procurement,
regulating or auditing private or other nonfederal enterprise, or other
activities in which the final decision or action may have economic
impact on the interest or any nonfederal activity,
(C) Special Government employees, except those exempted in paragraph
(a)(2)(i) of this section.
(D) DoD personnel serving in positions in which the agency determines
that the duties and responsibilities of the position require the officer
or employee to file such a report to avoid a conflict of interest or the
appearance of a conflict of interest and to carry out the purpose of any
statute, Executive order, or regulation applicable to or administered by
that DoD officer or employee.
(ii) DoD personnel in positions described in paragraph (a)(1)(i) of
this section may be excluded from all or a portion of the reporting
requirements when the DoD Component Head or the Designated Agency Ethics
Official (DAEO) determines that:
(A) The duties of the position are such that the possibility of a
conflict of interest or appearance of a conflict of interest is remote,
(B) The duties of the position are at such a level of responsibility
that the submission of a non-public financial disclosure report is not
necessary because of the inconsequential effect on the integrity of the
United States Government, or
(C) The use of an existing or alternative approved procedure is
adequate to prevent any possible conflict of interest or appearance of a
conflict of interest.
(iii) DoD Components shall ensure that personnel officers, in
coordination with supervisors and ethics counselors, develop systems to
identify all positions and persons required to file DD Forms 1555. See
FPM Chapter 734, paragraphs 2 through 3.
(2) Except as provided in paragraphs (a)(2) (i) and (ii) of this
section, each member of any DoD advisory committee or DoD Component
advisory committee who is not required to file an SF 278, before
appointment, shall file a DD Form 1555.
(i) Categories of special Government employees who are not required
to file DD Forms 1555, unless specifically required by the DAEO to do
so, are as follows:
(A) Physicians, dentists, and allied medical specialists engaged only
in providing services to patients,
(B) Veterinarians providing only veterinary services,
(C) Lecturers participating only in educational activities,
(D) Chaplains performing only religious services,
(E) Individuals in the motion picture and television fields who are
utilized only as narrators or actors in DoD productions,
(F) Reservists on active duty for less than 30 consecutive days
during the calendar year.
(ii) The DAEO may determine that the submission of statements is not
necessary for certain positions because of the remoteness of any
impairment of the integrity of the Government and the degree of
supervision and review of the incumbent's work. Such determinations
shall be documented fully and retained by the DAEO of the DoD Component
concerned.
(3) All positions in the categories indicated in paragraph (a)(1) of
this section shall be reviewed annually by the proper supervisor in
consultation with the DAEO or designee.
(i) If a determination is made as a result of this review, that the
incumbent of the position must file a DD Form 1555, he or she shall be
so informed in writing by the proper personnel officer, and the
requirement for such filing will be included in the applicable document
describing the duties and responsibilities of the position.
(ii) A person who believes that he or she has been required
improperly to file a DD Form 1555 may request a review of the decision
through established grievance procedures of the DoD Component.
(b) Content of report. (1) Instructions for completing DD Forms 1555
are included as part of the form (see attachment to this section).
Additional guidance for personnel required to file is available from the
DAEO or designee.
(2) The interest of a spouse, minor child, or any member of one's
household shall be reported as if it were an interest of the individual.
The following interests of a spouse need not be reported:
(i) A final decree of separation,
(ii) An interim or interlocutory decree, or
(iii) A separation agreement formally executed by the parties in
anticipation of its incorporation into a final decree of divorce or
separation.
(3) DoD personnel are not required to submit any information relating
to their connection with or interest in a professional society or a
charitable, religious, social, fraternal, recreational, public service,
civic, or political organization or similar organization not conducted
as a business for profit. Educational and other institutions doing
research and development or related work involving grants of money from
or contracts with the Government shall be included in a person's
statement.
(4) An employee need not disclose the assets of, sources of income
of, or transactions of, a trust if:
(i) The trust is a qualified blind or qualified diversified trust
certified by the Office of Government Ethics and is otherwise reported
on the DD Form 1555 by name of trust and date of execution, or
(ii) The trust is an ''excepted'' trust, defined as follows:
(A) A trust that was not created by the officer or employee, or the
employee's, spouse or dependent child;
(B) Withholdings or sources of income of which the officer or
employee, or spouse or dependent child have no knowledge, and
(C) Which is disclosed as an asset or income source on the report.
(c) Submission and review of statements -- (1) Time of filing -- (i)
Initial statements. Before the assumption of duties, but no later than
45 days following the reporting individual's entry into a position that
requires the filing of the DD Form 1555, the reporting individual shall
file the required statement either with the new superior and supervisor,
or with the DAEO or designee.
(ii) Annual statements. DD Form 1555 shall be filed by October 31 of
each year for all affiliations and financial interests held as of
September 30 of that year. Even though no changes occur, a complete
statement is required.
(iii) Special government employees. Reports from special Government
employees shall be collected initially no later than 30 days following
appointment and thereafter, during any year they actually serve, on
either the same date required of annual filers or a time period that
begins 45 days prior to and extends to the first date the special
Government employee actually provides services to the agency that year.
(iv) Excusable delay. The DAEO or designee may grant a written
extension of time to file a DD Form 1555 when the extension is
necessitated by duty assignment, infirmity, or other good cause. Any
extension in excess of 45 days requires the concurrence of the DAEO or
his or her designee. Any late statement must include a notation of any
extension of time granted.
(2) Submission. (i) Personnel of the Unified Commands shall submit
their statements through their superiors or supervisors to the DAEO or
designee in the Office of the Legal Advisor to the Unified Command.
Commanders who have a dual responsibility as commanders of both joint
commands and DoD Components shall submit their statements through
Military Service channels.
(ii) Military Department and other DoD Component personnel shall
submit their statements through their immediate superiors or supervisors
for review and forwarding to officials designated in the DoD Components
implementing regulations.
(iii) Before the commencement of service or assumption of new duties
and annually thereafter, all statements shall be reviewed and approved
by the DAEO or designee and the immediate superior or supervisor. An
initial review by the certifying official shall be completed within 60
days after the date of filing.
(3) Review. (i) The reviewing official shall review each report to
determine that:
(A) Each item is completed, and
(B) No interest or position disclosed on the form violates or appears
to violate the following:
(1) Any applicable provision of Chapter 11 of Title 18 of the U.S.
Code (Part 1),
(2) The ''Ethics in Government Act of 1978,'' (Pub. L. 95-521, as
amended), and any regulations promulgated thereunder,
(3) Executive Order 11222 as amended, and any regulations promulgated
thereunder, or
(4) Any other related statute or regulation applicable to the
employees of the agency.
(ii) The reviewing official shall not sign and date the report until
the determination described in paragraph (c)(2)(i) of this section is
made. A reviewing official need not audit the report to ascertain
whether the disclosures are correct; disclosures are to be taken at
''face value'' unless there is a patent omission or ambiguity or the
official has independent knowledge of matters outside the report. A
report that is signed by a reviewing official shall signify that the
agency has found that the information in the report discloses no
conflict of interest under applicable laws and regulations and that the
report fulfills the requirements set out in paragraph (c)(2)(ii) of this
section.
(iii) If the reviewing official believes that additional information
is required, the reporting individual shall be notified in writing of
the additional information required and the date by which it must be
submitted. The reporting individual shall submit the required
information directly to the reviewing official.
(iv) If the reviewing official concludes that the report is completed
properly and that no item violates, or appears to violate, applicable
statute or regulation, then such official shall sign and date the
report, and notify the reporting individual in writing that this action
was taken.
(v) DoD personnel shall request submission on their behalf of
required information that is known only to other persons. The
submission may be made with a request for confidentiality that shall be
honored even if it includes a limitation on disclosure to the reporting
individual.
(d) Remedial action. (1) If the reviewing official concludes that
the filing individual is not in compliance with applicable laws or
regulations, the reviewing official shall do the following:
(i) Notify the reporting individual in writing of the preliminary
determination,
(ii) Afford the reporting individual an opportunity for personal
consultation, if practicable,
(iii) Determine what remedial action should be taken to bring the
reporting individual into compliance, and
(iv) Notify the reporting individual in writing of the remedial
action required, indicating a date by which that action must be taken.
(2) Except in unusual situations, which must be documented fully to
the satisfaction of the reviewing official, remedial action shall be
completed within 90 days from the date the reporting individual was
notified that the action is required.
(3) Remedial steps may include the following measures:
(i) Disqualification,
(ii) Limitation of duties,
(iii) Divestiture,
(iv) Transfer or reassignment,
(v) Resignation,
(vi) Exemption under 18 U.S.C. 208(b) or
(vii) Establishment of a qualified blind trust.
(4) When the reviewing official determines that a reporting person
has complied fully with the remedial measures, a notation to that effect
shall be made in the comment section of the DD Form 1555. The reviewing
official then shall sign and date the DD Form 1787 and send written
notice of that action to the reporting individual.
(5) If steps ensuring compliance with applicable laws and regulation
are not taken by the date established, the reviewing official shall
report the matter to the Head of the DoD Component for appropriate
action.
(e) Confidentiality of statements of DoD personnel. Each DD Form
1555 shall be held in confidence. A DoD Component shall not disclose
information from a statement except for good cause, as determined by the
DAEO or designee, or by the Office of Government Ethics. Persons
designated to review and process the statements are responsible for
maintaining the statements in confidence. They shall not allow access
to or disclosure from the statements except to carry out the purposes of
this part. Inspections by Government officials charged with the
responsibility for determining the proper operation of the financial
disclosure reporting system are allowed.
(f) Retention of statements. DD Forms 1555 shall be retained for 6
years from the date of filing.
(g) Penalties (1) Administrative penalties. Any individual failing
to file a report or falsifying or failing to file required information,
may be subject to any appropriate personnel or other action in
accordance with applicable law or regulation, including adverse action.
(2) Criminal liability. Any individual who knowingly or willfully
falsifies information on a report required to be filed under this
enclosure also may be subject to criminal prosecution under 18 U.S.C.
1001.
Insert illus 0606
Insert illus 0607
Insert illus 0608
Insert illus 0609
32 CFR 40.10 Financial disclosure report (SF 278).
(a) DoD personnel required to file SF 278. (1) DoD personnel
required to file a Financial Disclosure Report (SF 278) are in ''covered
positions'' and are as follows (persons required to file SF 278 are not
required to file DD Form 1555):
(i) General and Flag Officers (pay grade 0-7 and above),
(ii) Members of the Senior Executive Service (SES),
(iii) General schedule (GS) employees, Grade 16 and above,
(iv) Personnel (including special Government employees) whose rate of
pay is fixed, other than under the GS, at a rate equal to or greater
than the minimum rate of pay for GS-16 (GS/GM 15s are not required to
file SF 278 even though their pay is higher than that of a GS/GM 16),
(v) Employees in the excepted service in positions of a confidential
or policymaking character (Schedule C employees). This requirement does
not apply to positions that have been excluded by the Director, Office
of Government Ethics.
(2) DoD Components shall ensure that personnel officers, in
coordination with supervisors and Designated Agency Ethics Officials
(DAEO's) or designees, develop systems to identify all positions and
persons required to file SFs 278. See FPM Chapter 734, paragraphs 2 and
3.
(3) A person who is nominated to or assumes a covered position is not
required to file an SF 278 if the Secretary of Defense or DAEO of the
DoD Component concerned determines that the person is not expected
reasonably to perform the duties of the position for more than 60 days
in the calendar year. If the person performs the duties of the office
or position for more than 60 days in the calendar year, an SF 278 shall
be filed within 15 days after the 61st day of duty.
(4) A person otherwise required to file an SF 278, but who is
expected to perform the duties of the position for less than 130 days in
the calendar year, may request a waiver of any or all reporting
requirements from the Director, Office of Government Ethics, if the
person is not a full-time employee of the Government, is able to provide
specially needed services, and does not have outside employment or
financial interests that may create a conflict of interest.
(b) Contents of reports. Instructions for completing SFs 278 are
included as part of the report forms. Additional guidance for personnel
in covered positions is available from the DAEO or designee.
(c) Submission and review of reports -- (1) Time of filing -- (i)
Nomination report. Each civilian nominated to a position requiring
senate confirmation shall submit an SF 278 according to the procedures
established by the DoD Component concerned. The DoD Component shall
ensure that a full and complete SF 278 is filed within 5 days of the
transmittal of the nomination to the Senate. General and flag officers
and 0-7 designees are not required to file nomination reports with
respect to their nomination for promotion to 0-7 and above.
(ii) Assumption report. DoD personnel shall submit an SF 278 before
assuming a covered position. If the individual previously has complied
with the annual filing requirement for the current year at another
agency or has provided a nomination report, a copy of that current SF
278 may be submitted as the assumption report.
(iii) Annual report. DoD personnel, including special Government
employees, occupying a covered position for more than 60 days during a
calendar year shall submit an SF 278 annually according to the
procedures established by the DoD Component concerned.
(iv) Termination report. DoD personnel occupying a covered position
shall submit an SF 278 no sooner than 15 days before and no later than
30 days after the date of departure from that position. The termination
report will cover the portion of the present calendar year up to the
date of termination and, if the annual report has not yet been filed,
the preceding calendar year.
(2) Submission. (i) Regulations of the individual DoD Component
shall prescribe the offices to which SFs 278 shall be submitted for
review. Procedures shall include supervisory and/or legal review before
submission to the DAEO.
(ii) OSD civilian presidential appointees and DAEOs shall submit
their SFs 278 directly to the General Counsel, OSD, for final review.
(iii) DoD personnel employed by or assigned to OSD and OJCS shall
submit their SFs 278 to their immediate superior or supervisor for a
preliminary review and then to the General Counsel, OSD, or designee,
for final review.
(iv) Personnel on detail to other Executive Branch agencies shall
follow the filing procedures of those agencies.
(3) Review. (i) The reviewing official shall review each report to
determine that:
(A) Each item is completed; and
(B) No interest or position disclosed on the form violates or appears
to violate the following:
(1) Any applicable provision of chapter 11 of title 18 of the U.S.
Code (Part 1),
(2) The ''Ethics in Government Act of 1978,'' (Pub. L. 95-521 as
amended), and any regulations promulgated thereunder,
(3) Executive Order 11222, as amended, and any regulations
promulgated thereunder, or
(4) Any other related statute or regulation applicable to the
employees of the agency.
(ii) The reviewing official shall not sign and date the report until
the determination described in paragraph (c)(3)(i) of this section, is
made. A reviewing official need not audit the report to ascertain
whether the disclosures are correct; disclosures are to be taken at
''face value'' unless there is a patent omission or ambiguity or the
official has independent knowledge of matters outside the report. A
report that is signed by a reviewing official shall signify that the
agency has found that the information in the report discloses no
conflict of interest under applicable laws and regulations and that the
report fulfills the requirements set out in paragraph (c)(3)(i).
(iii) If the reviewing official believes additional information is
required, the reporting individual shall be notified in writing of the
additional information required and the date by which it must be
submitted. The reporting individual shall submit the required
information directly to the reviewing official.
(iv) If the reviewing official concludes that the report is completed
properly and that no item violates, or appears to violate, applicable
statute or regulation, then such official shall sign, date the report,
and notify the reporting individual in writing that this action was
taken.
(v) DoD personnel shall request submission on their behalf, of
required information that is known only to other persons. The
submission may be made with a request to confidentiality that shall be
honored even if it includes a limitation on disclosure to the reporting
individual.
(d) Remedial action. (1) If the reviewing official concludes that
the filing individual is not in compliance with applicable laws or
regulations, the reviewing official shall do the following:
(i) Notify the reporting individual in writing of the preliminary
determination,
(ii) Afford the reporting individual an opportunity for personal
consultation, if practicable,
(iii) Determine what remedial action should be taken to bring the
filing individual into compliance, and
(iv) Notify the reporting individual in writing of the remedial
action required, indicating a date by which that action must be taken.
(2) Except in unusual situations, which must be documented fully to
the satisfaction of the reviewing official, remedial action shall be
completed within 90 days from the date the reporting individual was
notified that the action is required.
(3) Remedial steps may include the following measures:
(i) Disqualification,
(ii) Limitation of duties,
(iii) Divestiture,
(iv) Transfer or reassignment,
(v) Resignation,
(vi) Exemption under 18 U.S.C. 208(b) or
(vii) Establishment of a qualified blind trust.
(4) When the reviewing official determines that a reporting person
has complied fully with the remedial measures, a notation to that effect
shall be made in the comment section of the SF 278. The reviewing
official then shall sign and date the SF 278 and send written notice of
that action to the reporting individual.
(5) If steps ensuring compliance with applicable laws and regulations
are not taken by the date established, the reviewing official shall
report the matter to the Head of the DoD Component for appropriate
action. The Office of Government Ethics and the Attorney General also
shall be notified.
(e) Public availability of reports. SFs 278 must be made available
for public examination upon request 15 days after the report is filed
unless otherwise exempted under law. Receipt of the report by a DoD
Component for final review constitutes official filing and establishes
the date from which the 15 days shall run. This means the reports are
available to the public before final review is completed. Reporting
persons personally are responsible for ensuring that their reports are
accurate, complete, and timely.
(f) Retention of reports. SFs 278 shall be retained for 6 years from
the date of filing.
(g) Penalties. Compliance with the financial disclosure provisions
shall be enforced by administrative, civil, or criminal remedies,
including the following:
(1) Action within the DoD component. The Head of the DoD Component
may take appropriate action, including a change in assigned duties or
adverse action, in accordance with applicable law or regulation, against
any person who fails to file an SF 278, or who falsifies or fails to
report required information.
(2) Action by the Attorney General. The head of the DoD Component is
required to refer to the Attorney General the name of any person whom he
or she has reasonable cause to believe has failed willfully to file an
SF 278 on time or has falsified or failed willfully to file information
required to be reported. Such referral does not bar additional
administrative or judicial enforcement. The Attorney General may bring
a civil action in the U.S. District Courts against any person who
knowingly and willfully falsifies or fails to file or report any
required information. The court may assess a civil penalty not to
exceed $5,000. Knowing or willful falsification of information required
to be filed also may result in criminal prosecution under 18 U.S.C. 1001
leading to a fine of not more than $10,000, or imprisonment for not more
than 5 years, or both.
(3) Misuse of reports. (i) The Attorney General may bring a civil
action against a person who obtains or uses an SF 278 filed under the
Ethics in Government Act (Pub. L. 95-521), for the following reasons:
(A) Any unlawful purpose,
(B) Any commercial purpose, other than by news and communications
media for dissemination to the general public,
(C) Determining or establishing the credit rating of any individual,
(D) Directly or indirectly, for the solicitation of money for any
political, charitable, or other purpose.
(ii) The court in which such action is brought may assess a penalty
in any amount not to exceed $5,000. This is in addition to any other
legal remedy available.
32 CFR 40.11 Statement of Employment -- Regular Retired Officers (DD
Form 1357).
Insert illus. 0618
Insert illus. 0619
32 CFR 40.12 Reporting of DoD and defense related employment (DD Form
1787).
(a) Personnel required to file. Personnel required to file a Report
of DoD and Defense Related Employment (DD Form 1787) are as follows:
(1) Each person who has left service or employment with a DoD
Component, who:
(i) Is a retired military officer or former military officer who
served on active duty at least 10 years and who held, for any period
during that service, the pay grade of O-4 or above, or a former civilian
officer or employee whose pay rate at any time during the three year
period prior to the end of DoD service or employment was equal to or
greater than the minimum GS-13 rate at that time;
(ii) Within the two year period immediately following the termination
of service or employment with a DoD Component, is employed by a defense
contractor who, during the year preceding employment, was awarded
$10,000,000 or more in defense contracts; and
(iii) Is employed by or performs service for the defense contractor
and at any time during a year directly receives compensation of or is
salaried at a rate of $25,000 per year or more from the defense
contractor (''compensation'' is received by a person if it is paid to a
business entity with which the person is affiliated in exchange for
services rendered by that person).
(2) Each civilian officer and employee of a DoD Component who:
(i) Is employed at a pay rate equal to or greater than the minimum
rate for GS-13,
(ii) Within the two year period prior to the effective date of
service or employment with the DoD Component, was employed by a defense
contractor who, during a year, was awarded $10,000,000 or more in
defense contracts, and
(iii) Was employed by or performed services for the defense
contractor and at any time during that year received compensation of or
was salaried at a rate of $25,000 per year or more at any time during
employment (''compensation'' is received by a person if it is paid to a
business entity with which the person is affiliated in exchange for
services rendered by the person).
(b) Content of report. Instructions for completing DD Forms 1787 are
included as part of the form (see attachment to this section).
Additional guidance for personnel required to file is available from the
Designated Agency Ethics Official (DAEO) or designee.
(c) Submission and review of reports -- (1) Time of filing. (i)
Current DoD officers and employees shall file a report within 30 days
after entering employment or service with any DoD Component.
(ii) Former DoD officers and employees shall file an initial report
within 90 days after the date on which the individual began employment
with the defense contractor.
(iii) Former DoD officers and employees shall file subsequent reports
each time, during the two-year period after service or employment with
the DoD Component ended, that the person's duties with the defense
contractor significantly change or the person begins employment with
another defense contractor. Such reports shall be filed within 30 days
after the date of the change.
(2) Submission. (i) Civilians shall submit their reports to the DAEO
of the present or former DoD Component in accordance with DoD Component
procedures.
(ii) Retired or former military officers shall submit their reports
to the DAEO of their Military Departments.
(3) Review. (i) The reviewing official shall review each report to
determine that:
(A) Each item is completed, and
(B) No interest or position disclosed on the form violates or appears
to violate the following:
(1) Any applicable provision of Chapter 11 of Title 18 of the U.S.
Code (Part 1),
(2) The Ethics in Government Act of 1978 (Pub. L. 95-521), as
amended, and any regulations promulgated thereunder,
(3) Executive Order 11222, as amended, and any regulations
promulgated thereunder, or
(4) Any other related statute or regulation applicable to the
employees of the agency.
(ii) The reviewing official shall not sign and date the report until
the determination described in paragraph (c)(3)(i) of this section is
made. A reviewing official need not audit the report to ascertain
whether the disclosures are correct; disclosures are to be taken at
''face value'' unless there is a patent omission or ambiguity or the
official has independent knowledge of matters outside the report. A
report that is signed by a reviewing official shall signify that the
agency has found that the information in the report discloses no
conflict of interest under applicable laws and regulations and that the
report fulfills the requirements set out in paragraph (c)(3)(i) of this
section.
(iii) If the reviewing official believes that additional information
is required, the reporting individual shall be notified in writing of
the additional information required and the date by which it must be
submitted. The reporting individual shall submit the required
information directly to the reviewing official.
(iv) If the reviewing official concludes that the report is completed
properly and that no item violates, or appears to violate, applicable
statute or regulation, then such official shall sign and date the report
and notify the reporting individual in writing that this action was
taken.
(v) DoD personnel shall request submission on their behalf of
required information that is known only to other persons. The
submission may be made with a request for confidentiality that shall be
honored even if it includes a limitation on disclosure to the reporting
individual.
(d) Remedial action. (1) If the reviewing official concludes that
the filing individual is not in compliance with applicable laws or
regulations, the reviewing official shall do the following:
(i) Notify the reporting individual in writing of the preliminary
determination;
(ii) Afford the reporting individual an opportunity for personal
consultation, if practicable;
(iii) Determine what remedial action should be taken to bring the
reporting individual into compliance; and
(iv) Notify the reporting individual in writing of the remedial
action required, indicating a date by which that action must be taken.
(2) Except in unusual situations, which must be documented fully to
the satisfaction of the reviewing official, remedial action shall be
completed within 90 days from the date the reporting individual was
notified that the action is required.
(3) Remedial steps may include the following measures:
(i) Disqualification,
(ii) Limitation of duties,
(iii) Divestiture,
(iv) Transfer or reassignment,
(v) Resignation,
(vi) Exemption under 18 U.S.C. 208(b) or
(vii) Establishment of a qualified blind trust.
(4) When the reviewing official determines that a reporting person
has complied fully with the remedial measures, a notation to that effect
shall be made in the comment section of the DD Form 1787. The reviewing
official then shall sign and date the DD Form 1787 and send written
notice of that action to the reporting individual.
(5) If steps ensuring compliance with applicable laws and regulations
are not taken by the date established, the reviewing official shall
report the matter to the head of the DoD Component for appropriate
action. The Office of Government Ethics also shall be notified.
(e) Public availability of reports. DD Forms 1787 must be made
available for public examination upon request 15 days after the report
is filed unless otherwise exempted pursuant to law. Receipt of the
report by a DoD Component for final review constitutes official filing
and establishes the date from which the 15 days shall run. This means
the reports are available to the public before final review is
completed. Reporting persons are personally responsible for ensuring
that their reports are accurate, complete, and timely.
(f) Retention of reports. DD Forms 1787 shall be retained for 6
years from the date of filing.
(g) Penalties -- (1) Administrative penalties. Any individual
failing to file a report or falsifying or failing to file required
information, may be subject to any applicable personnel or other action
in accordance with applicable law or regulation, including adverse
action. Administrative penalty of up to $10,000 may be imposed.
(2) Criminal liability. Any individual who knowingly or willfully
falsifies information on a report required to be filed under this
section may also be subject to criminal prosecution under 18 U.S.C.
1001.
Insert illus 0626
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32 CFR 40.13 Reporting of potential employment contracts.
(a) Personnel required to file. Under 10 U.S.C. 2397a ''covered
defense officials'' (as defined in paragraph (e)(1) of this section) who
participated in the performance of a procurement function in connection
with a contract awarded by any DoD Component, who contacts, or is
contacted by, any representative of that contractor regarding his or her
future employment with that defense contractor, shall file reports and
disqualifications.
(b) Content of report -- (1) Reports of contact. ''Covered defense
officials'' shall promptly report the contact described in paragraph (a)
of this section to the supervisor or superior, and the Designated Agency
Ethics Official (DAEO) or designee of the DoD Component. Reports of
contact shall include the following:
(i) The name, title, agency address and telephone number of reporting
official,
(ii) The name of the defense contractor concerned,
(iii) The date of each contact covered by the report, and
(iv) A brief description of the substance of each contact.
(2) Disqualifications. ''Covered defense officials'' shall
disqualify themselves from all participation in the performance of
procurement functions relating to contracts of the defense contractor,
for any period for which future employment opportunities for the
official have not been rejected by the official or the defense
contractor. Such disqualification shall be in writing and shall be
filed with the supervisor or superior, the immediate subordinates, and
the DAEO or designee. Reports of disqualification shall accompany
reports of contacts and shall include the following:
(i) The name of contractor,
(ii) Extent of disqualification (this may be a description of duties
the official may not perform as a result of the disqualification),
(iii) Identification of the individual or office that shall handle
duties during disqualification period, and
(iv) An explanation of any other steps required to avoid potential
conflict of interest.
(3) Cancellations. Disqualifications are considered to remain in
effect until canceled in writing. Such cancellations shall include:
(i) A copy of the original disqualification,
(ii) An explanation of the reason for the cancellation, and
(iii) The effective date of the cancellation.
(4) Limited exception. A defense official is not required to report
the first contact initiated by a defense contractor regarding employment
or to disqualify him or herself, if the official terminates discussion
immediately. If an additional contact of the same or similar nature is
made by or with the contractor, the official shall report the contact
and all contacts of the same or similar nature by or with the contractor
during the 90-day period ending on the date the additional contact is
made.
(c) Submission and review of reports -- (1) Time of filing. Reports
of contact and disqualifications shall be filed immediately after the
contact and disqualifications. Cancellations shall be filed when
applicable.
(2) Submission. The original of reports of contact,
disqualifications and cancellations shall be filed with the supervisor
or superior, the immediate subordinates, and the DAEO or designee.
(3) Review. (i) The reviewing official shall review each report of
contact disqualification and cancellation to determine that the document
contains all required information.
(ii) The date and time of receipt shall be noted on each report.
(iii) The DAEO or designees shall counsel DoD officers and employees
and provide guidance in specific instances regarding the need for
reports or disqualification action.
(iv) If a written opinion of the DAEO or designee is desired, it
shall be given in response to a written request from the officer or
employee. Such report for an opinion shall contain a full account of
the relevant facts.
(v) There shall be a rebuttable presumption in favor of a covered
defense official that failure to report a contact with a defense
contractor, or failure to disqualify himself from participation in the
performance of certain procurement functions, is not a violation if the
defense official has received an opinion in writing from the DAEO
stating that a report or disqualification by the official was not
necessary.
(d) Remedial action. (1) Supervisors and DAEO's or designees taking
remedial actions in connection with any report shall keep a brief record
of such action with each report.
(2) The Head of each DoD Component shall establish procedures to
identify persons who fail to file required reports or to take necessary
disqualification action, shall establish procedures for agency hearings,
and shall establish other implementing regulations as required by 10
U.S.C. 2397a.
(e) Special definitions. For purposes of this section terms used
shall have the following meanings (see the basic part for other
definitions):
(1) Covered defense official. Any individual serving as a civilian
officer or employee of the Department of Defense in a position for which
the rate of pay is equal to or greater than the minimum rate of pay for
GS-11 or any officer on active duty in the Armed Forces in a pay grade
of 0-4 or higher.
(2) Defense contractor. An individual or business entity that
provides services, supplies, or both (including construction) to any
component of the Department of Defense under a contract directly with
the Department of Defense. Individuals and business entities holding
contracts with a combined net cost of not more than $25,000 in any
calendar year shall not be considered defense contractors, during such
year.
(f) Penalties -- (1) Administrative penalties. Penalties that may be
imposed pursuant to component regulations may include the following:
(i) Prohibition of employment with the defense contractor for up to
10 years from date of separation from employment or services with the
Department of Defense,
(ii) Administrative penalty not to exceed $10,000 under 10 U.S.C.
2397a.
(2) Criminal liability. Any individual who knowingly or willfully
falsified information on a report required to be filed under this
section may also be subject to criminal prosecution under 18 U.S.C.
1001.
32 CFR 40.14 Employment restrictions on certain former DoD officials.
(a) Scope of restrictions concerning entities from which compensation
may not be received. Pursuant to 10 U.S.C. 2397b certain former DoD
officers and employees shall not receive compensation from a major
defense contractor for a two year period, beginning on the date the
former officer or employee separated from the Department of Defense.
This restriction prohibits the acceptance of compensation from a
particular major defense contractor only if the former officer or
employee performed the duties listed in paragraph (b) of this section,
related to that same defense contractor.
(b) Personnel to whom restriction apply. Individuals in the
following categories are subject to the restrictions:
(1) Individuals who served in a civilian position for which the rate
of pay was equal to the minimum rate of pay for a GS-13 or higher, and
individuals who served in the Armed Forces in pay grades of 0-4 or
higher, if such individuals:
(i) Spent the majority of their working days during the last two
years of DoD service performing a procurement function relating to a DoD
contract, at a site or plant that was owned or operated by a contractor,
and which was the principal location of their performance of that
procurement function; or
(ii) Performed, on a majority of their working days during the last
two years of DoD service, a procurement function relating to a major
defense system and, in the performance of such a function, participated
on any occasion personally and substantially in a manner involving
decision-making responsibilities with respect to a contract for that
system through contact with the contractor.
(2) Individuals who served in a civilian position for which the rate
of pay was equal to the minimum rate of pay for a Senior Executive
Service position or higher, and individuals who served as members of the
Armed Forces in the pay grade of 0-7 or higher, if such individuals
during the last two years of DoD service acted as follows:
(i) As a primary representative of the United States in the
negotiations with a defense contractor of a defense contract in an
amount in excess of $10,000,000 (the actual contractual action taken by
the individual must have been in an amount in excess of $10,000,000), or
(ii) As a primary representative of the United States in the
negotiation of a settlement of an unresolved claim of such a defense
contractor in an amount in excess of $10,000,000. An unresolved claim
shall be, for the purposes of this part, valued by the greater of the
amount of the claim or the amount of the settlement.
(c) Advice from the designated agency ethics official. (1) Any
person may, before accepting compensation, request that the Designated
Agency Ethics Official (DAEO) of the individual's former DoD Component
provide advice on the applicability of 10 U.S.C. 2397b and this part to
the acceptance of such compensation.
(2) A request for advice shall be in writing and shall contain all
relevant information.
(3) If the DAEO receives a request for advice, the DAEO or designee
shall issue a written opinion in response thereto not later than 30 days
after receipt of all relevant information pertaining to the request.
(4) If the advice rendered by the DAEO or designee states that the
law and this part are inapplicable, and that the individual may accept
the compensation from the contractor, then there shall be a conclusive
presumption that the acceptance of the compensation is not a violation
of 10 U.S.C. 2397b.
(d) Remedial action. (1) Any DAEO or designee who becomes cognizant
of an apparent violation of these prohibitions shall seek an
investigation by the Inspector General, DoD, or by the Inspector General
of the applicable Military Department, or their designees.
(2) After receiving the results of the investigation, the Secretary
of Defense may refer the case to the Department of Justice.
(e) Penalties. Pursuant to 10 U.S.C. 2397b(b)(1) individuals who
knowingly violate the prohibitions of this Section are subject to a
civil fine of up to $250,000.
(f) Effective date. The effective date of 10 U.S.C. 2397b is April
16, 1987. This statute does not preclude the continuation of contractor
employment begun before the effective date, nor does it prohibit the
acceptance of compensation for such employment. The statute does not
apply if DoD service terminated prior to the effective date of 10 U.S.C.
2397b.
(g) Special definitions. For the purpose of this section, terms used
shall have the following meanings:
(1) Armed Forces. The term ''Armed Forces'' does not include the
U.S. Coast Guard.
(2) Contractor-operated facility. Includes any facility leased or
loaned by the United States to the contractor by written agreement. It
does not include facilities located on a military installation where
contractor personnel may work, but which is not either leased or loaned
by the United States to the contractor by written agreement.
(3) Compensation. Includes any payment, gift, benefit, reward,
favor, or gratuity that is provided directly or indirectly for services
rendered by the person accepting such payment and which has a fair
market value in excess of $250. Compensation shall be deemed indirectly
received if it is paid to an entity other than the individual, in
exchange for services performed by the individual.
(4) Defense contractor. An entity that:
(i) Contracts directly with the Department of Defense to supply the
Department of Defense with goods or service; or
(ii) Controls or is controlled by an entity described in paragraph
(g)(4)(i) of this section or
(iii) Is under common control with an entity described in paragraph
(g)(4)(i) of this section. The term does not include an affiliate or
subsidiary of an entity described in paragraph (g)(4)(i) of this section
if clearly not engaged in the performance of a defense contract, nor
does it include a state or local government.
(5) Designated agency ethics official. An officer or employee of a
component who has been appointed, pursuant to component procedures, to
administer the provisions of the Ethics in Government Act. The term is
abbreviated, DAEO. The DAEO for the Office of the Secretary of Defense
is the General Counsel, OSD.
(6) DoD component. The Office of the Secretary of Defense (OSD), the
Military Departments, the Organization of the Joint Chiefs of Staff
(OJCS), the Unified and Specified Commands, the Inspector General, and
the Defense Agencies, including nonappropriated fund activities. The
term does not refer to offices, divisions, or sections that are part of
a larger Defense Agency.
(7) Employee. This term does not include a part-time employee, as
defined by 5 CFR 340.202 or a special Government employee.
(8) Major defense contractor. Any business entity which, during the
fiscal year preceding the fiscal year in which compensation is first
received, was a defense contractor that defense contracts in a total
amount equal to or greater than $10,000,000.
(9) Major defense system. A combination of elements that will
function together to produce the capability requied to fulfill a mission
need. Elements may include hardware, equipment, software, or any
combination thereof, but excludes construction or other improvements to
real property. A system shall be considered a major defense system if:
(i) The Department of Defense is responsible for the system and the
total expenditures, for research, development, test and evaluation for
the system are estimated to exceed $75,000,000 (based on fiscal year
1980 constant dollars) or the eventual total expenditure for procurement
exceeds $300,000,000 (based on fiscal year 1980 constant dollars); or,
(ii) The system is designed a ''major system'' under 10 U.S.C.
2302(5) by the head of the agency responsible for the system.
(10) Majority of working days. The majority of days actually worked
during the period, excluding weekends, holidays, days of leave or sick
days when the employee did not actually work. A work day on which an
individual performed a procurement function includes any day on which
the individual worked on that procurement function for any amount of
time during that day.
(11) Negotiation and settlement. Exchange of views between
Government representatives and a contractor regarding respective
liabilities and responsibilities of the parties on a particular contract
or claim. It includes deliberations regarding contract specifications,
terms of delivery, allowability of costs, pricing of change orders, etc.
(12) Primary government representative. If more than one Government
representative is involved in any particular transaction, the official
or officials supervising the Government's effort in that matter shall be
the primary Government representative or representatives. To act as a
''representative'' requires personal and substantial participation in
the transaction, by personal presence, telephone conversation, or
similar involvement with representatives of a defense contractor. For
example, if a contracting officer had been the person conducting all
negotiations with a major defense contractor on a defense contract
action of $10,000,000 or more, but a superior (e.g., an Assistant
Secretary) intervened directly in the negotiation process to make a
decision, he or she might become a primary Government representative for
that defense contract action.
(13) Procurement related function (or ''procurement function''). Any
function relating to:
(i) The negotiation, award, administration or approval of a contract;
(ii) The selection of a contractor;
(iii) The approval of a change in a contract;
(iv) The performance of quality assurance, operational and
developmental testing, the approval of payment, or auditing under a
contract; or
(v) The management of a procurement program.
(14) Separation of a member of the Armed Forces. A person who is a
retired or former member of the Armed Forces shall be considered to have
been separated from service in the Department of Defense on the date of
the person's discharge or release from active duty.
(15) Special government employee. A person who is retained,
designated, appointed, or employed to perform, with or without
compensation, for a period not to exceed 130 days during any period of
365 consecutive days, temporary duties either on a full-time or
intermittent basis. The term also includes a reserve officer who is
serving on active duty involuntarily or for training for any length of
time, and one who is serving voluntarily on extended active duty for 130
days or less. It does not include enlisted personnel.
(52 FR 23268, June 19, 1987; 52 FR 29845, Aug. 12, 1987)
32 CFR 40.15 Administrative enforcement provisions.
(a) Applicability and scope. (1) These provisions shall apply to all
DoD Components, other than those DoD Components that establish
provisions of their own in accordance with this section and which
receive approval from the General Counsel, OSD.
(2) This section is adopted pursuant to 18 U.S.C. 207 and 10 U.S.C.
2397, 2397a, and 2397c which require the Department of Defense to
develop administrative procedures for the review and disposition of
reported violations of post employment restrictions and reporting
requirements.
(3) The procedures set forth in this part may be used, at the
discretion of the General Counsel, OSD, to accomplish administrative
enforcement of all statutes and regulations which would require or allow
their use.
(b) Policy -- (1) Administrative Procedure Act (APA). In cases in
which an Administrative Procedure Act (APA) hearing is required by
statute, APA rules shall be used. See 5 U.S.C. 551 et seq.
(2) Rules of Evidence. In the discretion of the hearing examiner,
the rules of evidence may be relaxed from those established in the
Federal Rules of Evidence. Evidence must be relevant and material to be
considered.
(3) Burden of proof. The Department of Defense bears the burden of
proof. A violation must be established by substantial evidence.
(4) Protection of privacy. The privacy of suspected individuals or
entities shall be protected by safeguarding information concerning
allegations and evidence, especially before initiation of administrative
disciplinary action.
(5) Repoprting suspected violations. (i) If any DoD officer or
employee has reason to suspect that an individual or entity has violated
a statute or regulation, as referenced in paragraphs (a) (2) and (3) of
this section the suspicion shall be reported immediately to the
Designated Agency Ethics Official (DAEO) or designee.
(ii) If other individuals have reason to suspect that an individual
or entity has violated a statute or regulation, the suspicion may be
reported to any DoD officer or employee.
(c) Responsibilities -- (1) The General Counsel, Office of the
Secretary of Defense (GC, OSD) shall:
(i) Administer the provisions of this section for all DoD Components,
except for cases arising in DoD Components that establish their own
approved provisions in accordance with paragraph (a)(1) of this section,
(ii) Receive reports of alleged violations from the Inspector
General, Department of Defense (IG, DoD),
(iii) Receive memoranda of results of preliminary investigations from
the IG, DoD,
(iv) Review copies of reports and memoranda from the IG, DoD, to
determine if it is reasonable to believe there may have been a
violation,
(v) Provide copies of reports and memoranda regarding cases where it
is reasonable to believe there may have been a violation, to the
Director, Office of Government Ethics (OGE),
(vi) Provide copies of reports and memoranda regarding cases where it
is reasonable to believe there may have been a violation, to the
Criminal Division, Department of Justice (DoJ),
(vii) Coordinate investigations and administrative disciplinary
actions with the DoJ Criminal Division, unless DoJ advises that criminal
proceedings will not be pursued,
(viii) Initiate administrative disciplinary action, in cases where it
is reasonable to believe there may have been a violation, by providing
the suspected individual or entity with notice as described in paragraph
(d)(2) of this section,
(ix) Request the head of the DoD Component in which the case arose to
appoint a Government representative to present evidence of violations,
(x) In cases not subject to the APA, request the head of a DoD
Component, other then the DoD Component in which the case arose, to
appoint a hearing examiner,
(xi) In cases subject to the APA, request Administrative Law Judge to
be appointed by the Office of Administrative Law Judges to serve as
hearing examiner,
(xii) Receive written appeals from suspected individuals or entities,
(xiii) Make appeal decisions, when appeals are timely submitted,
after reviewing the findings of facts and decision of the hearing
examiner and the appeal,
(xiv) Impose administrative disciplinary sanctions when applicable,
(xv) Mail copies of appeal decisions and/or any sanctions to be
imposed to the suspected individuals of entities along with statements
notifying of the right to seek judicial review of administrative
decisions.
(2) The Inspector General, Department of Defense (IG, DoD), shall:
(i) Receive reports of suspected violations directly from DAEOs or
designees,
(ii) Submit copies of reports of suspected violations to the GC, OSD,
(iii) Perform preliminary investigations of cases reported by DAEOs
or designees,
(iv) Submit memoranda reporting results of investigations to the GC,
OSD.
(3) The Designated Agency Ethics Official (DAEO) or Designee shall:
(i) Receive reports of suspected violations from DoD personnel and
other individuals,
(ii) Review reports of suspected violations to determine whether the
report is frivolous,
(iii) Submit written reports of suspected violations, when the
information regarding the violations is not frivolous, directly to the
IG, DoD, and not through ordinary DoD Component channels.
(4) The Hearing Examiner shall:
(i) Hear each case in accordance with the hearing procedures
specified in paragraph (d)(4) of this section,
(ii) Make a written report of all findings of fact and conclusions of
law, including mitigating factors,
(iii) Make a written decision and recommendation of administrative
disciplinary sanctions to be imposed,
(iv) Submit the report, the decision, and any recommendations to the
GC, OSD, through the DoD Component Head,
(v) Mail a copy of the report, the decision, and any recommendations
to the suspected individual or entity,
(d) Procedures -- (1) Initiation of administrative disciplinary
action. (i) Administrative disciplinary actions are initiated by
providing suspected individuals or entities with notice of the report of
a violation and notice of the intention to begin administrative
disciplinary proceedings at least 20 calendar days prior to the
beginning of such proceedings.
(ii) When hearings are required by statute, a hearing shall be
conducted before imposition of administrative disciplinary sanctions
unless the suspected individual or entity waives the hearing in writing
in accordance with paragraphs (d)(2) (iii) and (iv) of this section.
(iii) When hearings are not required by statute, a hearing may be
requested in writing by the suspected individual or entity in accordance
with paragraphs (d)(2) (v) and (vi) of this section.
(2) Content of notice. Notice to initiate administrative
disciplinary proceedings shall include the following:
(i) A statement of allegations, and the basis thereof, sufficiently
detailed to enable the suspected individual or entity to prepare an
adequate defense,
(ii) Notification of the right to a hearing when a hearing is
required by statute,
(iii) The procedure for waiving the right to appear at the hearing
when a hearing is required by statute,
(iv) A copy of a written waiver that shall include a statement that
the signer understands that the signer has the right to appear at a
hearing and that administrative disciplinary sanctions may be imposed
even if the signer does not appear at a hearing,
(v) When a hearing is not required by statute, a statement to the
effect that if the suspected individual or entity fails to request such
a hearing in writing, the Department of Defense may take administrative
disciplinary action which may result in imposition of administrative
disciplinary sanctions,
(vi) The procedure for requesting a hearing when a hearing is not
required by statute,
(vii) Notice that the failure to appear at a scheduled hearing shall
constitute a constructive waiver of the right to appear at the hearing,
(viii) The date, time, and place of a scheduled hearing; however,
suspected individuals or entities shall be scheduled to appear for
hearings in the Federal judicial district in which the individual or
entity resides or in the Federal judicial district in which the alleged
violation occurred.
(ix) A statement of hearing rights in accordance with paragraph
(g)(4)(i) of this section.
(x) A copy of these Administrative Enforcement Provisions ( 40.14).
(3) Hearing examiners. (i) Hearing examiners shall be attorneys with
not less than three years experience in the practice of law susequent to
admission to the bar.
(ii) A hearing examiner shall be impartial. An individual who has
participated in the decision to initiate proceedings shall not serve as
a hearing examiner in those proceedings.
(iii) In cases not subject to the APA, the GC, OSD, shall request the
Head of a DoD Component, other than the DoD Component in which the case
arose, to appoint a hearing examiner.
(iv) In cases subject to the APA, Administrative Law Judges (ALJ)
shall be used as hearing examiners. The GC, OSD, shall forward a
written request to the Office of Administrative Law Judges, Office of
Personnel Management. See 5 U.S.C. 3344. The request shall contain the
following:
(A) The requisite authority requiring an APA hearing for the
particular statutory violation.
(B) The status of the case,
(C) The tentative hearing date,
(D) The point of contact within the Department of Defense and,
(E) An acknowledgment that that request is being made on a
reimbursable, intermittent basis.
(4) Hearings. (i) The hearing examiner shall have the power to do
the following:
(A) Administer oaths and affirmations,
(B) Issue subpoenas authorized by law,
(C) Rule on offers of proof and receive relevant evidence,
(D) Take depositions or have depositions taken when justice shall be
served,
(E) Regulate the course of the hearing,
(F) Hold conferences for the settlement or simplification of the
issues by comment from the suspected individual or entity and the
Government representative,
(G) Dispose of procedural requests or similar matters, and
(H) Make decisions, in writing, on the merits of the particular case,
as well as written recommendations of administrative disciplinary
sanctions.
(ii) Suspected individuals and entities shall have hearing rights
which include the following:
(A) The right to self-representation, or to be represented by
counsel,
(B) The right to introduce evidence and witnesses and the right to
examine adverse witnesses,
(C) The right to stipulate to facts,
(D) The right to present oral argument,
(E) The right to receive a transcript or recording of the proceedings
upon request, and
(F) Additional rights that may be in the Administrative Procedure
Act, if applicable.
(iii) Before the hearing examiner makes a decision, or the GC, OSD,
makes an appeal decision, the suspected individual or entity and the
Government representative may submit the following material for
consideration:
(A) Proposed findings and conclusions, or
(B) Exceptions to the decisions of the hearing examiner, or to the
tentative decisions of the GC, OSD, and
(C) Supporting reasons for the exceptions or proposed findings or
conclusions.
(iv) The record shall reflect the ruling on each finding, conclusion,
or exception. All decisions by the hearing examiner or the GC, OSD,
shall be a part of the record, along with the reasons and basis for such
findings and decisions.
(5) Appeals. (i) Within 20 days following the date on the report and
recommendations from the hearing examiner, the suspected individual or
entity may file an appeal with the GC, OSD. An appeal shall be in
writing, and shall set forth all errors of fact, law, or both, together
with the reasons, alleged to exist in the report from the hearing
examiner.
(ii) Extensions of time to file an appeal may be granted at the
discretion of the GC, OSD, upon receipt of a written request for an
extension from the individual or entity concerned.
(iii) The GC, OSD, shall make a written appeal decision if any appeal
is submitted timely, after reviewing the report of findings of facts,
the decision, and recommendations from the hearing examiner.
(iv) If the appeal decision is not in accordance with the report of
findings of facts, the decision, or recommendations from the hearing
examiner, the reasons shall be specified.
(v) The decision of the GC, OSD, shall be the final administrative
determination. The appeal decision shall be mailed to the suspected
individual or entity along with a statement, if applicable, that the
individual or entity may seek judicial review of the administrative
determinations.
(6) Administrative sanctions. (i) The GC, OSD, may take appropriate
disciplinary action when indicated by the outcome of a case involving a
violation of 18 U.S.C. 207 by:
(A) Prohibiting the individual or entity from making, on behalf of
any other person except the United States, any formal or informal
appearance before, or any oral or written communication with the intent
to influence, to the Department of Defense, its officers or employees,
or any matter of business for a period not to exceed five years. This
may be enforced by directing DoD officers and employees to refuse to
participate in any such appearance, or to accept any such communication.
(B) Barring the individual or entity from employment by the
Department of Defense for a period not to exceed five years.
(ii) The GC, OSD, may take appropriate disciplinary action whenever
indicated by the outcome of a case involving violations of 10 U.S.C.
2397, 2397a, or 2397c by:
(A) Imposing an administrative penalty, not to exceed $10,000.
(B) With respect to violations of 10 U.S.C. 2397a, imposing an
additional administrative penalty of a particular amount if the
individual is determined to have accepted or continued employment with a
defense contractor during a 10-year period beginning with the date of
separation from Government service.
(iii) The GC, OSD, may take other appropriate disciplinary action
when indicated by the outcome of a case in accordance with the laws or
regulations violated.
(7) Judicial review. Any individual or entity found in violation as
described, and against whom an administrative sanction is imposed, may
seek judicial review of the final administrative determination.
32 CFR 40.15 PART 40a -- DEFENSE CONTRACTING: REPORTING PROCEDURES ON
DEFENSE RELATED EMPLOYMENT
Authority: 10 U.S.C. 2397.
32 CFR 40a.1 Department of Defense contractors receiving awards of $10 million or more.
32 CFR 40a.1 Fiscal Year 1991
A2 Construction Co., Inc.
A&S Tribal Industries
AAI Corp.
AAR Brooks & Perkins Corp.
ABB Flakt, Inc.
ACC Construction Co. Inc.
AEL Defense Corp.
AM General Corp.
AMCA International Construction Corp.
AT&T Communications, Inc.
AV Technology Corp.
Abbott Laboratories
Accudyne Corp.
Action Mfg. Co.
Advanced Marine Enterprises
Aepco, Inc.
Aerojet
Aeromritime Mediterranean Corp.
Aeroquip Corp.
Aerosonic Corp.
Aerospace Corp., The
Afram Lines, Ltd., USA
Agip Petroli SPA
Agusta International SA
Ahntech, Inc.
Air Transport International
Air Treads, Inc.
Airfoil Textron
Aksarben Foods, Inc.
Al Harbi Trading & Contracting
Al Khudair Contracting Est.
Al Maqam Contracting
Al Rashid Trading & Contracting
Alabama Power Co.
Alascom, Inc.
Alberici J.S. Construction Co.
Aleman Food Service, Inc.
Aleutian Constructors
Alisud Handling SPA
All Bann Enterprises, Inc.
All Star Maintenance, Inc.
Alliant Techsystems, Inc.
Allied Petro Inc.
Allied Signal Aerospace Co.
Allied Signal, Inc.
Amerada Hess Corp.
America West Airlines, Inc.
American Airlines, Inc.
American Apparel Brands
American Auto Carriers
American Construction Co., Inc.
American Cyanamid Co., Inc.
American Dredging Co.
American Fuel Cell & Coated Fabrics
American Insurance Co., The
American Management Systems, Inc.
American President Lines, Ltd.
American Systems Corp.
American Systems Engnr. Corp.
American Telephone & Telegraph Co.
American Trans Air & Connie Kalitta Services
Ameriqual Foods, Inc.
Ametek, Inc.
Amoco Corp.
Amron Corp.
Amstar Corp.
Analysis & Technology, Inc.
Analytic Science Corp., The
Analytic Services, Inc.
Analytical Systems Engineering Corp.
Anderson, Roy Corp.
Andrulis Research Corp.
Applied Technology Associates, Inc.
Aqua Chem, Inc.
Aral AG
Arcata Associates, Inc.
Arco Products Co.
Arinc Research Corp.
Armada Hoffler Construction Co.
Armar Shipowning Trading Co.
Armored Vehicle Technologies Assoc.
Armtec Defense Products Co.
Arral Industries, Inc.
Arrow Air, Inc.
Ashland Oil, Inc.
Assurance Technology Corp.
Astronautics Corp. of America
Atlantic Industries, Inc.
Atlantic Marine, Inc.
Atlantic Research Corp.
Atlas Processing Co.
Automar I Corp.
Automated Machine Products
Automated Sciences Group, Inc.
Automation Research Systems, Ltd.
Avco Corp.
Avco Research Laboratory, Inc.
Avondale Industries, Inc.
B&C Corp.
BAMSI, Inc.
BBDO Worldwide, Inc.
BDM International, Inc.
BEI Electronics, Inc.
BOC Group, Inc.
BWA GMBH & Co. KG
Babcock & Wilcox Co., The
Bahrain National Oil Co.
Balfour Beatty, Inc.
Ball Corp.
Baltimore Gas & Electric Co.
Barnhart Douglas E. Inc.
Barrett Refining Corp.
Bartlett Cooke Jr. Construction Co.
Base Ten Systems, Inc.
Basil & Trataros JV
Basil, Frank E. Inc.
Bateson, J.W. Co., Inc.
Bath Iron Works Corp.
Batson Cook of Florida, Inc.
Battelle Memorial Institute
Baxter Healthcare, Inc.
Baxter International, Inc.
Bay Tankers, Inc.
Bean Dredging Corp.
Bechtel National, Inc.
Beech Aerospace Services, Inc.
Beech Aircraft Corp.
Bell Helicopter Textron & Boeing Co., JV
Bell Helicopter Textron, Inc.
Belleville Shoe Mfg. Co.
Bender Shipbuilding & Repair Co.
Beneco Enterprises, Inc.
Bethlehem Steel Corp.
Bicoastal Corp.
Blaine Construction Corp.
Blount, Inc.
Blue Cross & Blue Shield of South Carolina
Blue Star Foods Inc.
Bodell Construction Co.
Boeing Aerospace & Electronics
Boeing Co. & Sikorsky Aircraft JV
Boeing Co., The
Boeing Computer Support Services
Boeing Louisiana, Inc.
Bollinger Machine Shop & Shipyard
Bolt Beranek & Newman, Inc.
Booz Allen & Hamilton, Inc.
Boro Developers, Inc.
Bowman, John Inc.
Bozell, Jacobs, Kenyon & Eckhardt
Braintree Maritime Corp.
Braswell Services Group, Inc.
Brazos Roofing International
Bremer Lagerhaus Gesellschaft
Bren Tronics, Inc.
Bridgestone/Firestone, Inc.
Bristol Myers Squibb Co.
British Aerospace PLC
Brown & Root, Inc.
Brown & Root International
Brown & Root Services Corp.
Browing Construction Co.
Brunswick Corp.
Buckner & Moore, Inc.
Burgos Fred Construction Co.
Burns & McDonnell Engineering
Burnside Ott Aviation Training Center
C3, Inc.
C&S Transit Corp.
C Construction Co., Inc.
CACI, Inc.
CACI International, Inc.
CAE Industries, Ltd.
CAE Link Corp.
CAS, Inc.
CBC Enterprises, Inc.
CBIS Federal
CF Holdings Corp.
CFM International, Inc.
CFS Aircargo, Inc.
CRSS, Inc.
CTA, Inc.
Cadillac Gage Textron, Inc.
Calcasieu Refining Co.
California Microwave, Inc.
California Pacific Associates
Calspan Corp.
Caltex Oil Products Co.
Camel Mfg. Co.
Campbell Soup Co.
Cantu Services, Inc.
Carder, W.H. & Souter, JV
Carnegie Mellon University
Carolina Power & Light Co.
Carothers Construction, Inc.
Carter Welsh, Inc.
Casde Corp.
Caterpillar, Inc.
Cav Iniseo Irti & Figli SPA
Cedar Chemical Co.
Center Core, Inc.
Center for Naval Analyses
Central Gulf Lines, Inc.
Centre Mfg. Co., Inc.
Century Technologies, Inc.
Cessna Aircraft Co., Inc.
Chamberlain Mfg. Corp.
Chem Nuclear Systems, Inc.
Chemical Waste Management
Chestnut Shipping Co.
Chevron USA, Inc.
Childers Construction Co.
Chouest Edison Offshore, Inc.
Chromalloy Gas Turbine Corp.
Chrysler Technologies Airborne Systems
Cincinnati Electronics Corp.
Cinpac, Inc.
Clamshell Buildings, Inc.
Clarke Detroit Diesel Allison
Coastal Aruba Refining NV
Coastal Eagle Point Oil Co.
Coastal Group, Inc.
Coastal Industries, Inc.
Coastal Refining & Marketing
Codar Technology, Inc.
Colbar, Inc.
Colejon Mechanical Corp.
Coleman Research Corp.
Collins International Service Co.
Colsa, Inc.
Coltec Industries, Inc.
Columbia Research Corp.
Comarco, Inc.
Combustion Engineering, Inc.
Comcon, Inc.
Communications Satellite Corp.
Compania Espanola De Petroleos
Comprehensive Technologies International
Comptek Research, Inc.
Computer Dynamics, Inc.
Computer Sciences Corp.
Computer Sciences & Raytheon JV
Conagra, Inc.
Conax Corp.
Conner Bros. Construction Co.
Conoco, Inc.
Conopco, Inc.
Consolidated Electronics, ITT & Westinghouse JV
Consolidated Services, Inc.
Contel Corp.
Continental Airlines, Inc.
Continental Maritime of San Diego
Continental Wire & Cable Co.
Contraves USA, Inc.
Control Data Corp.
Conventional Munitions Systems
Cook J.W. & Sons, Inc.
Cornell University
Cory Bros. Shipping, Ltd.
Craddock Terry, Inc.
Crest Tankers, Inc.
Crestview Aerospace Corp.
Crowley Maritime Corp.
Cubic Corp.
Commins Engine Co., Inc.
Cunard Lines, Ltd.
Curtis Wright Flight Systems
DBA Systems, Inc.
DCS Corp.
DJ Mfg. Co.
DLI Engineering Corp.
Dakota Tribal Industries, Inc.
Dames & Moore
Dana Corp.
Dawson Construction Co.
Day & Zimmerman, Inc.
Day & Zimmerman/Basil Corp. JV
De Bra, Fred B. Co., The
Deere, John Capital Corp.
Del Jen, Inc.
Delavan, Inc.
Delta Air Lines, Inc.
Delta Altama Corp.
Delta Dental Plan of California
Delta Industries
Denro, Inc.
Detroit Diesel Corp.
Detyens Shipyards, Inc.
Deutsche Bundespost
Deval Corp.
Devils Lake Sioux Mfg. Corp.
Dial Corp.
Diamond Shamrock Refining
Diagnostic Retrieval Systems
Digital Equipment Corp.
Digital Equipment GMBH
Digitron Tool Co., Inc.
Dillingham Construction Corp.
Diversified Group, Inc.
Dixie Pavers, Inc.
Dock Express Contractors, Inc.
Donaldson Co., Inc.
Douglas Aircraft Co.
Dragon Services, Inc.
Draper, Charles Stark Laboratories, Inc.
Dresser Industries, Inc.
Dreyfus Louis Corp.
Dreyfus Louis Energy
Du Pont, E.I. De Nemours & Co.
Dual & Associates, Inc.
Dubai Drydocks
Dutra Construction Co.
Dutra Dredging Co.
Dynamic Instruments, Inc.
Dynamic Science, Inc.
Dynamic Controls Corp.
Dynamics Corp. of America
Dynamics Research Corp.
Dynaweld, Inc.
Dyncorp
Dynetics, Inc.
EC III JV
ECC International Corp.
ECI Construction, Inc.
EDP Enterprises, Inc.
EER Systems Corp.
EG&G, Inc.
EG&G Special Projects
EG&G Washington Analytical Services Center
ERC International, Inc.
ESL, Inc.
ETM Electromatic, Inc.
E Systems, Inc.
Eagle Technology, Inc.
Earth Technology Corp.
Eastern Computers, Inc.
Eastern Technologies, Ltd.
Eastman Kodak Co.
Eaton Corp.
Ebasco Services, Inc.
Economics Technology Associates
Edcar Industries, Inc.
Edo Corp.
El Paso Refining Co., Ltd.
Eldyne, Inc.
Electro Methods, Inc.
Electronic Data Systems Corp.
Electronic & Space Corp.
Electrospace Systems, Inc.
Elf France
Emco, Inc.
Emergency Medical Services Assoc.
Engineered Air Systems, Inc.
Engineering & Economics Research
Engineering Science, Inc.
Ensco, Inc.
Entwistle Co., The
Environmental Research Institute of Michigan
Environmental Science & Engineering
Environmental Technologies Group
Esso Nederland BV
Europe Combined Terminals
Evergreen International Airlines
Executive Resource Associates
Exide Battery Corp.
Exide Electronics Group, Inc.
Expeditor Transport Corp.
Exporter Transport Corp.
Expressor Transport Corp.
Exxon Co., USA
Exxon Corp.
F2M, Inc.
F&H Construction Co.
FEL Corp.
FKW, Inc.
FL Aerospace Holdings Corp.
FMC Corp.
FMS Corp.
FN Mfg., Inc.
Fabrique Nationale Herstal SA
Fairchild Aircraft Corp.
Fairchild Industries, Inc.
Falcon Carriers, Inc.
Falcon Microsystems, Inc.
Farrell Lines, Inc.
Federal Express, Northwest Airlines, PanAm World Airway, Tower Air &
United Parcel Service
Federal Computer Corp.
Federal Data Corp.
Federal Hoffman, Inc.
Felec Services, Inc.
Figgie International, Inc.
Filters Co., Inc.
Fisher Food, Ltd.
Flight International Group, Inc.
Flightsafety International, Inc.
Flightsafety Service Co.
Florida North Shipyards, Inc.
Florida Ordnance Co.
Fluke, John Mfg. Co., Inc.
Fluor Corp.
Fokker NV
Fort Biscuit Co.
Foundation Health Corp.
Four F Corp.
Freightliner Corp.
Frontier Engineering, Inc.
Fru Con Construction Corp.
G&C Enterprises, Inc.
G&F Co.
GE Mobile Communications
GEC Avionics, Ltd.
GEC Marconi Electronic Systems
GEC Sensors, Ltd.
GLR Constructors JV
GSX Government Services, Inc.
GTE Government Systems Corp.
GTE Hawaiian Telephone Co.
GTE Spacenet Corp.
GTE Sylvania Commercial Products
Garcia, Luis E. Inc.
Gencorp, Inc.
General Atomics
General Communication, Inc.
General Directorate of PTT
General Dynamics Corp.
General Electric Co.
General Mills, Inc.
General Motors Corp.
General Offshore Corp.
General Physics Corp.
General Research Corp.
General Ship Corp.
Genrad, Inc.
Gentex Corp.
Geo Centers, Inc.
Georgia Institute of Technology
Georgia Tech Research Corp.
Giant Industries, Inc.
Gibraltar, P.R. Inc.
Glaxo, Inc.
Global Distributors
Golden Mfg., Co., Inc.
Goodrich, B.F. Co., The
Goodyear Tire & Rubber Co., The
Government Technology Services
Granite Construction Co.
Grasby Ionics
Grasseto USA & Incisa USA
Great Lakes International, Inc.
Green Construction Co.
Greenbrier Industries, Inc.
Greenland Contractors
Grey Advertising, Inc.
Grimberg, John C. Co., Inc.
Grumman Aerospace Corp.
Grumman Corp.
Grumman Data Systems Corp.
Grumman Technical Services, Inc.
Gulf Coast Trailing Co.
Gulfstream Aerospace Corp.
Gunver Mfg. Co., Inc.
Guyco Engineering Co.
HR Textron, Inc.
HSU Ronald Construction Co.
Hall Contracting Corp.
Hamilton Standard Electronics
Hamm, E. L. & Associates, Inc.
Harbert International, Inc.
Harcon Inc. & S.A. Gonzales
Hardaway Co., Inc., The
Harding, Lawson Associates, Inc.
Harris Corp.
Harsco Corp.
Hawaiian Airlines, Inc.
Hawaiian Electric Co., Inc.
Hawaiian Independent Refinery
Haworth, Inc.
Hazeltine Corp.
Hellenic Fuel & Lubricant Ind.
Hensel Phelps Construction Co.
Hercules Engines, Inc.
Hercules, Inc.
Hermes Consolidated, Inc.
Heroux, Inc.
Hess Oil Virgin Island Corp.
Hewlett Packard Co.
Hilton Systems, Inc.
Hoffman Corp.
Hoffmann La Roche, Inc.
Holston Defense Corp.
Honam Oil Refinery Co., Ltd.
Honeywell Federal Systems, Inc.
Honeywell, Inc.
Hooks, Mike, Inc.
Horizons Technology, Inc.
Hormel George A. & Co.
Hughes Aircraft & Raytheon Co. JV
Hughes Aircraft Co.
Hughes Danbury Optical Systems
Hughes Training Systems, Inc.
Hunt Building Corp.
Huttenbauer E. & Son, Inc.
Hydraulics International, Inc.
Hydroscience, Inc.
Hyman George Construction Co.
Hyster Co.
I Net, Inc.
IBP, Inc.
ICI Americas, Inc.
IFR Systems, Inc.
IIT Research Institute
ILC Dover
ILC Industries, Delaware
IPAC
ITT & Martin Marietta JV
ITT Corp.
ITT Federal Services Corp.
Illinois Glove Co.
Imo Industries, Inc.
Imperial Oil Co., Inc.
Information Handling Services Group
Information Spectrum, Inc.
Information Systems Networks Corp.
Information Technology, Inc.
Infotec Development, Inc.
Ingalls Shipbuilding, Inc.
Institute for Defense Analyses
Integrated Microcomputer Systems
Integrated Systems Analysts
Integrity Management International
Intel Corp.
Intelcom Group Corp.
Intelcom Support Services, Inc.
Intercontinental Mfg. Co.
Intergraph Corp.
Intermarine, USA
Intermetrics, Inc.
International Business Machines Corp.
International Marine Carriers
International Technology Corp.
Interstate Construction, Inc.
Interstate Electronics Corp.
Interstate Landscaping Co., Inc.
Intevac, Inc.
Irvin Industries, Inc.
Isometrics, Inc.
Israel Aircraft Industries, Ltd.
Israel Military Industries
Israel Shipyards, Ltd.
Isratex, Inc.
J&J Maintenance, Inc.
JT Construction Co., Inc.
Jacobs Engineering Group, Inc.
James, T.L. & Co., Inc.
Janes Information Group, Inc.
Jaycor
Jersey Central Power & Light Co.
Jianas Bros. Packaging Co.
Johns Hopkins University
Johnson Bros. Corp.
Johnson Controls, Inc.
Johnson, G.E. Construction Co.
Johnson, S.E. & Son, Inc.
Jonathan Corp., The
Jones Group, Inc., The
Jordan, W.M. Co., Inc.
Jorgensen, Roy Associates, Inc.
Jowett, Inc.
Junghans Feinwerktechik
K&F Industries, Inc.
KDI Precision Products, Inc.
KPMG Peat Marwick
Kaiser Aerospace & Electronics Corp.
Kaman Aerospace Corp.
Kaman Sciences Corp.
Kay & Associates, Inc.
Kaysam Corp. of America
Kearfott Guidance & Navigation Corp.
Keco Industries, Inc.
Keflavik Contractors
Kellogg Sales Co.
Kennedy, Roger P. General Contractor
Kestrel Shipholding Corp.
Key Airlines, Inc.
Kidde, Inc.
Kiewit & Al Johnson JV
Kilgore Corp.
Kimac Enterprises
Kingston Constructors, Inc.
Kollmorgen Corp.
Korea Electric Power Corp.
Kovatch Corp.
Kraft General Foods, Inc.
Kuk Dong Construction Co., Ltd.
LSA, Inc.
LTV Aerospace & Defense Co.
La Crosse Plumbing Supply Co.
Lajas Industries
Lally Mfg. Corp.
Land O Frost, Inc.
Landmark Petroleum, Inc.
Lane Construction Corp.
Larson, Al Boat Shop
Lathrop Construction Co.
Law Environmental, Inc.
Lawrence Associates, Inc.
Lear Siegler Management Services
Learjet Corp.
Leland Electrosystems, Inc.
Life Cycle Engineering, Inc.
Light Helicopter Turbine Engine Co.
Lilly, David B. Co., Inc.
Litton Systems, Inc.
Loc Performance Products Co.
Lockheed Aeromod Center, Inc.
Lockheed Aeronautical Systems Co.
Lockheed Aircraft Service Co.
Lockheed Corp.
Lockheed Missiles & Space Co.
Lockheed Sanders, Inc.
Lockheed Support Systems, Inc.
Locus, Inc.
Loggins Meat Co., Inc.
Logicon, Inc.
Logistic Services International
Logistics Management Institute
Logistics Support Group
Loral Corp.
Lord & Son Construction Co.
Lord Corp.
Lott Constructors, Inc.
Lucas Aul
Lucas Western, Inc.
Luhr Bros., Inc.
Lykes Bros. Steamship Co., Inc.
MCC Construction Corp.
MCI Telecommunications Corp.
MSM Security & Patrol Service
Mac H.B. Inc.
Maersk Line, Ltd.
Magann, W.F. Corp.
Magnavox Government & Industrial Electronics Co.
Mandex, Inc.
Manhattan Construction Co.
Mantech International Corp.
Mantech, VSE, & Potomac Research JV
Mapco, Inc.
Mar, Inc.
Mar Ship Operators, Inc.
Marino Construction Co., Inc.
Marion Merrell Dow, Inc.
Mark Diversified, Inc.
Marquardt Transportation, Inc.
Marriott Corp.
Mars, Inc.
Martin Baker Aircraft Co., Ltd.
Martin Electronics, Inc.
Martin Marietta Corp.
Martin Marietta, Diehl Co's., Thorn & Thompson JV
Martin Marietta Corp. & Westinghouse Electric Co. JV
Mason Chamberlain, Inc.
Mason Hanger Silas Mason, Inc.
Massachusetts Institute of Technology
Maxwell Laboratories, Inc.
Mayer, Oscar Foods Corp.
McCarthy Construction Co.
McCarty Corp., The
McDonnell Aircraft Co.
McDonnell Douglas Corp.
McDonnell Douglas Electronic Systems
McDonnell Douglas Helicopter Co.
McDonnell Douglas Missile & Space Systems Co.
McDonnell Douglas Space Systems Co.
McDonnell Douglas Training Systems, Inc.
McKnight Construction Co., Inc.
McLaughlin Research Corp.
McMullan, Robert & Son, Inc.
McMullen, John J. Associates, Inc.
McRae Industries, Inc.
Merck & Co., Inc.
Metal Trades, Inc.
Metcalf & Eddy, Inc.
Metric Systems Corp.
Metro Machine Corp.
Metters Industries, Inc.
Michael Industries, Inc.
Michelin Tire Corp.
Michigan, State of
Mid Atlantic Petroleum Co.
Midcon, Inc.
Midgard DSAG
Midwest Foundation Corp.
Mil Ray Food Co., Inc.
Milcom Systems Corp.
Miles, Inc.
Military Construction Corp.
Miller Herman, Inc.
Mills Mfg. Corp.
Miltope Corp.
Mine Safety Appliances Co.
Minnesota Mining & Mfg. Co.
Mip Instandsetzungsbetric
Mission Research Corp.
Mitre Corp.
Mobil Corp.
Modern Technologies Corp.
Mohamed A. Kharafi
Montgomery, J.M. Consulting Engineers
Moon Engineering Co., Inc.
Morgen & Oswood Construction Co.
Morrison Knudsen Co., Inc.
Mortenson, M. A. Companies
Motor Oils Hellas Corinth Refinery
Motorola Communications & Electronics
Motorola, Inc.
Munro & Co., Inc.
Murphy, G.W. Construction Co.
NASP National Contractor Team
NCR Corp.
NUS Corp.
Nabisco Brands, Inc.
Natco Limited Partnership
National Academy of Science
National Airmotive Corp.
National Beef Packing Co.
National Emergency Service
National Industries for the Blind
National Shipping Co. of Saudi Arabia
National Steel & Shipbuilding Co.
National Systems & Research Co.
National Technologies Association
Nations, Inc.
Navajo Refining Co.
Navcom Defense Electronics, Inc.
Navcom Systems, Inc.
Nelsons, R.T. Painting Service
Nero & Associates, Inc.
Nestle Foods Corp.
Network Equipment Technologies, Inc.
Neuman Bros. Inc.
New Mexico, State of
New Mexico State University
New York Shipyard
Newberg, Gust K. Construction Co.
Newimar SA
Newport News Shipbuilding & Dry Dock Co.
Nichols Research Corp.
Nimas Corp.
Norden Systems, Inc.
Norfolk Dredging Co., Inc.
Norfolk Shipbuilding & Dry Dock Corp.
Norse, Inc.
North American Mechanical Services
North Atlantic Industries, Inc.
North Carolina Dept. of Human Resources
Northern Telecom, Inc.
Northrop Corp.
Northrop Worldwide Aircraft Services, Inc.
Northwest Enviro Service, Inc.
Nova Group, Inc.
Nuclear Research Corp.
OH Materials Corp.
ORC Industries, Inc.
Ocean Star Shipping, Inc.
Ocean Technology, Inc.
Octagon Process, Inc.
Oil Refineries, Ltd.
Okinawa Electric Power Co.
Oklahoma Gas & Electric Co.
Olin Corp.
Olin Ordnance
Olin Winchester
Omni Contractors, Inc.
Orbital Sciences Corp.
Oregon Freeze Dry, Inc.
Oregon Iron Works, Inc.
Orincon Corp.
Oshkosh Truck Corp.
Outdoor Venture Corp.
Owl International, Inc.
PA GMBH
PA Holdings Corp.
PHH Homequity Corp.
PHP Healthcare Corp.
PPG Industries, Inc.
PRC Environmental Management
PRC, Inc.
Pacer Systems, Inc.
Pacific Architects & Engineers, Inc.
Pacific Scientific Co.
Pacific Ship Repair & Fabrication
Pacific Sierra Research Corp.
Pacifica Services, Inc.
Pall Land & Marine Corp.
Pan American World Airways
Par Technology Corp.
Para Flite, Inc.
Parker Hannifin Corp.
Parsons, Ralph M. Co., The
Patrol Ofisi A S Genel Mud
Patton Tully Transportation Co.
Peabody Construction Co., Inc.
Peerless Petrochemicals, Inc.
Peirce Phelps, Inc.
Pemco Aeroplex, Inc.
Pence, Howard W. Inc.
Penn Metal Fabricators, Inc.
Pennsylvania State University
Pentastar Electronics, Inc.
Perkin Elmer Corp., The
Petroleos Del Mediterraneo SA
Petroleos Del Notre
Pfizer, Inc.
Philip Morris Companies, Inc.
Philipp Holzmann AG
Phillips Petroleum Co.
Physics International Co.
Picker International, Inc.
Pickus Construction & Equipment Co.
Pietrus Foods, Inc.
Pile Foundation, Inc.
Pillsbury Co., The
Pine Bluff Sand & Gravel Co.
Piquniq Management Corp.
Pizzagalli Construction Co.
Placid Oil Co.
Planning Systems, Inc.
Polaroid Corp.
Post Telephone & Telegraph Ministry
Potomac Electric Power Co.
Potomac Systems Engineering
Power Conversion, Inc.
Prestolite Electric, Inc.
Pride Products, Inc.
Pride Refining, Inc.
Prime Computer, Inc.
Proctor & Gamble Distributing Co.
Propper International, Inc.
Puerto Rico Marine Management
Puerto Rico Sun Oil Co., Inc.
Pulau Electronics Corp.
Pulsar Credit Corp.
Purvis Systems, Inc.
QED Systems, Inc.
Quaker Oats Co., The
Questech, Inc.
Quintron Corp.
R&D Associates
R&D Maintenance Services
RJO Enterprises, Inc.
Racal Communication, Inc.
Radian Corp.
Radian, Inc.
Rados, Steve P. Inc.
Rafael Armaments Development
Ram Systems GMBH
Rand Corp., The
Rantec Microwave & Electronics
Raven Industries, Inc.
Raymond Engineering, Inc.
Raytheon Co.
Raytheon Service Co.
Raytheon Support Services, Co.
Refinery Associates of Texas
Remington Arms Co., Inc.
Repsol Petroleo SA
Republic Health Corp.
Research & Development Laboratories
Research Analysis & Maintenance
Research Management Corp.
Resource Consultants, Inc.
Rexon Technology Corp.
Reyes Industries, Inc.
Reynolds Metals Co.
Reynolds, R. J. Tobacco Co.
Rice, James Ed
Right Away Foods Corp.
Riverside Research Institute
Robbins Gioia, Inc.
Rockwell International Corp.
Rockwell Power Systems
Roe Enterprises, Inc.
Rohm & Haas Co.
Rohr Industries, Inc.
Rolls Royce, Inc.
Rosemount, Inc.
Rosenblatt M. & Son, Inc.
Royal Maid Association for the Blind
Royal Norwegian Naval Material
Rubatex Corp.
Rubicon Tankers, Ltd.
Ruscon Corp.
Rutter Rex, J.H. Mfg. Co., Inc.
Ryan Co., Inc.
Ryan Walsh, Inc.
S&H Mechanical Contractors
SAIC Engineering, Inc.
SCI Systems, Inc.
SCI Technology, Inc.
SFA, Inc.
SKF USA, Inc.
SPD Technologies, Inc.
SRI International
SRS Technologies
ST Research Corp.
Sabreliner Corp.
Saft America, Inc.
Samcorp General Contractors
San Diego Community College District
Sanders & AEL JV
Sargent Fletcher Co.
Sargent Industries, Inc.
Saudi Operations & Maintenance
Schafer, W. J. Associates, Inc.
Schlosser, W. M. Co., Inc.
Schneider, Inc.
Science Applications International Corp.
Scientific Atlanta, Inc.
Scientific Research Corp.
Sea Container America, Inc.
Sea Land Service, Inc.
Sealift, Inc.
Sechan Electronics, Inc.
Select Investigative Services
Sellers Oil Co., Inc.
Selm Servizi Elettrici Montedi
Semcor, Inc.
Sequa Corp.
Serv Air, Inc.
Service Engineering Co., Inc.
Shand Construction, Inc.
Sharp, George G., Inc.
Shell Guam, Inc.
Shell Oil Co.
Sherikon, Inc.
Shin Cheon Co., Ltd.
Short Brothers PLC
Sidran, Inc.
Siemens Corp.
Siemens Medical Systems, Inc.
Sierra Nevada Corp.
Silicon Graphics, Inc.
Simmonds Precision Products
Simon Gloster Saro, Ltd.
Sippican, Inc.
Sisters of Charity
Smithkline Beecham Corp.
Smiths Industries, Inc., USA
Smoot, Sherman R. Co.
Softech, Inc.
Sohio Oil Co.
Sonalysts, Inc.
Sonatech, Inc.
Sony Corp of America
South Carolina, State of
South Coast Terminals, Inc.
Southeast Atlantic Cargo Operators
Southeastern Equipment Co., Inc.
Southern Air Transport
Southern Contracting Co.
Southern Packaging & Storage Co.
Southwest Marine, Inc.
Southwest Mobile Systems Corp.
Southwest Petro Chem, Inc.
Southwest Research Institute
Southwind Construction Corp.
Space & Sensors Associates
Space Applications Corp.
Space Data Corp.
Sparta, Inc.
Sparton Corp.
Spaw Glass Construction, Inc.
Spectrum Emergency Care, Inc.
Sperry Marine, Inc.
Ssangyong Oil Refining Co., Ltd.
Standard Products Co., The
Stanford Telecommunications
Stanford University
Star Food Processing, Inc.
Stellar Industries, Inc.
Stena Rederi AB
Sterimatics Corp.
Sterling Federal Systems, Inc.
Stevedoring Services of America
Stollar, R. L. & Associates
Storage Technology Corp.
Strand, Inc.
Strong Bill Enterprises, Inc.
Sumitomo Electric Fiber Optics
Sun Country
Sun Microsystems, Inc.
Sun Refining & Marketing Co.
Sundstrand Corp.
Sundt Corp.
Support Systems Associates
Supreme Beef Processors, Inc.
Sverdrup Technology, Inc.
Swift Eckrich, Inc.
Swiftships, Inc.
Synetics Corp.
Synoptic Systems Corp.
Syntex Laboratories, Inc.
Syscon Corp.
System Planning Corp.
System Resources Corp.
Systems Control Technology
Systems Engineering & Management Co.
Systems Engineering Associates
Systems Exploration, Inc.
Systems Research & Applications Corp.
TGS Technology, Inc.
TRW, Inc.
Tadiran Israel Electronic Industries
Taiyo Oil Co., Ltd.
Talley Defense Systems, Inc.
Tampa Shipyards, Inc.
Target Sportswear, Inc.
Techmatics, Inc.
Technical & Management Services Corp.
Technical Systems, Inc.
Technology Applications, Inc.
Technology Management & Analysis Corp.
Tecolote Research, Inc.
Tecom, Inc.
Tektronix, Inc.
Teledyne Industries, Inc.
Telephonics, Corp.
Tennessee Apparel Corp.
Tennier Industries, Inc.
Tenoco Oil Co., Inc.
Terry Mfg. Co.
Tesoro Alaska Petroleum Co.
Teval Corp.
Texaco Caribbean, Inc.
Texaco Refining & Marketing Co.
Texas Capital Contractors, Inc.
Texas Instruments, Inc.
Texas Utilities Electric Co.
Texcom, Inc.
Textron, Inc.
Therm, Inc.
Thiokol Corp.
Thompson, J. Walter Co.
Thyssen Henschel AG
Ti & Martin AAWS-M JV
Tiber Construction Co.
Tiburon Systems, Inc.
Tilley Constructors & Engineers
Todd Pacific Shipyards Corp.
Tokyo Denryoku KK
Tower Construction Co., Inc.
Tracor Aerospace, Inc.
Tracor Applied Sciences, Inc.
Tracor, Inc.
Trak International, Inc.
Trans Tec Services
Trans World Airlines, Inc.
Translant, Inc.
Transtac Management Corp.
Treadwell Corp.
Triax Pacific, Inc.
Trimble Navigation, Ltd.
Trinity Marine Group
Triton Marine Construction
Triwell Marketing & Refining, Inc.
Truetech, Inc.
Turtle Mountain Mfg. Co.
UNC, Inc.
URS Co.
U.S. Oil & Refining Co.
U.S. Sprint Communications Co.
Uniformed Services Benefit Plans
Union Carbide Chemical & Plastics Co.
Union Corp.
Union Explosives Rio Tinto SA
Union Underwear Co., Inc.
Uniroyal, Inc.
Unisys Corp.
Unisys Defense Systems, Inc.
United Airlines, Inc.
United Engineers & Constructors
United International Engineers
United Technologies Corp.
United Telecontrol Electronics
Universal Energy Systems, Inc.
Universal Maritime Service
University of California
University of Dayton
University of Illinois
University of Maryland
University of Pittsburgh
University of Southern California
University of Texas System
University of Washington
Upjohn Co., The
Urban General Contractors, Inc.
Urdan Industries USA, Inc.
Utah Construction & Development
Utah Power & Light Co.
Utah State University
VF Corp.
VSE Corp.
Valentec International Corp.
Valmac Industries, Inc.
Vanee Foods Co.
Varian Associates, Inc.
Varo, Inc.
Vector Research, Inc.
Veda, Inc.
Vickers, Inc.
Victory Maritime, Inc.
Viereck Co., Inc.
Vinnell Corp.
Vinnell Corp., Brown & Root JV
Virtexco Corp.
Vitin Garment Mfg. Co.
Vitro Corp.
Vitronics, Inc.
Wang Laboratories, Inc.
Warehouses Service Agency
Waterman Steamship Corp.
Watkins Johnson Co.
Wellco Enterprises, Inc.
Western Petroleum Co.
Western Pioneer, Inc.
Western Union Corp.
Westinghouse Electric Corp.
Westinghouse Furniture Systems
Westmont Industries
Weston, Roy F., Inc.
Whitesell Green, Inc.
Whittaker Corp.
Wilcox Electric, Inc.
Willard Marine, Inc.
Willbros Butler Engineers, Inc.
Williams International Corp.
Wingler Sharp Architects & Planners
Wisconsin Physicians Service Insurance
Wood Hopkins Contracting Co.
Woodward, Clyde Consultants
Work Wear Corp., Inc.
World Airways, Rosenbalm Aviation, Key Airlines, American Airlines,
Evergreen International & Emery Worldwide JV
Wright Associates, Inc.
Wyeth Ayerst Laboratories, Inc.
Wyle Laboratories
Wylie, C.E. Construction Co.
Xerox Corp.
Yordi Construction, Inc.
Young & Rubicam, Inc.
Zachry, H.B. Co.
Zantop International Airlines
Zenith Data Systems, Corp.
Zenith Electronics Corp.
Zertotherm, Inc.
(56 FR 66359, Dec. 23, 1991)
32 CFR 40a.1 PART 40b -- CONDUCT ON THE PENTAGON RESERVATION
Sec.
40b.1 Definitions.
40b.2 Applicability.
40b.3 Compliance with signs and directions.
40b.4 Admission to property.
40b.5 Control of vehicles and pedestrians.
40b.6 Enforcement of parking regulations.
40b.7 Explosives.
40b.8 Disturbances.
40b.9 Prohibition on gambling.
40b.10 Prohibition on narcotics and illegal substances.
40b.11 Prohibition on alcohol.
40b.12 Preservation of property.
40b.13 Restrictions on animals.
40b.14 Soliciting, vending, and debt collection.
40b.15 Restrictions on the taking of photographs.
40b.16 Posting of materials.
40b.17 Penalties and effect on other laws.
Authority: 10 U.S.C. 2674(c).
Source: 56 FR 6565, Feb. 19, 1991, unless otherwise noted.
32 CFR 40b.1 Definitions.
As used in this part:
(a) Pentagon reservation. Area of land and improvements thereon,
located in Arlington, Virginia, on which the Pentagon Office Building,
Federal Building Number 2, the Pentagon heating and sewage treatment
plants, and other related facilities are located, including all
roadways, walkways, and all other areas designated for the parking of
vehicles.
(b) Police officer. Any appointed uniformed or plainclothed member
of the Defense Protective Service.
(c) Traffic control devices. All signs, signals, markings and
devices placed or erected for the purpose of regulating, warning or
guiding vehicular or pedestrian traffic.
(d) Vehicle. All vehicles that are self-propelled or designed for
self-propulsion, all motorized vehicles, and every vehicle drawn by or
designed to be drawn by a motor vehicle and includes every device in,
upon, or by which any person or property is or can be transported or
drawn upon a highway or designated pathway; to include devices moved by
human or animal power, whether required to be licensed in any State or
otherwise.
(e) Public area. Those areas of the Pentagon Reservation where
access by the general public is unrestricted.
32 CFR 40b.2 Applicability.
The provisions of this part apply to all areas in the Pentagon
Reservation and to all persons entering in or on the site. They
supplement those penal provisions of Title 18, United States Code,
relating to crimes and criminal procedures and those provisions of state
law which are federal criminal offenses by virtue of the Assimilative
Crimes Act, 18 U.S.C. 13.
32 CFR 40b.3 Compliance with signs and directions.
Persons in or on the Pentagon Reservation shall at all times comply
with official signs of a prohibitory, regulatory or directory nature,
and with the lawful directions of police officers and other personnel
authorized by the Defense Protective Service.
32 CFR 40b.4 Admission to property.
(a) Access to the Pentagon Reservation facilities shall be restricted
in accordance with DDD Administrative Instruction Number 30, ''Building
Security for the Pentagon'', in order to ensure the orderly and secure
conduct of Department of Defense (DOD) business. Admission to
facilities will be restricted to employees and other persons with proper
authorization who shall, when required and/or requested, display the
authorized identification to police officers or other personnel
authorized by the Defense Protective Service when entering, leaving, or
at any other time while on the property.
(b) All packages, briefcases, and other containers brought into, on,
or being removed from the Pentagon Reservation are subject to inspection
by police officers or other personnel authorized by the Defense
Protective Service. Persons entering on the property who refuse to
permit an inspection will be denied entry to the property. A search of
a person may accompany an investigative stop or an arrest.
(c) Any person or organization desiring to conduct activities in a
public area shall file an application for permit with the DOD building
manager. Such application shall be made on a form provided by the
Department of Defense and shall be submitted in the manner specified by
the Department of Defense.
32 CFR 40b.5 Control of vehicles and pedestrians.
(a) Operators of all vehicles entering, or while on, Pentagon
Reservation shall comply with the signals and directions of police
officers and all official traffic control devices. Except as otherwise
provided in this section, drivers shall operate their vehicles at all
times in compliance with the current Code of Virginia, title 46.2, Motor
Vehicles, subtitle I, II and III, or as may be amended.
(b) All privately owned vehicles on the Pentagon Reservation shall be
properly licensed and shall have a valid inspection in accordance with
State law.
(c) Notwithstanding the direction of a police officer or other
official traffic sign, the following maximum speed limits apply to all
vehicles except emergency vehicles responding to emergency calls:
(1) Streets and roadways -- 25 mph.
(2) Driveways and parking lots -- 10 mph.
(d) Pedestrians are required to comply with traffic control devices
and directions of police officers. Pedestrians and operators of
vehicles are not authorized to wear audio headsets while traversing the
public areas of the Pentagon Reservation.
(e) Operating or being in actual physical control of a motor vehicle
is prohibited while:
(1) Under the influence of alcohol, or a drug, or drugs, or any
combination thereof, to a degree that renders the operator incapable of
safe operation; or
(2) The alcohol concentration in the operator's blood or breath is
0.10 grams or more of alcohol per 100 milliliters of blood or 0.10 grams
or more of alcohol per 210 liters of breath. Provided however, that if
State law that applies to operating a motor vehicle while under the
influence of alcohol establishes more restrictive limits of alcohol
concentration in the operator's blood or breath, those limits supersede
the limits specified in this paragraph.
(f) The provisions of paragraph (e)(1) of this section also apply to
an operator who is or has been legally entitled to use alcohol or
another drug.
(g) Tests. (1) At the request or direction of a police officer who
has probable cause to believe that an operator of a motor vehicle has
violated a provision of paragraph (e)(1) of this section, the operator
shall submit to one or more tests of the blood, breath, saliva, or urine
for the purpose of determining blood alcohol and drug content.
(2) Refusal by an operator to submit to a test is prohibited and may
result in detention and citation by the police officer. Proof of
refusal may be admissible in any related judicial proceeding.
(3) Any test or tests for the presence of alcohol and drugs shall be
determined by and administered at the direction of a police officer.
(4) Any test shall be conducted by using accepted scientific methods
and equipment of proven accuracy and reliability operated by personnel
certified in its use.
(h) Presumptive levels. (1) The results of chemical or other
quantitative tests are intended to supplement the elements of probable
cause used as the basis for the arrest of an operator charged with a
violation of this section. If the alcohol concentration in the
operator's blood or breath at the time of the testing is less than
alcohol concentration specified in paragraph (e)(2) of this section,
this fact does not give rise to any presumption that the operator is or
is not under the influence of alcohol.
(2) The provisions of paragraph (g)(1) of this section are not
intended to limit the introduction of any other competent evidence
bearing upon the question of whether the operator, at the time of the
alleged violation was under the influence of alcohol, or a drug, drugs,
or any combination thereof.
32 CFR 40b.6 Enforcement of parking regulations.
For reasons of security, parking regulations for the Pentagon
Reservation shall be strictly enforced in accordance with DoD
Administrative Instruction Number 88, Pentagon Parking Program.
Unauthorized parking in reserved locations, or parking contrary to the
directions of posted signs or markings, is prohibited. Vehicles parked
in violation, where warning signs are posted, shall be subject to
removal at the owners' risk and expense. The Department of Defense
assumes no responsibility for the payment of any fees or costs related
to such removal which may be charged to the owner of the vehicle by the
authorized towing organization. This paragraph may be supplemented from
time to time with the approval of the Director, Washington Headquarters
Services, or designee, by the issuance and posting of such traffic
directives as may be required, and when so issued and posted such
directive shall have the same force and effect as if made a part hereof.
Proof that a vehicle was parked in violation of these regulations or
directives may be taken as prima facie evidence that the registered
owner was responsible for the violation.
32 CFR 40b.7 Explosives.
No person entering or while on the Pentagon Reservation shall carry
or possess explosives, or items to be used to fabricate an explosive or
incendiary device, either openly or concealed, except for official
purposes. (Weapons, see 18 U.S.C. 930)
32 CFR 40b.8 Disturbances.
Any conduct which impedes or threatens the security of persons and
property, or any building thereon, or which disrupts the performance of
official duties by DOD employees, or which significantly interferes with
ingress to, or egress from, buildings and parking areas is prohibited.
Prohibited activities include, but are not limited to, disorderly
conduct, unwarranted loitering, behavior which creates loud or unusual
noises or nuisances, and behavior which significantly obstructs the use
of areas such as entrances, foyers, lobbies, corridors, concourses,
offices, elevators, stairways, roadways, driveways, walkways or parking
lots.
32 CFR 40b.9 Prohibition on gambling.
Participating in games for money or other personal property or the
operating of gambling devices, the conduct of a lottery or pool, or the
selling or purchasing of numbers tickets, in or on the Pentagon
Reservation is prohibited. This prohibition shall not apply to the
vending or exchange of chances by licensed blind operators of vending
facilities for any lottery set forth in a State law and authorized by
section 2(a)(5) of the Randolph-Sheppard Act (20 U.S.C. 107, et seq).
32 CFR 40b.10 Prohibition on narcotics and illegal substances.
Entering or while on the Pentagon Reservation under the influence of
or using or possessing any narcotic drugs, hallucinogens, marijuana,
barbiturate, or amphetamines is prohibited. The prohibition shall not
apply in cases where the drug being used is prescribed for a patient by
a licensed physician or where stored by a registered pharmacist.
32 CFR 40b.11 Prohibition on Alcohol.
(a) Entering or while on the Pentagon Reservation under the influence
of alcoholic beverages is prohibited. The use of alcoholic beverages on
the Pentagon Reservation is also prohibited except upon occasions for
which the Director for Administration and Management or designee and
Heads of Service have granted approval for such use in writing. A copy
of such exemptions shall be provided to the Defense Protective Service.
32 CFR 40b.12 Preservation of property.
The willful destruction of, damage to, or theft of government or
personal property thereon, is prohibited. The creation of any hazard to
persons or things, the throwing of articles of any kind from or at
buildings or persons, an improper disposal of rubbish, and open fires
are prohibited.
32 CFR 40b.13 Restrictions on animals.
Animals, except guide dogs for the handicapped, shall not be brought
upon the Pentagon Reservation for other than official purposes.
32 CFR 40b.14 Soliciting, vending, and debt collection.
Commercial or political soliciting, vending of all kinds, displaying
or distributing commercial advertising, collecting private debts or
soliciting alms upon the Pentagon Reservation is prohibited. This does
not apply to:
(a) National or local drives for funds for welfare, health, or other
purposes as authorized by 5 CFR parts 110 and 950, Solicitation of
Federal Civilian and Uniformed Services Personnel for Contributions to
Private Voluntary Organizations, issued by the U.S. Office of Personnel
Management under Executive Order 12353 of March 23, 1982, as amended,
and sponsored or approved by the Department of Defense.
(b) Personal notices posted on bulletin boards advertising to sell or
rent property of Pentagon employees or their immediate family.
(c) Solicitation of labor organization membership or dues authorized
by the Department of Defense under the Civil Service Reform Act of 1978.
(d) Lessee, or their agents and employees, with respect to space
leased for commercial use.
(e) Solicitation by voluntary tax exempt cultural, educational or
recreational organizations approved by the DoD Buildings Manager, the
DoD Fund Raising Coordinator, and the Director of the Office of
Personnel Management.
32 CFR 40b.15 Restriction on the taking of photographs.
Cameras and any other visual recording devices are permitted to be
used in public areas of the Pentagon Reservation and in building
corridors, lobbies, concourses and the Center Court unless otherwise
prohibited. The use of cameras or other visual recording devices in
internal offices must be approved by the respective DoD component
occupying the space. Photographs for advertising and commercial
purposes may only be taken with the permission of the Office of the
Assistant Secretary of Defense for Public Affairs.
32 CFR 40b.16 Posting of materials.
Posting or affixing materials, such as pamphlets, handbills, or
fliers on the Pentagon Reservation is prohibited except as provided by
40b.14 or when conducted as part of activities approved by the DoD
Buildings Manager.
32 CFR 40b.17 Penalties and effect on other laws.
Whoever shall be found guilty of violating any rules or regulations
while on the Pentagon Reservation is subject to a fine of not more than
$1,000.00 or imprisonment of not more than 6 months, or both. (See 10
U.S.C. 2674) Nothing in this part shall be construed to abrogate any
other Federal or State laws or regulations applicable to any area in
which the property is situated.
32 CFR 40b.17 PART 41 -- ENLISTED ADMINISTRATIVE SEPARATIONS
Sec.
41.1 Purpose.
41.2 Applicability and scope.
41.3 Policy.
41.4 Responsibilities.
41.5 Effective date and implementation.
41.6 Definitions.
Appendix A to Part 41 -- Standards and Procedures
Authority: 10 U.S.C. 1162, 1163, 1169, 1170, 1172, and 1173.
Source: 47 FR 10174, Mar. 9, 1982, unless otherwise noted.
32 CFR 41.1 Purpose.
This part establishes policies, standards, and procedures governing
the administrative separation of enlisted members from the Military
Services.
32 CFR 41.2 Applicability and scope.
The provisions of this part apply to Office of the Secretary of
Defense and the Military Departments (including their reserve
components). The term ''Military Services,'' as used herein, refers to
the Army, Navy, Air Force and Marine Corps.
32 CFR 41.3 Policy.
(a) It is the policy of the Department of Defense to promote the
readiness of the Military Services by maintaining high standards of
conduct and performance. Separation policy promotes the readiness of
the Military Services by providing an orderly means to:
(1) Ensure that the Military Services are served by individuals
capable of meeting required standards of duty performance and
discipline;
(2) Maintain standards of performance and conduct through
characterization of service in a system that emphasizes the importance
of honorable service;
(3) Achieve authorized force levels and grade distributions; and
(4) Provide for the orderly administrative separation of enlisted
personnel in a variety of circumstances.
(b) DoD separation policy is designed to strengthen the concept that
military service is a calling different from any civilian occupation.
(1) The acquisition of military status, whether through enlistment or
induction, involves a commitment to the United States, the service, and
one's fellow citizens and servicemembers to complete successfully a
period of obligated service. Early separation for failure to meet
required standards of performance or discipline represents a failure to
fulfill that commitment.
(2) Millions of Americans from diverse backgrounds and with a wide
variety of aptitudes and attitudes upon entering military service have
served successfully in the armed forces. It is the policy of the
Department of Defense to provide servicemembers with the training,
motivation, and professional leadership that inspires the dedicated
enlisted member to emulate his or her predecessors and peers in meeting
required standards of performance and discipline.
(3) The Military Services make a substantial investment in training,
time, equipment, and related expenses when persons are enlisted or
inducted into military service. Separation prior to completion of an
obligated period of service is wasteful because it results in loss of
this investment and generates a requirement for increased accession.
Consequently, attrition is an issue of significant concern at all levels
of responsibility within the armed forces. Reasonable efforts should be
made to identify enlisted members who exhibit a likelihood for early
separation, and to improve their chances for retention through
counseling, retraining, and rehabilitation prior to initiation of
separation proceedings. Enlisted members who do not demonstrate
potential for further military service should be separated in order to
avoid the high costs in terms of pay, administrative efforts,
degradation of morale, and substandard mission performance that are
associated with retention of enlisted members who do not conform to
required standards of discipline and performance despite efforts at
counseling, retraining, or rehabilitation.
(c) Standards and procedures for implementation of these policies are
set forth in Appendix A to this part.
32 CFR 41.4 Responsibilities.
(a) The Secretaries of the Military Departments shall prescribe
implementing documents to ensure that the policies, standards, and
procedures set forth in this part are administered in a manner that
provides consistency in separation policy to the extent practicable in a
system that is based on command discretion. The implementing documents
also shall address the following matters:
(1) Processing goals. The Secretary concerned shall establish
processing time goals for the types of administrative separations
authorized by this part. Such goals shall be designed to further the
efficient administration of the armed forces and shall be measured from
the date of notification to the date of separation. Normally such goals
should not exceed 15 working days for the Notification Procedure (Part
3, section B., Appendix A) and 50 working days for the Administrative
Board Procedure (Part 3, section C., Appendix A) Goals for shorter
processing times are encouraged, particularly for cases in which
expeditious action is likely. Variations may be established for complex
cases or cases in which the Separation Authority is not located on the
same facility as the respondent. The goals, and a program for
monitoring effectiveness, shall be set forth in the implementing
document of the Military Department. Failure to process an
administrative separation within the prescribed goal for processing
times shall not create a bar to separation or characterization.
(2) Periodic explanations. The Secretary concerned shall prescribe
appropriate internal procedures for periodic explanation to enlisted
members of the types of separations, the basis for their issuance, the
possible effects of various actions upon reenlistment, civilian
employment, veterans' benefits, and related matters, and the effects of
10 U.S.C. 977 and Pub. L. 97-66, concerning denial of certain benefits
to members who fail to complete at least 2 years of an original
enlistment. Such explanation may be provided in the form of a written
fact sheet or similar document. The periodic explanation shall take
place at least each time the provisions of the Uniform Code of Military
Justice (UCMJ) are explained pursuant to Article 137 of the UCMJ. The
requirement that the effects of the various types of separations be
explained to enlisted members is a command responsibility, not a
procedural entitlement. Failure on the part of the member to receive or
to understand such explanation does not create a bar to separation or
characterization.
(3) Provision of information during separation processing. The
Secretary concerned shall ensure that information concerning the purpose
and authority of the Discharge Review Board and the Board for Correction
of Military/Naval Records, established under 10 U.S.C. 1552 and 1553 and
32 CFR Part 70 (DoD Directive 1332.28) is provided during the separation
processing of all members, except when the separation is for the purpose
of an immediate reenlistment. Specific counseling is required under 38
U.S.C. 3103(a) which states that a discharge under other than honorable
conditions, resulting from a period of continuous, unauthorized absence
of 180 days or more, is a conditional bar to benefits administered by
the Veterans Administration, notwithstanding any action by a Discharge
Review Board. The information required by this paragraph should be
provided in the form of a written fact sheet or similar document.
Failure on the part of the member to receive or to understand such
explanation does not create a bar to separation or characterization.
(b) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) may modify or supplement the enclosures to this
Directive, and may delegate the authority to establish reporting
requirements for the reasons for separation (Part 1, Appendix A) to a
Deputy Assistant Secretary.
32 CFR 41.5 Effective date and implementation.
(a) This part applies only to administrative separation proceedings
initiated on or after October 1, 1982.
(b) Part 41, effective December 29, 1976 shall continue to be used
for administrative separation proceedings initiated on or before
September 30, 1982.
32 CFR 41.6 Definitions.
(a) Member. An enlisted member of a Military Service.
(b) Discharge. Complete severance from all military status gained by
the enlistment or induction concerned.
(c) Release from active duty. Termination of active duty status and
transfer or reversion to a reserve component not on active duty,
including transfer to the Individual Ready Reserve (IRR).
(d) Separation. A general term which includes discharge, release
from active duty, release from custody and control of the armed forces,
transfer to the IRR, and similar changes in active or reserve status.
(e) Military record. An individual's overall performance while a
member of a Military Service, including personal conduct and performance
of duty.
(f) Separation Authority. An official authorized by the Secretary
concerned to take final action with respect to a specified type of
separation.
(g) Convening Authority. (1) The Separation Authority or (2) a
commanding officer who has been authorized by the Secretary concerned to
process the case except for final action and who otherwise has the
qualifications to act as a Separation Authority.
(h) Respondent. A member of a Military Service who has been notified
that action has been initiated to separate the member.
(i) Entry level status. The first 180 days of continuous active
military service. For members of a reserve component who have not
completed 180 days of continuous active military service and who are not
on active duty, entry level status begins upon enlistment in a reserve
component (including a period of assignment to a delayed entry program)
and terminates 180 days after beginning an initial period of entry level
active duty training. For purposes of characterization of service or
description of separation, the member's status is determined by the date
of notification as to the initiation of separation proceedings.
32 CFR 41.6 Pt. 41, App. A
32 CFR 41.6 Appendix A to Part 41 -- Standards and Procedures
A. Expiration of Service Obligation
1. Basis
2. Characterization or description
B. Selected Changes in Service Obligations
1. Basis
2. Characterization or description
C. Convenience of the Government
1. Basis
2. Characterization or description
3. Procedures
4. Reasons
a. Early release to further education
b. Early release to accept public office
c. Dependency or hardship
d. Pregnancy or childbirth
e. Parenthood
f. Conscientious objection
g. Surviving family member
h. Other designated physical or mental conditions
i. Additional grounds
D. Disability
1. Basis
2. Characterization or description
3. Procedures
E. Defective Enlistments and Inductions
1. Minority
a. Basis
(1) Under age 17 (2) Age 17
b. Description of separation
c. Procedure
2. Erroneous
a. Basis
b. Characterization or description
c. Procedure
3. Defective enlistment agreements
a. Basis
b. Characterization or description
c. Procedures
4. Fraudulent entry into military service
a. Basis
b. Characterization or description
c. Procedures
F. Entry Level Performance and Conduct
1. Basis
2. Counseling and rehabilitation
3. Description of separation
4. Procedures
G. Unsatisfactory Performance
1. Basis
2. Counseling and rehabilitation
3. Characterization or description
4. Procedures
H. Homosexuality
1. Basis
2. Characterization or description
3. Procedures
I. Drug Abuse Rehabilitation Failure
1. Basis
2. Characterization or description
3. Procedures
J. Alcohol Abuse Rehabilitation Failure
1. Basis
2. Characterization or description
3. Procedures
K. Misconduct
1. Basis
a. Reasons
b. Reporting
c. Related separations
2. Counseling and rehabilitation
3. Characterization or description
4. Procedures
L. Separation in Lieu of Trial by Court-Martial
1. Basis
2. Characterization or description
3. Procedures
M. Security
1. Basis
2. Characterization or description
N. Unsatisfactory Participation in the Ready Reserves
1. Basis
2. Characterization or description
3. Procedures
O. Secretarial Plenary Authority
1. Basis
2. Characterization or description
3. Procedures
P. Reasons Established by the Military Department
1. Basis
2. Counseling and rehabilitation
3. Characterization or description
4. Procedures
A. Separation
1. Scope
2. Guidance
3. Limitations on separation actions
B. Suspension of Separation
1. Suspension
2. Action during the period of suspension
C. Characterization of Service or Description of Separation
1. Types of characterization or description
2. Characterization of service
a. General considerations
b. Types of characterization
(1) Honorable (2) General (under honorable conditions) (3) Under
Other Than Honorable Conditions
c. Limitations on characterization
3. Uncharacterized separations
a. Entry Level Separation
b. Void enlistments or inductions
c. Dropping from the rolls
A. Scope
B. Notification Procedure
1. Notice
2. Additional notice requirements
3. Response
4. Separation Authority
C. Administrative Board Procedure
1. Notice
2. Additional notice requirements
3. Response
4. Waiver
5. Hearing procedure
a. Composition
b. Presiding officer
c. Witnesses
d. Record of proceedings
e. Presentation of evidence
f. Rights of the respondents
g. Findings and recommendations
(1) Retention or separation (2) Suspension or separation (3)
Characterization of service or description of separation (4)
Transfer to the Ready Reserves
6. Separation Authority
D. Additional Provisions Concerning Members Confined by Civil
Authorities
E. Additional Requirements for Certain Members of Reserve Components
1. Members of reserve components not on active duty
2. Tranfer to the IRR
F. Additional Requirements for Members beyond Military Control by
Reason of Unauthorized Absence
1. Determination of applicability
2. Notice
3. Members of reserve components
A. Expiration of Service Obligation. 1. Basis. A member may be
separated upon expiration of enlistment or fulfillment of service
obligation. This includes separation authorized by the Secretary
concerned when the member is within 30 days of the date of expiration of
term of service under the following circumstances:
a. The member is serving outside the continental United States
(CONUS); or
b. The member is a resident of a state, territory, or possession
outside CONUS and is serving outside the member's state, territory, or
possession of residence.
2. Characterization or description. Honorable, unless:
a. An Entry Level Separation is required under subsection C.3. of
Part 2;
b. Characterization of service as General (under honorable
conditions) is warranted under section C. of Part 2 on the basis of
numerical scores accumulated in a formal, Service-wide rating system
that evaluates conduct and performance on a regular basis; or
c. Another characterization is warranted upon discharge from the IRR
under section E. of Part 3.
B. Selected Changes in Service Obligations. 1. Basis. A member may
be separated for the following reasons:
a. General demobilization or reduction in authorized strength.
b. Early separation of personnel under a program established by the
Secretary concerned. A copy of the document authorizing such program
shall be forwarded to the Assistant Secretary of Defense (Manpower,
Reserve Affairs, and Logistics (ASD(MRA&L)) on or before the date of
implementation.
c. Acceptance of an active duty commission or appointment, or
acceptance into a program leading to such a commission or appointment in
any branch of the Military Services.
d. Immediate enlistment or reenlistment.
e. Interservice transfer of inactive reserves in accordance with DoD
Directive 1205.5.
2. Characterization or description. Honorable, unless:
a. An Entry Level Separation is required under section C. of Part 2;
b. Characterization of service as General (under honorable
conditions) is warranted under section C. of Part 2 on the basis of
numerical scores accumulated in a formal, service-wide rating system
that evaluates conduct and performance on a regular basis; or
c. Another characterization is warranted upon discharge from the IRR
under section E. of Part 3.
C. Convenience of the Government. 1. Basis. A member may be
separated for convenience of the government for the reasons set forth in
subsection C.4., below.
2. Characterization or description. Honorable, unless:
a. An Entry Level Separation is required under section C. of Part 2;
or
b. Characterization of service as General (under honorable
conditions) is warranted under section C. of Part 2.
3. Procedures. Procedural requirements may be established by the
Secretary concerned, subject to procedures established in subsection
C.4., below. Prior to characterization of service as General (under
honorable conditions), the member shall be notified of the specific
factors in the service record that warrant such a characterization, and
the Notification Procedure (section B. of Part 3) shall be used. Such
notice and procedure is not required, however, when characterization of
service as General (under honorable conditions) is based upon numerical
scores accumulated in a formal, service-wide rating system that
evaluates conduct and performance on a regular basis.
4. Reasons. a. Early release to further education. A member may be
separated under DoD Directive 1332.15 to attend a college, university,
vocational school, or technical school.
b. Early release to accept public office. A member may be separated
to accept public office only under circumstances authorized by the
Military Department concerned and consistent with DoD Directive 1344.10.
c. Dependency or hardship. (1) Upon request of the member and
concurrence of the government, separation may be directed when genuine
dependency or undue hardship exists under the following circumstances:
(a) The hardship or dependency is not temporary;
(b) Conditions have arisen or have been aggravated to an excessive
degree since entry into the Service, and the member has made every
reasonable effort to remedy the situation;
(c) The administrative separation will eliminate or materially
alleviate the condition; and
(d) There are no other means of alleviation reasonably available.
(2) Undue hardship does not necessarily exist solely because of
altered present or expected income, family separation, or other
inconveniences normally incident to Military Service.
d. Pregnancy or childbirth. A female member may be separated on the
basis of pregnancy or childbirth upon her request, unless retention is
determined to be in the best interests of the service under section A.
of Part 2 and guidance established by the Military Department concerned.
e. Parenthood. A member may be separated by reason of parenthood if
as a result thereof it is determined under the guidance set forth in
section A. of Part 2 that the member is unable satisfactorily to
perform his or her duties or is unavailable for worldwide assignment or
deployment. Prior to involuntary separation under this provision, the
Notification Procedure (section B. of Part 3) shall be used. Separation
processing may not be initiated until the member has been counseled
formally concerning deficiencies and has been afforded an opportunity to
overcome those deficiencies as reflected in appropriate counseling or
personnel records.
f. Conscientious objection. A member may be separated if authorized
under 32 CFR Part 75 (DoD Directive 1300.6).
g. Surviving family member. A member may be separated if authorized
under 32 CFR Part 52 (DoD Directive 1315.14).
h. Other designated physical or mental conditions. (1) The Secretary
concerned may authorize separation on the basis of other designated
physical or mental conditions, not amounting to Disability (section D.,
below), that potentially interfere with assignment to or performance of
duty under the guidance set forth in section A. of part 2. Such
conditions may include but are not limited to chronic seasickness or
airsickness, enuresis, and personality disorder. 1
(2) Separation processing may not be initiated until the member has
been counseled formally concerning deficiencies and has been afforded an
opportunity to overcome those deficiencies as reflected in appropriate
counseling or personnel records.
(3) Separation on the basis of personality disorder is authorized
only if a diagnosis by a psychiatrist or psychologist, completed in
accordance with procedures established by the Military Department
concerned, concludes, that the disorder is so severe that the member's
ability to function effectively in the military environment is
significantly impaired.
(4) Separation for personality disorder is not appropriate when
separation is warranted under sections A. through N. or section P. of
this part. For example, if separation is warranted on the basis of
unsatisfactory performance (section G.) or misconduct (section K.), the
member should not be separated under this section regardless of the
existence of a personality disorder.
(5) Nothing in this provision precludes separation of a member who
has such a condition under any other basis set forth under this section
(Convenience of the Government) or for any other reason authorized by
this part.
(6) Prior to involuntary separation under this provision, the
Notification Procedure (section B. of Part 3) shall be used.
(7) The reasons designated by the Secretary concerned shall be
separately reported.
i. Additional grounds. The Secretary concerned may provide
additional grounds for separation for the convenience of the government.
A copy of the document authorizing such grounds shall be forwarded to
the ASD(MRA&L) on or before the date of implementation.
D. Disability. 1. Basis. A member may be separated for disability
under the provisions of 10 U.S.C. chapter 61.
2. Characterization or description. Honorable, unless:
a. An Entry Level Separation is required under section C. of Part 2;
or
b. Characterization of service as General (under honorable
conditions) is warranted under section C. of Part 2.
3. Procedures. Procedural requirements for separation may be
established by the Military Departments consistent with 10 U.S.C.
chapter 61. If separation is recommended, the following requirements
apply prior to characterization of service as General (under honorable
conditions): the member shall be notified of the specific factors in
the service record that warrant such a characterization, and the
Notification Procedure (section B. of Part 3) shall be used. Such
notice and procedure is not required, however, when characterization of
service as General (under honorable conditions) is based upon numerical
scores accumulated in a formal, service-wide rating system that
evaluates conduct and performance on a regular basis.
E. Defective Enlistments and Inductions. 1. Minority. a. Basis. (1)
Under age 17. If a member is under the age of 17, the enlistment of the
member is void, and the member shall be separated.
(2) Age 17. A member shall be separated under 10 U.S.C. 1170 in the
following circumstances except when the member is retained for the
purpose of trial by court-martial:
(a) There is evidence satisfactory to the Secretary concerned that
the member is under 18 years of age;
(b) The member enlisted without the written consent of the member's
parent or guardian; and
(c) An application for the member's separation is submitted to the
Secretary concerned by the parent or guardian within 90 days of the
member's enlistment.
b. Description of separation. A member separated under subparagraph
E.1.a.(1), above, shall receive an order of release from the custody and
control of the armed forces (by reason of void enlistment or induction).
The separation of a member under subparagraph E.1.a.(2), above, shall
be described as an Entry Level Separation.
c. Procedure. The Notification Procedure (section B. of Part 3) shall
be used.
2. Erroneous. a. Basis. A member may be separated on the basis of an
erroneous enlistment, induction, or extension of enlistment under the
guidance set forth in section A. of Part 2. An enlistment, induction,
or extension of enlistment is erroneous in the following circumstances,
if:
(1) It would not have occurred had the relevant facts been known by
the government or had appropriate directives been followed;
(2) It was not the result of fraudulent conduct on the part of the
member; and
(3) The defect is unchanged in material respects.
b. Characterization or description. Honorable, unless an Entry Level
Separation or an order of release from the custody and control of the
Military Services (by reason of void enlistment or induction) is
required under section C. of Part 2.
c. Procedure. (1) If the command recommends that the individual be
retained in military service, the initiation of separation processing is
not required in the following circumstances:
(a) The defect is no longer present; or
(b) The defect is waivable and a waiver is obtained from appropriate
authority.
(2) If separation processing is initiated, the Notification Procedure
(section B. of Part 3) shall be used.
3. Defective enlistment agreements. a. Basis. A defective enlistment
agreement exists in the following circumstances:
(1) As a result of a material misrepresentation by recruiting
personnel, upon which the member reasonably relied, the member was
induced to enlist with a commitment for which the member was not
qualified;
(2) The member received a written enlistment commitment from
recruiting personnel for which the member was qualified, but which
cannot be fulfilled by the Military Service; or
(3) The enlistment was involuntary. See 10 U.S.C. 802.
b. Characterization or description. Honorable, unless an Entry Level
Separation or an order of release from the custody and control of the
Military Services (by reason of void enlistment) is required under
section C. of Part 2.
c. Procedures. This provision does not bar appropriate disciplinary
action or other administrative separation proceedings regardless of when
the defect is raised. Separation is appropriate under this provision
only in the following circumstances:
(1) The member did not knowingly participate in creation of the
defective enlistment;
(2) The member brings the defect to the attention of appropriate
authorities within 30 days after the defect is discovered or reasonably
should have been discovered by the member;
(3) The member requests separation instead of other authorized
corrective action; and
(4) The request otherwise meets such criteria as may be established
by the Secretary concerned.
4. Fraudulent entry into military service. a. Basis. A member may be
separated under guidance set forth in section A. of Part 2 on the basis
of procurement of a fraudulent enlistment, induction, or period of
military service through any deliberate material misrepresentation,
omission, or concealment which, if known at the time of enlistment,
induction, or entry onto a period of military service, might have
resulted in rejection.
b. Characterization or description. Characterization of service or
description of separation shall be in accordance with section C. of
Part 2. If the fraud involves concealment of a prior separation in
which service was not characterized as Honorable, characterization
normally shall be Under Other Than Honorable Conditions.
c. Procedures. The Notification Procedure (section B. of Part 3)
shall be used except as follows:
(1) Characterization of service Under Other Than Honorable Conditions
may not be issued unless the Administrative Board Procedure (section C.
of Part 3) is used.
(2) When the sole reason for separation is fraudulent entry,
suspension of separation (section B. of Part 2) is not authorized. When
there are approved reasons for separation in addition to fraudulent
entry, suspension of separation is authorized only in the following
circumstances:
(a) A waiver of the fraudulent entry is approved; and
(b) The suspension pertains to reasons for separation other than the
fraudulent entry.
(3) If the command recommends that the member be retained in military
service, the initiation of separation processing is unnecessary in the
following circumstances:
(a) The defect is no longer present; or
(b) The defect is waivable and a waiver is obtained from appropriate
authority.
(4) If the material misrepresentation includes preservice
homosexuality (subsection H.1.), the standards of paragraph H.1.c. and
procedures of subsection H.3. shall be applied in processing a
separation under this section. In such a case the characterization or
description of the separation shall be determined under paragraph
E.4.b., above.
F. Entry Level Performance and Conduct. 1. Basis. a. A member may be
separated while in entry level status ( 41.6(i)) when it is determined
under the guidance set forth in section A. of Part 2 that the member is
unqualified for further military service by reason of unsatisfactory
performance or conduct (or both), as evidenced by inability, lack of
reasonable effort, failure to adapt to the military environment or minor
disciplinary infractions.
b. When separation of a member in entry level status is warranted by
unsatisfactory performance or minor disciplinary infractions (or both),
the member normally should be separated under this section. Nothing in
this provision precludes separation under another provision of this
Directive when such separation is authorized and warranted by the
circumstances of the case.
2. Counseling and rehabilitation. Separation processing may not be
initiated until the member has been counseled formally concerning
deficiencies and has been afforded an opportunity to overcome those
deficiencies as reflected in appropriate counseling or personnel
records. Counseling and rehabilitation requirements are important with
respect to this reason for separation. Because military service is a
calling different from any civilian occupation, a member should not be
separated when this is the sole reason unless there have been efforts at
rehabilitation under standards prescribed by the Secretary concerned.
3. Description of separation. Entry Level Separation.
4. Procedures. The Notification Procedure (section B. of Part 3)
shall be used.
G. Unsatisfactory Performance. 1. Basis. A member may be separated
when it is determined under the guidance set forth in section A. of
Part 2 that the member is unqualified for further military service by
reason of unsatisfactory performance. This reason shall not be used if
the member is in entry level status ( 41.6(i)).
2. Counseling and Rehabilitation. Separation processing may not be
initiated until the member has been counseled formally concerning
deficiencies and has been afforded an opportunity to overcome those
deficiencies as reflected in appropriate counseling or personnel
records. Counseling and rehabilitation requirements are of particular
importance with respect to this reason for separation. Because military
service is a calling different from any civilian occupation, a member
should not be separated when unsatisfactory performance is the sole
reason unless there have been efforts at rehabilitation under standards
prescribed by the Secretary concerned.
3. Characterization or description. The service shall be
characterized as Honorable or General (under honorable conditions) in
accordance with section C. of Part 2.
4. Procedures. The Notification Procedure (section B. of Part 3)
shall be used.
H. Homosexuality. 1. Basis. a. Homosexuality is incompatible with
military service. The presence in the military environment of persons
who engage in homosexual conduct or who, by their statements,
demonstrate a propensity to engage in homosexual conduct, seriously
impairs the accomplishment of the military mission. The presence of
such members adversely affects the ability of the Military Services to
maintain discipline, good order, and morale; to foster mutual trust and
confidence among servicemembers; to ensure the integrity of the system
of rank and command; to facilitate assignment and worldwide deployment
of servicemembers who frequently must live and work under close
conditions affording minimal privacy; to recruit and retain members of
the Military Services; to maintain the public acceptability of military
service; and to prevent breaches of security.
b. As used in this section:
(1) Homosexual means a person, regardless of sex, who engages in,
desires to engage in, or intends to engage in homosexual acts;
(2) Bisexual means a person who engages in, desires to engage in, or
intends to engage in homosexual and heterosexual acts; and
(3) A homosexual act means bodily contact, actively undertaken or
passively permitted, between members of the same sex for the purpose of
satisfying sexual desires.
c. The basis for separation may include preservice, prior service, or
current service conduct or statements. A member shall be separated
under this section if one or more of the following approved findings is
made:
(1) The member has engaged in, attempted to engage in, or solicited
another to engage in a homosexual act or acts unless there are approved
further findings that:
(a) Such conduct is a departure from the member's usual and customary
behavior;
(b) Such conduct under all the circumstances is unlikely to recur;
(c) Such conduct was not accomplished by use of force, coercion, or
intimidation by the member during a period of military service;
(d) Under the particular circumstances of the case, the member's
continued presence in the Service is consistent with the interest of the
Service in proper discipline, good order, and morale; and
(e) The member does not desire to engage in or intend to engage in
homosexual acts.
(2) The member has stated that he or she is a homosexual or bisexual
unless there is a further finding that the member is not a homosexual or
bisexual.
(3) The member has married or attempted to marry a person known to be
of the same biological sex (as evidenced by the external anatomy of the
persons involved) unless there are further findings that the member is
not a homosexual or bisexual and that the purpose of the marriage or
attempt was the avoidance or termination of military service.
2. Characterization or description. Characterization of service or
description of separation shall be in accordance with the guidance in
section C. of Part 2. When the sole basis for separation is
homosexuality, a characterization Under Other Than Honorable Conditions
may be issued only if such a characterization is warranted under section
C. of Part 2 and there is a finding that during the current term of
service the member attempted, solicited, or committed a homosexual act
in the following circumstances:
a. By using force, coercion, or intimidation;
b. With a person under 16 years of age;
c. With a subordinate in circumstances that violate customary
military superior-subordinate relationships;
d. Openly in public view;
e. For compensation;
f. Aboard a military vessel or aircraft; or
g. In another location subject to military control under aggravating
circumstances noted in the finding that have an adverse impact on
discipline, good order, or morale comparable to the impact of such
activity aboard a vessel or aircraft.
3. Procedures. The Administrative Board Procedure (section C. of Part
3) shall be used, subject to the following guidance:
a. Separation processing shall be initiated if there is probable
cause to believe separation is warranted under paragraph H.1.c., above.
b. The Administrative Board shall follow the procedures set forth in
subsection C.5. of Part 3, except with respect to the following matters:
(1) If the Board finds that one or more of the circumstances
authorizing separation under paragraph H.1.c., above, is supported by
the evidence, the Board shall recommend separation unless the Board
finds that retention is warranted under the limited circumstances
described in that paragraph.
(2) If the Board does not find that there is sufficient evidence that
one or more of the circumstances authorizing separation under paragraph
H.1.c. has occurred, the Board shall recommend retention unless the case
involves another basis for separation of which the member has been duly
notified.
c. In any case in which characterization of service Under Other Than
Honorable Conditions is not authorized, the Separation Authority may be
exercised by an officer designated under paragraph B.4.a. of Part 3.
d. The Separation Authority shall dispose of the case according to
the following provisions:
(1) If the Board recommends retention, the Separation Authority shall
take one of the following actions:
(a) Approve the finding and direct retention; or
(b) Forward the case to the Secretary concerned with a recommendation
that the Secretary separate the member under the Secretary's Authority
(section O. of this Part 1).
(2) If the Board recommends separation, the Separation Authority
shall take one of the following actions:
(a) Approve the finding and direct separation; or
(b) Disapprove the finding on the basis of the following
considerations:
1 There is insufficient evidence to support the finding; or
2 Retention is warranted under the limited circumstances described in
paragraph H.1.c., above.
(3) If there has been a waiver of Board proceedings, the Separation
Authority shall dispose of the case in accordance with the following
provisions:
(a) If the Separation Authority determines that there is not
sufficient evidence to support separation under paragraph H.1.c., the
Separation Authority shall direct retention unless there is another
basis for separation of which the member has been duly notified.
(b) If the Separation Authority determines that one or more of the
circumstances authorizing separation under paragraph H.1.c. has
occurred, the member shall be separated unless retention is warranted
under the limited circumstances described in that paragraph.
e. The burden of proving that retention is warranted under the
limited circumstances described in paragraph H.1.c. rests with the
member, except in cases where the member's conduct was solely the result
of a desire to avoid or terminate military service.
f. Findings regarding the existence of the limited circumstances
warranting a member's retention under paragraph H.1.c. are required only
if:
(1) The member clearly and specifically raises such limited
circumstances; or
(2) The Board or Separation Authority relies upon such circumstances
to justify the member's retention.
g. Nothing in these procedures:
(1) Limits the authority of the Secretary concerned to take
appropriate action in a case to ensure that there has been compliance
with the provisions of this part;
(2) Precludes retention of a member for a limited period of time in
the interests of national security as authorized by the Secretary
concerned;
(3) Authorizes a member to seek Secretarial review unless authorized
in procedures promulgated by the Secretary concerned;
(4) Precludes separation in appropriate circumstances for another
reason set forth in this part; or
(5) Precludes trial by court-martial in appropriate cases.
I. Drug Abuse Rehabilitation Failure. 1. Basis. a. A member who has
been referred to a program of rehabilitation for personal drug and
alcohol abuse may be separated for failure through inability or refusal
to participate in, cooperate in, or successfully complete such a program
in the following circumstances:
(1) There is a lack of potential for continued military service; or
(2) Long-term rehabilitation is determined necessary and the member
is transferred to a civilian medical facility for rehabilitation.
b. Nothing in this provision precludes separation of a member who has
been referred to such a program under any other provision of this part
in appropriate cases.
c. Drug abuse rehabilitation failures shall be reported separately
from alcohol abuse rehabilitation failures. If separation is based on
both, the primary basis shall be used for reporting requirements.
2. Characterization or description. When a member is separated under
this provision, characterization of service as Honorable or General
(under honorable conditions) is authorized except when an Entry Level
Separation is required under section C. of Part 2. The relationship
between voluntary submission for treatment and the evidence that may be
considered on the issue of characterization is set forth in subparagraph
C.2.c.(6) of Part 2. The relationship between mandatory urinalysis and
the evidence that may be considered on the issue of characterization is
set forth in subparagraph C.2.c.(7) of Part 2.
3. Procedures. The Notification Procedure (section B. of Part 3)
shall be used.
J. Alcohol Abuse Rehabilitation Failure. 1. Basis. a. A member who
has been referred to a program of rehabilitation for drug and alcohol
abuse may be separated for failure through inability or refusal to
participate in, cooperate in, or successfully complete such a program in
the following circumstances:
(1) There is a lack of potential for continued military service; or
(2) Long-term rehabilitation is determined necessary and the member
is transferred to a civilian medical facility for rehabilitation.
b. Nothing in this provision precludes separation of a member who has
been referred to such a program under any other provision of this part
in appropriate cases.
c. Alcohol abuse rehabilitation failures shall be reported separately
from drug abuse rehabilitation failures. If separation is based on
both, the primary basis shall be used for reporting purposes.
2. Characterization or description. When a member is separated under
this provision, characterization of service as Honorable or General
(under honorable conditions) is authorized except when an Entry Level
Separation is required under section C. of Part 2.
3. Procedures. The Notification Procedure (section B. of Part 3)
shall be used.
K. Misconduct. 1. Basis. a. Reasons. A member may be separated for
misconduct when it is determined under the guidance set forth in section
A. of Part 2 that the member is unqualified for further military
service by reason of one or more of the following circumstances:
(1) Minor disciplinary infractions. A pattern of misconduct
consisting solely of minor disciplinary infractions. If separation of a
member in entry level status is warranted solely by reason of minor
disciplinary infractions, the action should be processed under Entry
Level Performance and Conduct (section F., above).
(2) A pattern of misconduct. A pattern of misconduct consisting of
(a) descreditable involvement with civil or military authorities or (b)
conduct prejudicial to good order and discipline.
(3) Commission of a serious offense. Commission of a serious
military or civilian offense if in the following circumstances:
(a) The specific circumstances of the offense warrant separation;
and
(b) A punitive discharge would be authorized for the same or a
closely related offense under the Manual for Courts-Martial, 1969
(Revised Edition), as amended.
(4) Civilian conviction. (a) Conviction by civilian authorities or
action taken which is tantamount to a finding of guilty, including
similar adjudications in juvenile proceedings, when the specific
circumstances of the offense warrant separation, and the following
conditions are present:
1 A punitive discharge would be authorized for the same or a closely
related offense under the Manual for Courts-Martial; or
2 The sentence by civilian authorities includes confinement for six
months or more without regard to suspension or probation.
(b) Separation processing may be initiated whether or not a member
has filed an appeal of a civilian conviction or has stated an intention
to do so. Execution of an approved separation should be withheld
pending outcome of the appeal or until the time for appeal has passed,
but the member may be separated prior to final action on the appeal upon
request of the member or upon direction of the Secretary concerned.
b. Reporting. The Deputy Assistant Secretary (Military Personnel and
Force Management), Office of the ASD (MRA&L), shall require separate
reports under each subparagraph in paragraph K.1.a. for misconduct by
reason of drug abuse, unauthorized absence, and such other categories as
may be appropriate.
c. Related separations. Misconduct involving homosexuality shall be
processed under section H. Misconduct involving a fraudulent enlistment
is considered under subsection E.4., above.
2. Counseling and rehabilitation. Separation processing for a
pattern of misconduct (subparagraphs K.1.a. (1) and (2)) may not be
initiated until the member has been counseled formally concerning
deficiencies and has been afforded an opportunity to overcome those
deficiencies as reflected in appropriate counseling or personnel
records. If the sole basis of separation is a single offense
(subparagraph K.1.a.(3)) or a civilian conviction or a similar juvenile
adjudication (subparagraph K.1.a.(4)), the counseling and rehabilitation
requirements are not applicable.
3. Characterization or description. Characterization of service
normally shall be Under Other Than Honorable Conditions, but
characterization as General (under honorable conditions) may be
warranted under the guidelines in section C. of Part 2. For
respondents who have completed entry level status, characterization of
service as Honorable is not authorized unless the respondent's record is
otherwise so meritorious that any other characterization clearly would
be inappropriate and the separation is approved by a commander
exercising general court-martial jurisdiction or higher authority as
specified by the Secretary concerned. When characterization of service
Under Other Than Honorable Conditions is not warranted for a member in
entry level status under section C. of Part 2, the separation shall be
described as an Entry Level Separation.
4. Procedures. The Administrative Board Procedure (section C. of Part
3) shall be used, except that use of the Notification Procedure (section
B. of Part 3) is authorized if separation is based upon subparagraphs
K.1.a.(1) and K.1.a.(2) and characterization of service Under Other Than
Honorable Conditions is not warranted under section C. of Part 2.
L. Separation in Lieu of Trial by Court-Martial. 1. Basis. A member
may be separated upon request of trial by court-martial if charges have
been preferred with respect to an offense for which a punitive discharge
is authorized and it is determined that the member is unqualified for
further military service under the guidance set forth in section A. of
Part 2. This provision may not be used when section B. of paragraph
127c of the Manual for Courts-Martial provides the sole basis for a
punitive discharge unless the charges have been referred to a
court-martial empowered to adjudge a punitive discharge.
2. Characterization or description. Characterization of service
normally shall be Under Other Than Honorable Conditions, but
characterization as General (under honorable conditions) may be
warranted under the guidelines in section C. of Part 2. For
respondents who have completed entry level status, characterization of
service as Honorable is not authorized unless the respondent's record is
otherwise so meritorious that any other characterization clearly would
be inappropriate. When characterization of service Under Other Than
Honorable Conditions is not warranted for a member in entry level status
under section C. of Part 2, the separation shall be described as an
Entry Level Separation.
3. Procedures. a. The request for discharge must be submitted in
writing and signed by the member.
b. The member shall be afforded opportunity to consult with counsel
qualified under Article 27(b)(1) of the UCMJ. If the member refuses to
do so, counsel shall prepare a statement to this effect, which shall be
attached to the file, and the member shall state that he or she has
waived the right to consult with counsel.
c. Except when the member has waived the right to counsel, the
request shall be signed by counsel.
d. In the written request, the member shall state that he or she
understands the following:
(1) The elements of the offense or offenses charged;
(2) That characterization of service Under Other Than Honorable
Conditions is authorized; and
(3) The adverse nature of such a characterization and possible
consequences thereof.
e. The Secretary concerned shall also require that one or both of the
following matters be included in the request:
(1) An acknowledgment of guilt of one or more of the offenses or any
lesser included offenses for which a punitive discharge is authorized;
or
(2) A summary of the evidence or list of documents (or copies
thereof) provided to the member pertaining to the offenses for which a
punitive discharge is authorized.
f. The Separation Authority shall be a commander exercising general
court-martial jurisdiction or higher authority as specified by the
Secretary concerned.
g. Statements by the member or the member's counsel submitted in
connection with a request under this subsection are not admissible
against the member in a court-martial except as authorized under
Military Rule of Evidence 410, Manual for Courts-Martial.
M. Security. 1. Basis. When retention is clearly inconsistent with
the interest of national security, a member may be separated by reason
of security and under conditions and procedures established by the
Secretary of Defense in DoD 5200.2-R.
2. Characterization or description. Characterization of service or
description of a separation shall be in accordance with section C. of
Part 2.
N. Unsatisfactory Participation in the Ready Reserve. 1. Basis. A
member may be separated for unsatisfactory participation in the Ready
Reserve under criteria established by the Secretary concerned under 32
CFR Part 100 (DoD Directive 1215.13).
2. Characterization or description. Characterization of service or
description of a separation shall be in accordance with section C. of
Part 2 and 32 CFR Part 100 (DoD Directive 1215.13).
3. Procedures. The Administrative Board Procedure (section C. of Part
3) shall be used, except that the Notification Procedure (section B. of
Part 3) may be used if characterization of service Under Other Than
Honorable Conditions is not warranted under section C. of Part 2.
O. Secretarial Plenary Authority.
1. Basis. Notwithstanding any limitation on separations provided in
this part the Secretary concerned may direct the separation of any
member prior to expiration of term of service after determining it to be
in the best interests of the Service.
2. Characterization or description. Honorable or General (under
honorable conditions) as warranted under section C. of Part 2 unless an
Entry Level Separation is required under section C. of Part 2.
3. Procedures. Prior to involuntary separation, the Notification
Procedure (section B. of Part 3) shall be used, except the procedure for
requesting an Administrative Board (paragraph B.1.g. of Part 3) is not
applicable.
P. Reasons Established by the Military Departments. 1. Basis. The
Military Departments may establish additional reasons for separation for
circumstances not otherwise provided for in this part to meet specific
requirements, subject to approval by the ASD (MRA&L).
2. Counseling and rehabilitation. Separation processing may not be
initiated until the member has been counseled formally concerning
deficiencies and has been afforded an opportunity to overcome those
deficiencies as reflected in appropriate counseling or personnel records
except when the Military Department concerned provides in its
implementing document that counseling and rehabilitation requirements
are not applicable for the specific reason for separation.
3. Characterization or description. Characterization of service or
description of a separation shall be in accordance with section C. of
Part 2.
4. Procedures. The procedures established by the Military Departments
shall be consistent with the procedures contained in this part insofar
as practicable.
A. Separation. 1. Scope. This general guidance applies when
referenced in Part 1. Further guidance is set forth under the specific
reasons for separation in Part 1.
2. Guidance. a. There is a substantial investment in the training of
persons enlisted or inducted into the Military Services. As a general
matter, reasonable efforts at rehabilitation should be made prior to
initiation of separation proceedings.
b. Unless separation is mandatory, the potential for rehabilitation
and further useful military service shall be considered by the
Separation Authority and, where applicable, the Administrative Board.
If separation is warranted despite the potential for rehabilitation,
consideration should be given to suspension of the separation, if
authorized.
c. Counseling and rehabilitation efforts are a prerequisite to
initiation of separation proceedings only insofar as expressly set forth
under specific requirements for separation in Part 1. An alleged or
established inadequacy in previous rehabilitative efforts does not
provide a legal bar to separation.
d. The following factors may be considered on the issue of retention
or separation, depending on the circumstances of the case:
(1) The seriousness of the circumstances forming the basis for
initiation of separation proceedings, and the effect of the member's
continued retention on military discipline, good order, and morale.
(2) The likelihood of continuation or recurrence of the circumstances
forming the basis for initiation of separation proceedings.
(3) The likelihood that the member will be a disruptive or
undesirable influence in present or future duty assignments.
(4) The ability of the member to perform duties effectively in the
present and in the future, including potential for advancement or
leadership.
(5) The member's rehabilitative potential.
(6) The member's entire military record. (a) This may include:
1 Past contributions to the Service, assignments, awards and
decorations, evaluation ratings, and letters of commendation;
2 Letters of reprimand or admonition, counseling records, records of
nonjudicial punishment, records of conviction by court-martial and
records of involvement with civilian authorities; and
3 Any other matter deemed relevant by the Board, if any, or the
Separation Authority, based upon the specialized training, duties, and
experience of persons entrusted by this part with recommendations and
decisions on the issue of separation or retention.
(b) The following guidance applies to consideration of matter under
subparagraph A.2.d.(6)(a):
1 Adverse matter from a prior enlistment or period of military
service, such as records of nonjudicial punishment and convictions by
courts-martial, may be considered only when such records would have a
direct and strong probative value in determining whether separation is
appropriate. The use of such records ordinarily shall be limited to
those cases involving patterns of conduct manifested over an extended
period of time.
2 Isolated incidents and events that are remote in time normally have
little probative value in determining whether administrative separation
should be effected.
3. Limitations on separation actions. A member may not be separated
on the basis of the following:
a. Conduct that has been the subject of judicial proceedings
resulting in an acquittal or action having the effect thereof except in
the following circumstances:
(1) When such action is based upon a judicial determination not going
to the guilt or innocence of the respondent; or
(2) When the judicial proceeding was conducted in a State or foreign
court and the separation is approved by the Secretary concerned.
b. Conduct that has been the subject of a prior Administrative Board
in which the Board entered an approved finding that the evidence did not
sustain the factual allegations concerning the conduct except when the
conduct is the subject of a rehearing ordered on the basis of fraud or
collusion; or
c. Conduct that has been the subject of an administrative separation
proceeding resulting in a final determination by a Separation Authority
that the member should be retained, except in the following
circumstances:
(1) When there is subsequent conduct or performance forming the
basis, in whole or in part, for a new proceeding;
(2) When there is new or newly discovered evidence that was not
reasonably available at the time of the prior proceeding; or
(3) When the conduct is the subject of a rehearing ordered on the
basis of fraud or collusion.
B. Suspension of Separation. 1. Suspension. a. Unless prohibited by
this part a separation may be suspended for a specified period of not
more than 12 months by the Separation Authority or higher authority if
the circumstances of the case indicate a reasonable likelihood or
rehabilitation.
b. During the period of suspension, the member shall be afforded an
opportunity to meet appropriate standards of conduct and duty
performance.
c. Unless sooner vacated or remitted, execution of the approved
separation shall be remitted upon completion of the probationary period,
upon termination of the member's enlistment or period of obligated
service, or upon decision of the Separation Authority that the goal of
rehabilitation has been achieved.
2. Action during the period of suspension. a. During the period of
suspension, if there are further grounds for separation under Part 1,
one or more of the following actions may be taken:
(1) Disciplinary action;
(2) New administrative action; or
(3) Vacation of the suspension accompanied by execution of the
separation if the member engages in conduct similar to that for which
separation was approved (but suspended) or otherwise fails to meet
appropriate standards of conduct and duty performance.
b. Prior to vacation of a suspension, the member shall be notified in
writing of the basis for the action and shall be afforded the
opportunity to consult with counsel (as provided in paragraph B.1.f. of
Part 3) and to submit a statement in writing to the Separation
Authority. The respondent shall be provided a reasonable period of
time, but not less than 2 working days, to act on the notice. If the
respondent identifies specific legal issues for consideration by the
Separation Authority, the matter shall be reviewed by a judge advocate
or civilian lawyer employed by the government prior to final action by
the Separation Authority.
C. Characterization of Service or Description of Separation. 1.
Types of characterization or description. a. At separation, the
following types of characterization of service or description of
separation are authorized under this part:
(1) Separation with characterization of service as Honorable, General
(under honorable conditions), or Under Other Than Honorable Conditions.
(2) Entry Level Separation.
(3) Order of release from the custody and control of the Military
Services by reason of void enlistment or induction.
(4) Separation by being dropped from the rolls of the Service.
b. Any of the types of separation listed in this section may be used
in appropriate circumstances unless a limitation set forth in this
section or in Part 1 (Reasons for Separation).
2. Characterization of service. a. General considerations. (1)
Characterization at separation shall be based upon the quality of the
member's service, including the reason for separation and guidance in
paragraph C.2.b., below, subject to the limitations set forth under
various reasons for separation in Part 1. The quality of service will
be determined in accordance with standards of acceptable personal
conduct and performance of duty for military personnel. These standards
are found in the 10 U.S.C., Sections 801-940, UCMJ, directives and
regulations issued by the Department of Defense and the Military
Departments, and the time-honored customs and traditions of military
service.
(2) The quality of service of a member on active duty or active duty
for training is affected adversely by conduct that is of a nature to
bring discredit on the Military Services or is prejudicial to good order
and discipline, regardless of whether the conduct is subject to UCMJ
jurisdiction. Characterization may be based on conduct in the civilian
community, and the burden is on the respondent to demonstrate that such
conduct did not adversely affect the respondent's service.
(3) The reasons for separation, including the specific circumstances
that form the basis for the separation, shall be considered on the issue
of characterization. As a general matter, characterization will be
based upon a pattern of behavior rather than an isolated incident.
There are circumstances, however, in which the conduct or performance of
duty reflected by a single incident provides the basis for
characterization.
(4) Due consideration shall be given to the member's age, length of
service, grade, aptitude, physical and mental condition, and the
standards of acceptable conduct and performance of duty.
b. Types of characterization. (1) Honorable. The Honorable
characterization is appropriate when the quality of the member's service
generally has met the standards of acceptable conduct and performance of
duty for military personnel, or is otherwise so meritorious that any
other characterization would be clearly inappropriate. In the case of
an Honorable Discharge, an Honorable Discharge Certificate (DD Form 256)
will be awarded and a notation will be made on the appropriate copies of
the DD Form 214/5 in accordance with 32 CFR Part 45 (DoD Directive
1336.1).
(2) General (under honorable conditions). If a member's service has
been honest and faithful, it is appropriate to characterize that service
under honorable conditions. Characterization of service as General
(under honorable conditions) is warranted when significant negative
aspects of the member's conduct or performance of duty outweigh positive
aspects of the member's military record.
(3) Under Other Than Honorable Conditions. (a) This characterization
may be issued in the following circumstances:
1 When the reason for separation is based upon a pattern of behavior
that constitutes a significant departure from the conduct expected of
members of the Military Services.
2 When the reason for separation is based upon one or more acts or
omissions that constitute a significant departure from the conduct
expected of members of the Military Services. Examples of factors that
may be considered include the use of force or violence to produce
serious bodily injury or death, abuse of a special position of trust,
disregard by a superior of customary superior-subordinate relationships,
acts or omissions that endanger the security of the United States or the
health and welfare of other members of the Military Services, and
deliberate acts or omissions that seriously endanger the health and
safety of other persons.
(b) This characterization is authorized only if the member has been
afforded the opportunity to request an Administrative Board, except as
provided in section L. of Part 1 (Separation in Lieu of Trial by
Courts-Martial).
c. Limitations on characterization. Except as otherwise provided in
this paragraph, characterization will be determined solely by the
member's military record during the current enlistment or period of
service to which the separation pertains, plus any extensions thereof
prescribed by law or regulation or effected with the consent of the
member.
(1) Prior service activities, including records of conviction by
courts-martial, records of absence without leave, or commission of other
offenses for which punishment was not imposed shall not be considered on
the issue of characterization. To the extent that such matters are
considered on the issue of retention or separation (subsection A.2. of
this Part 2), the record of proceedings may reflect express direction
that such information shall not be considered on the issue of
characterization.
(2) Preservice activities may not be considered on the issue of
characterization except as follows: in a proceeding concerning
fraudulent entry into military service (subsection E.4. of Part 1),
evidence of preservice misrepresentations about matters that would have
precluded, postponed, or otherwise affected the member's eligibility for
enlistment or induction may be considered on the issue of
characterization.
(3) The limitations in subsection A.3., above, as to matters that may
be considered on the issue of separation are applicable to matters that
may be considered on the issue of characterization.
(4) When the sole basis for separation is a serious offense which
resulted in a conviction by a court-martial that did not impose a
punitive discharge, the member's service may not be characterized Under
Other Than Honorable Conditions unless such characterization is approved
by the Secretary concerned.
(5) Conduct in the civilian community of a member of a reserve
component who is not on active duty or active duty for training may form
the basis for characterization Under Other Than Honorable Conditions
only if such conduct affects directly the performance of military
duties. Such conduct may form the basis of characterization as General
(under honorable conditions) only if such conduct has an adverse impact
on the overall effectiveness of the service, including military morale
and efficiency.
(6) A member's voluntary submission to a DoD treatment and
rehabilitation program (for personal use of drugs) and evidence provided
voluntarily by the member concerning personal use of drugs as part of
initial entry into such a program may not be used against the member on
the issue of characterization. This limitation does not preclude the
following actions:
(a) The introduction of evidence for impeachment or rebuttal purposes
in any proceeding in which the evidence of drug abuse (or lack thereof)
has been first introduced by the member; and
(b) Taking action based on independently derived evidence, including
evidence of drug abuse after initial entry into the treatment and
rehabilitation program.
(7) The results of mandatory urinalysis may be used on the issue of
characterization except as provided in the Deputy Secretary of Defense
Memorandum, ''Alcohol and Drug Abuse,'' December 28, 1981, and rules
promulgated thereunder.
3. Uncharacterized separations. a. Entry Level Separation. (1) A
separation shall be described as an Entry Level Separation if separation
processing is initiated while a member is in entry level status, except
in the following circumstances:
(a) When characterization Under Other Than Honorable Conditions is
authorized under the reason for separation (Part 1) and is warranted by
the circumstances of the case; or
(b) The Secretary concerned, on a case-by-case basis, determines that
characterization of service as Honorable is clearly warranted by the
presence of unusual circumstances involving personal conduct and
performance of military duty. This characterization is authorized when
the member is separated under Part 1 by reason of selected changes in
service obligation (section B.), Convenience of the Government (section
C.), Disability (section D.), Secretarial Plenary Authority (secton O.),
or an approved reason established by the Military Department (section
P.).
(2) In time of mobilization or in other appropriate circumstances,
the ASD (MRA&L) may authorize the Secretary concerned to delegate the
authority in subparagraph (1)(b), above, (concerning the Honorable
characterization) to a general court-martial convening authority with
respect to members serving in operational units.
(3) With respect to administrative matters outside this Part that
require a characterization as Honorable or General, an Entry Level
Separation shall be treated as the required characterization. This
provision does not apply to administrative matters that expressly
require different treatment of an Entry Level Separation except as
provided in subparagraph (4), below.
(4) In accordance with 10 U.S.C. 1163, an Entry Level Separation for
a member of a Reserve Component separated from the Delayed Entry Program
is ''under honorable conditions.''
b. Void enlistments or inductions. A member shall not receive a
discharge, characterization of service at separation, or an Entry Level
Separation if the enlistment or induction is void except when a
constructive enlistment arises and such action is required under
subparagraph (3), below. If characterization or an Entry Level
Separation is not required, the separation shall be described as an
order of release from custody or control of the Military Services.
(1) An enlistment is void in the following circumstances:
(a) If it was effected without the voluntary consent of a person who
has the capacity to understand the significance of enlisting in the
Military Services, including enlistment of a person who is intoxicated
or insane at the time of enlistment. 10 U.S.C. 504; Article 2(b),
UCMJ.
(b) If the person is under 17 years of age. 10 U.S.C. 505.
(c) If the person is a deserter from another Military Service. 10
U.S.C. 504.
(2) Although an enlistment may be void at its inception, a
constructive enlistment shall arise in the case of a person serving with
a Military Service who:
(a) Submitted voluntarily to military authority;
(b) Met the mental competency and minimum 10 U.S.C. age
qualifications of Sections 504 and 505 of, at the time of voluntary
submission to military authority;
(c) Received military pay or allowances; and
(d) Performed military duties.
(3) If an enlistment that is void at its inception is followed by a
constructive enlistment within the same term of service,
characterization of service or description of separation shall be in
accordance with subsection C.2. or paragraph C.3.a. of this Part 2, as
appropriate; however, if the enlistment was void by reason of desertion
from another Military Service, the member shall be separated by an order
of release from the custody and control of the Service regardless of any
subsequent constructive enlistment. The occurrence of such a
constructive enlistment does not preclude the Military Departments, in
appropriate cases, from either retaining the member or separating the
member under section E. of Part 1 on the basis of the circumstances
that occasioned the original void enlistment or upon any other basis for
separation provided in this Part.
c. Dropping from the rolls. A member may be dropped from the rolls
of the Service when such action is authorized by the Military Department
concerned and a characterization of service or other description of
separation is not authorized or warranted.
A. Scope. 1. The supplementary procedures in this Part are applicable
only when required under a specific reason for separation (Part 1).
These procedures are subject to the requirements set forth in Part 1
with respect to specific reasons for separation.
2. When a member is processed on the basis of multiple reasons for
separation, the following guidelines apply to procedural requirements
(including procedural limitations on characterization of service or
description of separation):
a. The requirements for each reason will be applied to the extent
practicable.
b. If a reason for separation set forth in the notice of proposed
action requires processing under the Administrative Board Procedure
(section C., below), the entire matter shall be processed under section
C.
c. If more than one reason for separation is approved, the guidance
on characterization that provides the greatest latitude may be applied.
d. When there is any other clear conflict between a specific
requirement applicable to one reason and a general requirement
applicable to another reason, the specific requirement shall be applied.
e. If a conflict in procedures cannot be resolved on the basis of the
foregoing principles, the procedure most favorable to the respondent
shall be used.
B. Notification Procedure. 1. Notice. If the Notification Procedure
is initiated under Part 1, the respondent shall be notified in writing
of the matter set forth in this section.
a. The basis of the proposed separation, including the circumstances
upon which the action is based and a reference to the applicable
provisions of the Military Department's implementing regulation.
b. Whether the proposed separation could result in discharge, release
from active duty to a reserve component, transfer from the Selected
Reserve to the IRR, release from custody or control of the Military
Services, or other form of separation.
c. The least favorable characterization of service or description of
separation authorized for the proposed separation.
d. The right to obtain copies of documents that will be forwarded to
the Separation Authority supporting the basis of the proposed
separation. Classified documents may be summarized.
e. The respondent's right to submit statements.
f. The respondent's right to consult with counsel qualified under
Article 27(b)(1) of the UCMJ. Nonlawyer counsel may be appointed when
the respondent is deployed aboard a vessel or in similar circumstances
of separation from sufficient judge advocate resources as determined
under standards and procedures specified by the Secretary concerned.
The respondent also may consult with civilian counsel retained at the
member's own expense.
g. If the respondent has 6 or more years of total active and reserve
military service, the right to request an Administrative Board (section
C.).
h. The right to waive paragraphs d., e., f. or g., above, after being
afforded a reasonable opportunity to consult with counsel, and that
failure to respond shall constitute a waiver of the right.
2. Additional notice requirements. a. If separation processing is
initiated on the basis of more than one reason under Part 1, the
requirements of paragraph B.1.a. apply to all proposed reasons for
separation.
b. If the respondent is in civil confinement, absent without leave,
or in a reserve component not on active duty or upon transfer to the
IRR, the relevant notification procedures in sections D., E., or F. of
this Part 3 apply.
c. Additional notification requirements are set forth in Part 1,
sections C. and D., when characterization of service as General (under
honorable conditions) is authorized and the member is processed for
separation by reason of Convenience of the Government or Disability.
3. Response. The respondent shall be provided a reasonable period of
time, but not less than 2 working days, to act on the notice. An
extension may be granted upon a timely showing of good cause by the
respondent. The decision of the respondent on each of the rights set
forth in paragraphs 1.d. through g., above, and applicable provisions
referenced in subsection 2. shall be recorded and signed by the
respondent and counsel, subject to the following limitation:
a. If notice by mail is authorized under sections D., E., or F. of
this Part 3 and the respondent fails to acknowledge receipt or submit a
timely reply, that fact shall constitute a waiver of rights and an
appropriate notation shall be recorded on a retained copy of the
appropriate form.
b. If the respondent declines to respond as to the selection of
rights, such declination shall constitute a waiver of rights and an
appropriate notation will be made on the form provided for respondent's
reply. If the respondent indicates that one or more of the rights will
be exercised, but declines to sign the appropriate form, the selection
of rights will be noted and an appropriate notation as to the failure to
sign will be made.
4. Separation Authority. a. The Separation Authority for actions
initiated under the Notification Procedure shall be a special
court-martial convening authority or higher authority. The Secretary
concerned also may authorize a commanding officer in grade 0-5 or above
with a judge advocate or legal advisor available to the command to act
as a Separation Authority for a specified reason for separation, subject
to approval by the ASD(MRA&L). When the case has been initiated under
the Administrative Board Procedure and the member has waived the right
to a hearing under section C.4., the Separation Authority shall be an
official designated under subsection C.6., below.
b. The action of the Separation Authority shall be recorded.
c. The Separation Authority shall determine whether there is
sufficient evidence to verify the allegations set forth in the
notification of the basis for separation. If an allegation is not
supported by a preponderance of the evidence, it may not be used as a
basis for separation.
d. If there is a sufficient factual basis for separation, the
Separation Authority shall determine whether separation is warranted
under the guidance in sections A. and B. of Part 2. On the basis of
that guidance, the Separation Authority shall direct one of the
following actions:
(1) Retention;
(2) Separation for a specific reason under Part 1; or
(3) Suspended separation in accordance with the guidance in section
B. Part 2.
e. If the Separation Authority directs separation or suspended
separation on the basis of more than one reason under Part 1, the
Separation Authority shall designate the most appropriate basis as the
primary reason for reporting purposes.
f. If separation or a suspended separation is directed, the
Separation Authority shall assign a characterization or description in
accordance with section C. of Part 2.
g. Except when characterization Under Other Than Honorable Conditions
is directed or the member is separated on the basis of homosexuality or
a void enlistment or induction, the Secretary concerned may authorize
the Separation Authority or higher authority to make a recommendation or
determination as to whether the respondent should be retained in the
Ready Reserve as a mobilization asset to fulfill the respondent's total
military obligation. This option applies in cases involving separation
from active duty or from the Selected Reserve. Section E. of this Part
3 is applicable if such action is approved.
C. Administrative Board Procedure. 1. Notice. If an Administrative
Board is required, the respondent shall be notified in writing of the
matters set forth in this section.
a. The basis of the proposed separation, including the circumstances
upon which the action is based and reference to the applicable
provisions of the Military Department's implementing regulation.
b. Whether the proposed separation could result in discharge, release
from active duty to a reserve component, transfer from the Selected
Reserve to the IRR, release from the custody or control of the Military
Services, or other form of separation.
c. The least favorable characterization of service or description of
separation authorized for the proposed separation.
d. The respondent's right to consult with counsel as prescribed in
paragraph B.1.f. of this Part 3. However, nonlawyer counsel may not
represent a respondent before an Administrative Board unless (1) the
respondent expressly declines appointment of counsel qualified under
Article 27(b) (1) of the UCMJ (10 U.S.C.) and requests a specific
nonlawyer counsel; or (2) the Separation Authority assigns nonlawyer
counsel as assistant counsel.
e. The right to obtain copies of documents that will be forwarded to
the Separation Authority supporting the basis of the proposed
separation. Classified documents may be summarized.
f. The respondent's right to request a hearing before an
Administrative Board.
g. The respondent's right to present written statements instead of
board proceedings.
h. The respondent's right to representation at the Administrative
Board either by military counsel appointed by the Convening Authority or
by military counsel of the respondent's own choice (if counsel of choice
is determined to be reasonably available under regulations of the
Secretary concerned) but not both.
i. The right to representation at the Administrative Board by
civilian counsel at the respondent's own expense.
j. The right to waive the rights in paragraphs d. through i., above.
k. That failure to respond after being afforded a reasonable
opportunity to consult with counsel constitutes a waiver of the rights
in paragraphs d. through i., above.
l. Failure to appear without good cause at a hearing constitutes
waiver of the right to be present at the hearing.
2. Additional notice requirements. a. If separation processing is
initiated on the basis of more than one reason under Part 1, the
requirements of paragraph C.1.a. apply to all proposed reasons for
separation.
b. If the respondent is in civil confinement, absent without leave,
or in a reserve component not on active duty or upon transfer to the
IRR, the relevant notification procedures in sections D., E., or F. of
this Part 3 apply.
c. Additional notification requirements are set forth in sections C.
and D., Part 1, when characterization of service as General (under
honorable conditions) is authorized and the member is processed for
separation by reason of Convenience of the Government or Disability.
3. Response. The respondent shall be provided a reasonable period of
time, but not less than 2 working days, to act on the notice. An
extension may be granted upon a timely showing of good cause by the
respondent. The decision of the respondent on each of the rights set
forth in paragraphs 1.d. through 1.i., above, and applicable provisions
referenced in subsection 2., above, shall be recorded and signed by the
respondent and counsel, subject to the following limitations:
a. If notice by mail is authorized under sections D., E., or F. of
this Part 3 and the respondent fails to acknowledge receipt or submit a
timely reply, that fact shall constitute a waiver of rights and an
appropriate notation shall be recorded on a retained copy of the
appropriate form.
b. If the respondent declines to respond as to the selection of
rights, such declination shall constitute a waiver of rights and an
appropriate notation will be made on the form provided for respondent's
reply. If the respondent indicates that one or more of the rights will
be exercised, but declines to sign the appropriate form, the selection
of rights will be noted and an appropriate notation as to the failure to
sign will be made.
4. Waiver. a. If the right to a hearing before an Administrative
Board is waived, the case will be processed under subsection B.4. of
this Part 3 (Notification Procedure), but the Separation Authority in
such cases shall be an official designated under subsection C.6.
b. When authorized by the Secretary concerned, a respondent entitled
to an Administrative Board may exercise a conditional waiver after a
reasonable opportunity to consult with counsel under paragraph C.1.d. A
conditional waiver is a statement initiated by a respondent waiving the
right to a board proceeding contingent upon receiving a characterization
of service or description of separation higher than the least favorable
characterization or description authorized for the basis of separation
set forth in the notice to the respondent.
5. Hearing procedure. If a respondent requests a hearing before an
Administrative Board, the following procedures are applicable:
a. Composition. (1) The Convening Authority shall appoint to the
Administrative Board at least three experienced commissioned, warrant,
or noncommissioned officers. Enlisted personnel appointed to the Board
shall be in grade E-7 or above, and shall be senior to the respondent.
At least one member of the Board shall be serving in the grade of 0-4 or
higher, and a majority shall be commissioned or warrant officers. The
senior member shall be the president of the Board. The Convening
Authority also may appoint to the Board a nonvoting recorder. A
nonvoting legal advisor may be appointed to assist the Board if
authorized by the Secretary concerned.
(2) If the respondent is an enlisted member of a reserve component or
holds an appointment as a reserve commissioned or warrant officer, the
Board shall include at least one Reserve officer as a voting member.
Voting members shall be senior to the respondent's reserve grade. See
10 U.S.C. 266.
(3) The Convening Authority shall insure that the opportunity to
serve on Administrative Boards is given to women and minorities. The
mere appointment or failure to appoint a member of such a group to the
Board, however, does not provide a basis for challenging the proceeding.
(4) The respondent may challenge a voting member of the Board or the
legal advisor, if any, for cause only.
b. Presiding officer. The president shall preside and rule finally
on all matters of procedure and evidence, but the rulings of the
president may be overruled by a majority of the Board. If appointed,
the legal advisor shall rule finally on all matters of evidence and
challenges except challenges to himself.
c. Witnesses. (1) The respondent may request the attendance of
witnesses in accordance with the implementing instruction of the
Military Department concerned.
(2) In accordance with such instructions, the respondent may submit a
written request for TDY or invitational travel orders for witnesses.
Such a request shall contain the following matter:
(a) A synoposis of the testimony that the witness is expected to
give.
(b) An explanation of the relevance of such testimony to the issues
of separation or characterization.
(c) An explanation as to why written or recorded testimony would not
be sufficient to provide for a fair determination.
(3) The Convening Authority may authorize expenditure of funds for
production of witnesses only if the presiding officer (after
consultation with a judge advocate) or the legal advisor (if appointed)
determines that:
(a) The testimony of a witness is not cumulative;
(b) The personal appearance of the witness is essential to a fair
determination on the issues of separation or characterization;
(c) Written or recorded testimony will not accomplish adequately the
same objective;
(d) The need for live testimony is substantial, material, and
necessary for a proper disposition of the case; and
(e) The significance of the personal appearance of the witness, when
balanced against the practical difficulties in producing the witness,
favors production of the witness. Factors to be considered in relation
to the balancing test include, but are not limited to, the cost of
producing the witness, the timing of the request for production of the
witness, the potential delay in the proceeding that may be caused by
producing the witness, or the likelihood of significant interference
with military operational deployment, mission accomplishment, or
essential training.
(4) If the Convening Authority determines that the personal testimony
of a witness is required, the hearing will be postponed or continued if
necessary to permit the attendance of the witness.
(5) The hearing shall be continued or postponed to provide the
respondent with a reasonable opportunity to obtain a written statement
from the witness if a witness requested by the respondent is unavailable
in the following circumstances:
(a) When the presiding officer determines that the personal testimony
of the witness is not required;
(b) When the commanding officer of a military witness determines that
military necessity precludes the witness' attendance at the hearing; or
(c) When a civilian witness declines to attend the hearing.
(6) Paragraph (5)(c), above, does not authorize a federal employee to
decline to appear as a witness if directed to do so in accordance with
applicable procedures of the employing agency.
d. Record of proceedings. In cases where the Board recommends
separation, the record of the proceedings shall be kept in summarized
form unless a verbatim record is required by the Secretary concerned.
In cases where the Board recommends retention, a record of the
proceedings is optional unless required by the Secretary concerned.
However, a summarized or verbatim record shall be prepared in any cases
where the board recommends retention and the Separation Authority elects
to forward the matter to the Secretary concerned under subparagraph
C.6.d.(2)(6). The Board reporter shall retain all materials necessary to
prepare a transcript should the Separation Authority elect to forward
the case to the Secretary. In all cases, the findings and
recommendations of the Board shall be in verbatim form.
e. Presentation of evidence. The rules of evidence for
courts-martial and other judicial proceedings are not applicable before
an Administrative Board. Reasonable restrictions shall be observed,
however, concerning relevancy and competency of evidence.
f. Rights of the respondent. (1) The respondent may testify in his
or her own behalf, subject to the provisions of Article 31(a), UCMJ (10
U.S.C.).
(2) At any time during the proceedings, the respondent or counsel may
submit written or recorded matter for consideration by the Board.
(3) The respondent or counsel may call witnesses in his or her
behalf.
(4) The respondent or counsel may question any witness who appears
before the Board.
(5) The respondent or counsel may present argument prior to when the
Board closes the case for deliberation on findings and recommendations.
g. Findings and recommendations. (1) The Board shall determine its
findings and recommendations in closed session. Only voting members of
the Board shall be present.
(2) The Board shall determine whether each allegation set forth in
the notice of proposed separation is supported by a preponderance of the
evidence.
(3) The Board shall then determine under the guidance in section A.
of Part 2 whether the findings warrant separation with respect to the
reason for separation set forth in the Notice. If more than one reason
was contained in the Notice, there shall be a separate determination for
each reason.
(4) The Board shall make recommendations on the following:
(a) Retention or separation. The Board shall recommend retention or
separation.
(b) Suspension of separation. If the Board recommends separation, it
may recommend that the separation be suspended in accordance with
section B. of Part 2, but the recommendation of the Board as to
suspension is not binding on the Separation Authority.
(c) Characterization of service or description of separation. If
separation or suspended separation is recommended, the Board shall
recommend a characterization of service or description of separation as
authorized in Part 1 (Reasons for Separation) in accordance with the
guidance in section C. of Part 2.
(d) Transfer to the Ready Reserve. Except when the Board has
recommended separation on the basis of homosexuality or has recommended
characterization of service Under Other Than Honorable Conditions, the
Secretary Concerned may authorize the Board to make a recommendation as
to whether the respondent should be retained in the Ready Reserve as a
mobilization asset to fulfill the respondent's total military
obligation. This option applies to cases involving separation from
active duty or from the Selected Reserve. Section E. of this Part 3 is
applicable if the action is approved.
6. Separation Authority. A. The separation Authority for actions
initiated under the Administrative Board Procedure shall be a general
court-martial convening authority or higher authority. The Secretary
concerned also may authorize a commanding officer in grade 0-7 or above
with a judge advocate or legal advisor available to his command to act
as a separation authority in specified circumstances. When an
Administrative Board recommends characterization of service as Honorable
or General (under honorable conditions), the Separation Authority may be
exercised by an officer designated under subsection B.4. When the case
has been initiated under the Notification Procedure and the hearing is a
result of a request under paragraph B.1.g., the Separation Authority
shall be as designated in subsection B.4.
b. In every case in which characterization of sevice Under Other Than
Honorable Conditions is recommended, the record of the Board's
proceedings will be reviewed by a judge advocate or civilian attorney
employed by the Military Department prior to action by the Separation
Authority. Such review is not required when another characterization is
recommended unless the respondent identifies specific legal issues for
consideration by the Separation Authority.
c. The respondent will be provided with a copy of the Board's
statement of facts and recommendations.
d. The Separation Authority shall take action in accordance with this
subparagraph, the requirements of Part 1 with respect to the reason for
separation, and the guidance in Part 2 on separation and
characterization.
(1) If the Separation Authority approves the recommendations of the
Board on the issue of separation or characterization (or both) this
constitutes approval of the Board's findings and recommendations under
paragraph C.5.g. unless the Separation Authority expressly modifies such
findings or recommendations.
(2) If the Board recommends retention, the Separation Authority may
take one of the following actions:
(a) Approve the recommendation.
(b) Forward the matter to the Secretary concerned with a
recommendation for separation based upon the circumstances of the case.
In such a case, the Secretary may direct retention or separation. If
the Secretary approves separation, the characterization of service or
description of separation will be Honorable, General (under honorable
conditions) or an Entry Level Separation under the guidance in section
C. of Part 2.
(3) If the Board recommends separation, the Separation Authority may:
(a) Approve the Board's recommendation;
(b) Approve the Board's recommendation, but modify the
recommendations by one or more of the following actions when
appropriate:
1 Approve the separation but suspend execution as provided in section
B. of Part 2.
2 Change the character of service or description of separation to a
more favorable characterization or description.
3 Change the Board's recommendation, if any, concerning transfer to
the IRR.
(c) Disapprove the Board's recommendation and retain the respondent.
(4) If the Separation Authority approves the Board's findings and
recommendations in whole or in part with respect to more than one reason
under Part 1, the Separation Authority shall designate the most
appropriate basis as the primary reason for reporting purposes.
(5) If the Separation Authority finds legal prejudice to a
substantial right of the respondent or determines that the findings of
the Board have been obtained by fraud or collusion, the case may be
referred to a new board. No member of the new board shall have served
on a prior board that considered the case. The Separation Authority may
not approve findings and recommendations less favorable to the
respondent than those rendered by the previous board unless the
Separation Authority finds that fraud or collusion in the previous board
is attributable to the respondent or an individual acting on the
respondent's behalf.
D. Additional Provisions Concerning Members Confined by Civil
Authorities. 1. If proceedings under this part have been initiated
against a respondent confined by civil authorities, the case may be
processed in the absence of the respondent. Paragraph C.5.e. of this
Part 3 is not applicable except insofar as such rights can be exercised
by counsel on behalf of the respondent.
2. The following requirements apply:
a. The notice shall contain the matter set forth in subsection B.1.
of this Part or subsection C.1. (Notice in the Administrative Board
Procedure), as appropriate. The notice shall be delivered personally to
the respondent or sent by registered mail or certified mail, return
receipt requested (or by an equivalent form of notice if such service is
not available for delivery by U.S. mail at an address outside the United
States). If the member refuses to acknowledge receipt of notice, the
individual who mails the notification shall prepare a Sworn Affidavit of
Service by Mail (see 32 CFR Part 100) (DoD Directive 1215.13), which
will be inserted in the member's personnel file together with PS Form
3800.
b. If delivered personally, receipt shall be acknowledged in writing
by the respondent. If the respondent does not acknowledge receipt, the
notice shall be sent by mail as provided in paragraph 2.a., above.
c. The notice shall state that the action has been suspended until a
specific date (not less than 30 days from the date of delivery) in order
to give the respondent the opportunity to exercise the rights set forth
in the notice. If respondent does not reply by such date, the
separation authority shall take appropriate action under subsection B.4.
of this Part 3.
d. The name and address of the military counsel for appointed
consultation shall be specified in the notice.
e. If the case involves entitlement to an Administrative Board, the
respondent shall be notified that the board will proceed in the
respondent's absence and that the case may be presented on respondent's
behalf by counsel for the respondent.
E. Additional Requirements for Certain Members of Reserve Components.
1. Members of reserve components not on active duty. a. If
proceedings under this Chapter have been initiated against a member of a
reserve component not on active duty, the case may be processed in the
absence of the member in the following circumstances:
(1) At the request of the member;
(2) If the member does not respond to the notice of proceedings on or
before the suspense date provided therein; or
(3) If the member fails to appear at a hearing as provided in
paragraph C.1.1.
b. The notice shall contain the matter set forth in subsections B.1.
or C.1. of this Part 3, as appropriate.
c. If the action involves a transfer to the IRR under circumstances
in which the procedures in this Appendix A are applicable, the member
will be notified that the character of service upon transfer to the IRR
also will constitute the character of service upon discharge at the
completion of the military service obligation unless specified
conditions established by the Secretary concerned are met.
2. Transfer to the IRR. Upon transfer to the IRR, the member will be
notified of the following:
a. The character of service upon transfer from active duty or the
Selected Reserve to the IRR, and that the character of service upon
completion of the military service obligation will be the same unless
specified conditions established by the Secretary concerned are met.
b. The date upon which the military service obligation will expire.
c. The date by which the member must submit evidence of satisfactory
completion of the specified conditions.
3. If the member submits evidence of completion of the specified
conditions but the Military Department proposes to issue a discharge
other than an Honorable Discharge, the Notification Procedure shall be
used. An Administrative Board is not required at this point
notwithstanding the member's years of service.
4. If the member does not submit such information on or before the
date specified in the notice, no further proceedings are required. The
character of discharge at the completion of the military service
obligation shall be the same as the character of service upon transfer
from the Selected Reserve to the IRR.
5. The following requirements apply to the notices required by
subsections E.1. and E.2. of this Part 3.
a. Reasonable effort should be made to furnish copies of the notice
to the member through personal contact by a representative of the
command. In such a case, a written acknowledgment of the notice shall
be obtained.
b. If the member cannot be contacted or refuses to acknowledge
receipt of the notice, the notice shall be sent by registered or
certified mail, return receipt requested (or by an equivalent form of
notice if such service by U.S. Mail is not available for delivery at an
address outside the United States) to the most recent address furnished
by the member as an address for receipt or forwarding of official mail.
The individual who mails the notification shall prepare a Sworn
Affidavit of Service by Mail (see 32 CFR Part 100 (DoD Directive
1215.13)), which will be inserted in the member's personnel file
together with PS Form 3800.
F. Additional Requirements for Members Beyond Military Control by
Reason of Unauthorized Absence. 1. Determination of applicability. If
the general court-martial convening authority or higher authority
determines that separation is otherwise appropriate under this part, a
member may be separated without return to military control in one or
more of the following circumstances:
a. Absence without authority after receiving notice of initiation of
separation processing.
b. When prosecution of a member who is absent without authority
appears to be barred by the statute of limitations, Article 43, UCMJ.
c. When a member who is an alien is absent without leave and appears
to have gone to a foreign country where the United States has no
authority to apprehend the member under a treaty or other agreement.
2. Notice. Prior to execution of the separation under paragraphs 1.b.
or 1.c., the member will be notified of the imminent action by
registered mail or certified mail, return receipt requested (or by an
equivalent form of Notice if such service by U.S. Mail is not available
for delivery at an address outside the United States) to the member's
last known address or the next of kin under regulations prescribed by
the Military Department concerned. The notice shall contain the matter
set forth in subsections B.1. or C.1., as appropriate, and shall specify
that the action has been suspended until a specific date (not less than
30 days from the date of mailing) in order to give the respondent the
opportunity to return to military control. If the respondent does not
return to military control by such date, the separation authority shall
take appropriate action under subsection B.4. of this Part 3.
3. Members of reserve components. See 10 U.S.C 1163 with respect to
limitations on separation of members of reserve components.
(47 FR 10174, Mar. 9, 1982, as amended at 52 FR 46997, Dec. 11, 1987)
1Personality disorders are described in the Diagnostic and
Statistical Manual (DSM-III) of Mental Disorders, 3rd Edition, Committee
on Nomenclature & Statistics, American Psychiatric Association,
Washington, D.C., 1978.
32 CFR 41.6 PART 42 -- INTERCEPTION OF WIRE AND ORAL COMMUNICATIONS FOR
LAW ENFORCEMENT PURPOSES
Sec.
42.1 Reissuance and purpose.
42.2 Applicability and scope.
42.3 Policy.
42.4 Waivers.
42.5 Responsibilities.
42.6 Definitions.
42.7 Procedures, record administration and reports.
42.8 Information to be included in reports of interceptions and pen
register operations.
Authority: 5 U.S.C. 301.
Source: 43 FR 39988, Sept. 8, 1978, unless otherwise noted.
32 CFR 42.1 Reissuance and purpose.
This part reissues Part 42 to update established policies,
procedures, and restrictions governing interception of wire and oral
communications and the use of pen registers and related devices for law
enforcement purposes, both in the United States and abroad, in
accordance with 47 U.S.C. 605 and 18 U.S.C. 2510-2520.
32 CFR 42.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the military departments, the Organization of the Joint
Chiefs of Staff, the defense agencies, and the unified and specified
commands (hereafter referred to collectively as ''DoD components'').
(b) This part does not affect status of forces or other specific
agreements that may otherwise limit implementation of its provisions in
any particular geographical area abroad.
32 CFR 42.3 Policy.
(a) The interception of wire and oral communications for law
enforcement purposes is prohibited unless conducted in accordance with
this part and applicable law.
(b) The only DoD components authorized to intercept wire and oral
communications and conducts pen register operations under this part are
the Departments of the Army, Navy, and Air Force. Within these
components, authority to use this technique shall be limited to those
offices specifically designated in writing by the head of the component.
(c) Interception of wire and oral communications is a special
technique which shall not be considered as a substitute for normal
investigative procedures and shall be authorized only in those
circumstances where it is demonstrated that the information is necessary
for a criminal investigation and cannot reasonably be obtained in some
other, less intrusive manner.
(d) Nonconsensual interception of wire and oral communications is
prohibited unless there exists probable cause to believe that:
(1) In the case of interceptions within the United States, a criminal
offense listed in 18 U.S.C. 2516(1) has been, is being, or is about to
be committed;
(2) In the case of interceptions abroad conducted pursuant to an
order issued by a military judge under 42.7(a)(1)(ii)(A), one of the
following violations of the Uniform Code of Military Justice has been,
is being, or is about to be committed by a person subject to the Uniform
code of Military Justice under article 2, 10 U.S.C. 802:
(i) The offense of murder, kidnapping, gambling, robbery, bribery,
extortion, espionage, sabotage, treason, fraud against the Government,
or dealing in narcotic drugs, marihuana, or other dangerous drugs; or
(ii) Any other offense dangerous to life, limb, or property, and
punishable by death or confinement for 1 year or more; or
(iii) Any conspiracy to commit any of the foregoing offenses.
(3) In the case of other interceptions abroad, one of the following
offenses has been, is being, or is about to be committed:
(i) An offense listed in 18 U.S.C. 2516(1); or
(ii) Fraud against the Government or any other offense dangerous to
life, limb, or property and punishable under title 18 of the U.S. Code
by death or confinement for more than 1 year; or
(iii) Any conspiracy to commit any of the foregoing offenses.
(e) Consensual interceptions of wire and oral communications shall be
undertaken only when at least one of the parties to the conversation has
consented to the interception and when the investigation involves:
(1) A criminal offense punishable, under the United States Code or
Uniform Code of Military Justice, by death or confinement for 1 year or
more; or
(2) A telephone call involving obscenity, harassment, extortion,
bribery, bomb threat, or threat of bodily harm that has been made to a
person authorized to use the telephone of a subscriber-user on an
installation, building, or portion thereof, under Department of Defense
jurisdiction or control, and when the subscriber-user has also consented
to the interception.
(f) The prohibitions and restrictions of this part apply regardless
of the official use or dissemination of the intercepted information.
Any questions as to whether the use of a particular device may involve
prohibited wire or oral interception shall be submitted with supporting
facts through channels to the general counsel of the Department of
Defense for resolution.
(g) No otherwise privileged wire or oral communication intercepted in
accordance with this part shall lose its privileged character.
32 CFR 42.4 Waivers.
Waivers of the requirements enunciated in this part will be
authorized on a case-by-case basis only when directed in writing by the
Secretary of Defense. Waivers will be authorized only under the most
limited circumstances and when consistent with applicable law.
32 CFR 42.5 Responsibilities.
(a) The Department of Defense General counsel or a single designee,
shall:
(1) Determine whether to approve or deny requests for authorization
to conduct nonconsensual interceptions under this part ( 42.7(a)(1) (i)
and (ii)).
(2) Determine whether to seek Attorney General authorization for
emergency nonconsensual interceptions ( 42.7(a)(1)(iii)).
(3) In the absence of the Secretary of the military department
concerned, or a designee, determine whether to approve or deny requests
to conduct consensual interceptions ( 42.7(a)(2)(i)).
(4) Provide overall policy guidance for the implementation of this
part.
(b) The Assistant Secretary of Defense (Comptroller) (ASD(C)), or a
designee, shall:
(1) In consultation with the DoD General Counsel, act for the
Secretary of Defense to insure compliance with the provisions of this
part.
(2) Receive, process, and transmit to the DoD General Counsel all
requests from the heads of the DoD components, or their designees, for
authority to conduct nonconsensual interception of wire and oral
communications.
(3) Furnish to the Attorney General those reports required by
42.7(f)(1) and provide a copy of such reports to the DoD General
Counsel.
(4) Receive those reports required by 42.7(f)(1) and provide a copy
of such reports to the DoD General Counsel.
(c) The head of each DoD component or a designee shall insure
compliance with the policies and procedures set forth or referenced in
this part.
(d) The secretary of each military department, or a designee, shall:
(1) Determine whether to approve or deny requests to conduct
consensual interceptions ( 42.7(a)(2)(i)). This approval authority shall
not be delegated to an official below the level of assistant secretary
or assistant to the secretary of the military department.
(2) Review requests for nonconsensual interception of wire or oral
communications ( 42.7(a)(1)).
(3) Designate a control point of contact and so advise the DoD
General Counsel and the ASD(C) for:
(i) Interception activities and related applications covered by this
part.
(ii) Compilation of reports and forwarding other submissions to the
ASD(C) as required by the provisions of this part.
(iii) Maintaining a file of information regarding all interceptions
of wire and oral communications by any element of the Department.
(4) Furnish to the ASD(C) the reports required by 42.7(f)(2).
(e) The judge advocate general of each military department shall
assign military judges, certified in accordance with the provisions of
article 26(b) of the Uniform Code of Military Justice, 10 U.S.C.
826(b):
(1) To receive applications for intercept authorization orders and to
determine whether to issue such orders in accordance with
42.7(a)(1)(ii)(A). The authorization of such military judges to issue
intercept authorization orders shall be limited to interceptions
occurring abroad and targeted against persons subject to the Uniform
Code of Military Justice.
(2) To receive applications to conduct pen register operations and to
issue orders authorizing such operations in accordance with 42.7(b)(1).
The authority of such military judges to issue orders authorizing pen
register operations shall be limited to operations conducted on a
military installation and targeted against persons subject to the
Uniform Code of Military Justice.
32 CFR 42.6 Definitions.
(a) Abroad. Outside the United States. An interception takes place
abroad when the interception device is located and operated outside the
United States and the target of the interception is located outside the
United States.
(b) Application for court order. A document containing specified
information prepared for and forwarded to a judge of the U.S. district
court or the U.S. court of appeals, or a military judge.
(c) Consensual interception. An interception of a wire or oral
communication after verbal or written consent for the interception is
given by one or more of the parties to the communication.
(d) Court order. An order issued by a judge of a U.S. district court
or a U.S. court of appeals or by a military judge authorizing a wire or
oral interception or a pen register operation.
(e) Electronic, mechanical, or other device. Any device or apparatus
that can be used to intercept a wire or oral communication other than
any telephone equipment furnished to the subscriber or user by a
communications common carrier in the ordinary course of its business and
used by the subscriber or user in the ordinary course of its business or
used by an investigative or law enforcement officer in the ordinary
course of duty (18 U.S.C. 2510(5)).
(f) Interception. The aural acquisition of the contents of any wire
or oral communication through the use of any electronic, mechanical, or
other device (18 U.S.C. 2510(4)). The term ''contents'' includes any
information concerning the identity of the parties to such communication
or the existence, substance, purport, or meaning of that communication
(18 U.S.C. 2510(8)).
(g) Oral communication. Any oral communication uttered by a person
exhibiting an expectation that such communication is not subject to
interception, under circumstances justifying such expectation (18 U.S.C.
2510(2)).
(h) Pen register. A device connected to a telephone instrument or
line that permits the recording of telephone numbers dialed from a
particular telephone instrument. ''Pen register'' also includes decoder
devices used to record the numbers dialed from a touch-tone telephone.
''Pen register'' does not include equipment used to record the numbers
dialed for and duration of long-distance telephone calls when the
equipment is used to make such records for an entire telephone system
and for billing or communications management purposes.
(i) Telephone tracing. A technique or procedure to determine the
origin, by telephone number and location, of a telephone call made to a
known telephone instrument. The terms ''lock-out'' and ''trapping'' may
also be used to describe this technique.
(j) United States. For the purposes of this part, the term ''United
States'' includes the 50 States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
(k) United States person. For purposes of this part the term ''U.S.
person'' means a United States citizen, an alien admitted to the United
States for permanent residence, a corporation incorporated in the United
States, an unincorporated association organized in the United States and
substantially composed of United States citizens or aliens admitted to
the United States for permanent residence.
(l) Wire communication. Any communication made in whole or in part
through the use of facilities for the transmission of communications by
the aid of wire, cable, or other like connection between the point of
origin and the point of reception furnished or operated by any person
engaged as a common carrier in providing or operating such facilities
for the transmission of interstate or foreign communications. 18 U.S.C.
2510(1).
32 CFR 42.7 Procedures, record administration and reports.
(a) Procedures governing interception of wire and oral communications
-- (1) Nonconsensual interception -- (i) Nonconsensual interception in
the United States. When an interception is deemed necessary for a
criminal investigation, the following procedures are applicable:
(A) The requesting component shall prepare and forward through
channels a ''request for authorization'' to the Assistant Secretary of
Defense (Comptroller), or an official designated by the ASD(C). This
application shall be transmitted by expeditious means and protected to
preclude unauthorized access or any danger to the officials or other
persons cooperating in the case. Each request for authorization will
contain the following information:
(1) The identity of the DoD investigative or law enforcement official
making the application;
(2) A complete description of the facts and circumstances relied upon
by the applicant to justify the intended interception, including:
(i) The particular offense that has been, is being, or is about to be
committed;
(ii) A description of the nature and location of the facilities from
which or the place where the communication is to be intercepted;
(iii) A description of the type of communication sought to be
intercepted with a statement of the relevance of that communication to
the investigation; and
(iv) The identity of the person, if known, committing the offense and
whose communications are to be intercepted;
(3) A statement as to whether other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous;
(4) An identification of the type of equipment to be used to make the
interception;
(5) A statement of the period of time for which the interception is
required to be maintained. If the nature of the investigation is such
that the interception will not terminate automatically when the
described type of communication has been first obtained, a description
of the facts establishing probable cause to believe that additional
communications of the same type will occur thereafter;
(6) The procedures to minimize the acquisition, retention, and
dissemination of information unrelated to the purpose of the
interception;
(7) A complete statement of the facts concerning each previous
application for approval of interceptions of wire or oral communications
known to the applicant and involving any of the same persons, facilities
or places specified in the application and the action taken thereon;
and
(8) When the application is for an extension of an order, a statement
setting forth the results thus far obtained from the interception, or an
explanation of the failure to obtain such results.
(B) The ASD(C), or an official designated by the ASD(C), will
recommend to the DoD General Counsel that the request be approved or
disapproved. Approval or disapproval of all requests for authorization
will be made in writing by the DoD General Counsel, or a single
designee.
(C) If the request is approved by the DoD General Counsel, the
official making the request will coordinate directly with an attorney
from the Department of Justice or from a U.S. Attorney's office for
preparation of documents necessary to obtain a court order in accordance
with 18 U.S.C. 2518. These documents will be forwarded by the Department
of Justice attorney to the Attorney General, or to the designated
Assistant Attorney General, for approval in accordance with 18 U.S.C.
2516.
(D) Upon approval by the Attorney General, or the designated
Assistant Attorney General, formal application for a court order will be
made by the appropriate attorney from the Department of Justice,
assisted by the appropriate military lawyer.
(ii) Nonconsensual interceptions abroad. Unless otherwise authorized
by direction of the President or the Attorney General, the following
procedures are applicable to interceptions for law enforement purposes
when the interception takes place abroad and when a DoD component, or
members thereof, conduct or participate in the interception; or when
the interception takes place abroad, is targeted against a U.S. person,
and is conducted pursuant to a request by a DoD component:
(A) When the target of the interception is a person subject to the
Uniform Code of Military Justice under Article 2, U.S.C. 802.
(1) The request for authorization shall include the information
required by paragraph (a)(1)(i)(A) of this section, and shall be
forwarded through channels to the Assistant Secretary of Defense
(Comptroller), or the ASD(C)'s, designee. The ASD(C), or a designee,
shall recommend to the DoD General Counsel that the request be approved
or disapproved. Approval or disapproval of all Requests for
Authorization shall be made in writing by the DoD General Counsel, or a
single designee.
(2) Upon written approval of the DoD General Counsel, the DoD
investigative or law enforcement officer shall prepare a formal
application for a court order in accordance with the procedures of 18
U.S.C. 2518(1). The application shall be submitted to a military judge
assigned to consider such applications pursuant to 42.5(e).
(3) Only military judges assigned by the Judge Advocate General of
their service to receive applications for intercept authorization orders
shall have the authority to issue such orders. The authority of
military judges to issue intercept authorization orders shall be limited
to interceptions conducted abroad and targeted against persons subject
to the Uniform Code of Military Justice.
(i) A military judge shall be ineligible to issue an order
authorizing an interception if, at the time of application, the judge
(A) is involved in any investigation under Article 32 of the Uniform
Code of Military Justice, 10 U.S.C. 832; or (B) is engaged in any other
investigative or prosecutorial function in connection with any case; or
if the judge has previously been involved in any investigative or
prosecutorial activities in connection with the case for which the
intercept authorization order is sought.
(ii) No military judge who has issued an order authorizing
interceptions may act as the accuser, be a witness for the prosecution,
or participate in any investigative or prosecutorial activities in the
case for which the order was issued. A military judge who has issued an
order authorizing interceptions is not disqualified from presiding over
the trial in the same case.
(iii) A military judge otherwise qualified under
42.7(a)(1)(ii)(C)(i) and (ii) enclosure shall not be disqualified from
issuing orders authorizing interceptions because the judge is a member
for a service different from that of the target of the interception or
from that of the investigative or law enforcement officers applying for
the order.
(4) The military judge may enter an ex parte order, as requested or
as modified, authorizing or approving an interception of wire or oral
communications if the judge determines on the basis of the facts
submitted by the applicant that:
(i) There is probable cause to believe that a person subject to the
Uniform Code of Military Justice is committing, has committed, or is
about to commit a particular offense enumerated in 42.3(d)(2);
(ii) There is probable cause to believe that particular
communications concerning that offense will be obtained through such
interception;
(iii) Normal investigative procedures have been tried and have failed
or reasonably appear to be unlikely to succeed if tried or to be too
dangerous;
(iv) There is probable cause to believe that the facilities from
which, or the place where, the wire or oral communications are to be
intercepted are being used, or are about to be used, in connection with
the commission of such offense, or are leased to, listed in the name of,
or commonly used by such person; and
(v) The interception will not violate the relevant status of forces
agreement or the applicable domestic law of the host nation.
(5) Each order authorizing an interception shall specify:
(i) The identity of the person, if known, whose communications are to
be intercepted;
(ii) The nature and location of the communications facilities as to
which, or the place where, authority to intercept is granted;
(iii) A particular description of the type of communication sought to
be intercepted, and a statement of the particular offense to which it
relates;
(iv) The identity of the agency authorized to intercept the
communications, and of the person authorizing the application; and
(v) The period of time during which such interception is authorized,
including a statement as to whether the interception shall terminate
automatically when the described communication has been first obtained.
(6) Every order and extension thereof shall contain a provision that
the authorization to intercept shall be executed as soon as practicable,
shall be conducted in such a way as to minimize the interception of
communications not otherwise subject to interception under this part,
and shall be terminated upon attainment of the authorized objective.
(7) No order entered by a military judge may authorize an
interception for any period longer than is necessary to achieve the
objective of the authorization, nor in any event longer than 60 days.
Extensions of an order may be granted, but only upon application for an
extension made in accordance with the procedures of 18 U.S.C. 2518(1),
and after the military judge makes the findings required by paragraph
(a)(1)(ii)(A)(4) of this section. The period of extension shall be no
longer than is necessary to achieve the purpose for which it was granted
and in no event for longer than 60 days.
(8) The contents of communications intercepted pursuant to an order
issued by a military judge shall, if possible, be recorded on tape or
wire or other comparable device. The recording of the contents of such
communications shall be done in such a way as will protect the recording
from editing or other alterations. Custody of the recording shall be
wherever required by the regulations promulgated under paragraph (e)(1)
of this section and it shall not be destroyed except pursuant to
paragraph (e)(4) of this section.
(9) The contents of a communication intercepted abroad, or evidence
derived therefrom, shall be inadmissible in any court-martial
proceeding, in any proceeding under Article 15 of the Uniform Code of
Military Justice, 10 U.S.C. 815, or in any other proceeding if the:
(i) Communication was intercepted in violation of this part or
applicable law;
(ii) Order of authorization under which it was intercepted is
insufficient on its face; or
(iii) Interception was not made in conformity with the order of
authorization.
(B) When the target of an interception conducted abroad is a person
who is not subject to the Uniform Code of Military Justice:
(1) The request for authorization shall be prepared and forwarded for
approval in accordance with the procedures in paragraph (a)(1)(i) (A)
and (B) of this section.
(2) The DoD General Counsel shall determine whether to approve the
request and what further approval is required by law to conduct the
interception.
(iii) Emergency nonconsensual interceptions in the United States and
abroad. If, in the judgment of the head of the DoD component concerned,
or a designee, the emergency need for a nonconsensual interception
precludes obtaining the advance written approval and court order
required by paragraph (a)(1) (i) and (ii) of this section, the component
head or designee shall notify the DoD General Counsel who shall
determine whether to seek the authorization of the Attorney General for
an emergency nonconsensual interception in accordance with the
procedures of 18 U.S.C. 2518(7).
(iv) Time limits. Nonconsensual interceptions within the United
States may be approved for a period not to exceed 30 days.
Nonconsensual interceptions outside the United States may be approved
for a period not to exceed 60 days. Renewal requests for specified
periods of not more than 30 days each (60 days for interceptions outside
the United States), may be submitted to the approving authority for
consideration. The interception in all instances shall be terminated as
soon as the desired information is obtained, or when the interception
proves to be nonproductive.
(2) Consensual interceptions. (i) The following procedures are
applicable to all consensual interceptions of oral or wire
communications:
(A) When one of the parties to the conversation consents to an
intended interception of a communication, the DoD investigative or law
enforcement official shall prepare a request containing the following
information:
(1) A description of the facts and circumstances requiring the
intended interception, the means by which it would be conducted, the
place in which it would be conducted, and its expected duration;
(2) The names of all the persons whose conversations are expected to
be intercepted and their roles in the crime being investigated. When
the name of the nonconsenting party or parties is not known at the time
the request is made, the official making the request shall supply such
information within 30 days after termination of the interception. If
such information is not known at the end of this period, it shall be
supplied whenever it is later discovered;
(3) A statement that in the judgment of the person making the request
the interception is warranted in the interest of effective law
enforcement.
(B) An application for a court interception order is not necessary in
this situation. Written approval of the request shall be made by the
Secretary of a military department, or a designee, or, in their absence,
the DoD General Counsel. This approval authority shall not be delegated
to an official below the level of Assistant Secretary or Assistant to
the Secretary of a military department.
(C) The Secretaries of the military departments shall designate an
official to act upon telephonic requests when emergency needs preclude
advance written approval. A written record of such requests shall be
made.
(ii) The following restrictions are applicable to all consensual
interceptions of oral or wire communications:
(A) Within the United States, approval shall be granted for a period
of no more than 30 days. Abroad, approval may be granted for 60 days.
Renewal requests for specified periods of not more than 30 days each (60
days for interception outside the United States) may be submitted to the
approving authority for consideration. The interception in all
instances shall be terminated as soon as the desired information is
obtained, or when the interception proves to be nonproductive.
(B) The authorization for consensual interception of communications
shall define clearly the manner in which the interception is to be
accomplished. A ''consensual interception'' shall not involve the
installation of equipment in violation of the constitutionally protected
rights of any nonconsenting person whose communications will be
intercepted.
(b) Procedures governing the use of pen registers and similar devices
or techniques. The procedures of this section apply to the use of pen
registers, touch-tone telephone decoders, and similar devices. Unless
otherwise authorized by direction of the President or the Attorney
General, pen register and similar operations shall be conducted only
upon probable cause and pursuant to a court order.
(1) Operations conducted on a military installation and targeted
against persons subject to the Uniform Code of Military Justice. Except
as provided in 42.7(b)(3), when a pen register operation is conducted
on a military installation, in the United States or abroad, and when the
target of the operation is a person subject to the Uniform Code of
Military Justice, the following procedures apply:
(i) The application for a court order authorizing the operation shall
be made in writing upon oath or affirmation and shall be submitted to a
military judge assigned by the Judge Advocates General, pursuant to
paragraph (f)(5) of this section, to receive such applications. An
application shall include the following information:
(A) The identity of the DoD investigative or law enforcement officer
making the application;
(B) A complete statement of the facts and circumstances relied upon
by the application to justify the applicant's belief that there exists
probable cause to believe that the operation will produce evidence of a
crime, including a description of the particular offense involved, a
description of the nature and location of the facilities from which the
intercepted information originates, and the identity of the person, if
known, who has committed, is about to commit, or is committing the
offense and who is the target of the operation;
(C) A statement of the period of time for which the operation is
required to be maintained.
(ii) Subject to the limitations of paragraph (a)(1)(ii)(C) (i), (ii),
and (iii) of this section, a military judge assigned to receive
applications for orders authorizing operations covered by this
subsection may enter an order authorizing the operation upon finding
that the target of the operation is a person subject to the Uniform Code
of Military Justice, that the operation will be conducted on a military
installation, and that there exists probable cause to believe that the
operation will produce evidence of a crime. Each order shall specify
the:
(A) Identity of the person, if known, who is the target of the
operation;
(B) Location of the facilities from which the intercepted information
originates and of the facilities on which the operation will take place;
(C) Period of time during which such operation is authorized.
(iii) When the application is for an operation conducted abroad, the
military judge may not authorize the operation if it would violate the
relevant Status of Forces Agreement or the applicable domestic law of
the host nation.
(2) Other pen register operations. (i) When the target of a pen
register operation abroad is a person who is not subject to the Uniform
Code of Military Justice:
(A) The application for authority to conduct a pen register operation
shall include the information in paragraph (b)(1)(i) of this section and
shall be forwarded to the DoD General Counsel.
(B) The DoD General Counsel shall determine whether to approve the
request and what further approval is required by law to conduct the pen
register operation.
(ii) Except as provided in paragraph (b)(3) of this section, all
other pen register and similar operations in the United States shall be
conducted pursuant to a search warrant (or other judicial order
authorizing the operation) issued by a judge of competent jurisdiction.
(3) Pen register operations which include nonconsensual interceptions
of wire communications. When an operation under this section is to be
conducted in conjunction with a nonconsensual interception of a wire
communication under 42.7(a)(1), procedures of 42.7(a)(1) shall apply
to the entire operation.
(c) Procedures governing telephone tracing. When prior consent of
one or more parties to a telephone tracing operation has been obtained,
the use of telephone tracing equipment and techniques shall be
authorized only after coordination with appropriate judge advocate
personnel or other component legal counsel. The local military facility
commander may approve consensual telephone tracing operations on
military facilities. For use outside military jurisdiction, the local
military commanders, in coordination with judge advocate personnel,
shall coordinate with local civilian or host country authorities when
appropriate. In all cases, use of this technique must comply with the
provisions of DoD directive 5200.27.1
(d) Interception equipment -- (1) Control of interception equipment.
(i) DoD Components other than the military departments are not
authorized to procure or maintain equipment primarily useful for the
interception of wire and oral communications described in this part.
The heads of military departments shall establish controls to insure
that only the minimum quantity of interception equipment required to
accomplish assigned missions is procured and retained in inventories.
(ii) Interception equipment shall be safeguarded to prevent
unauthorized access or use, with appropriate inventory records to
account for all equipment at all times. Storage shall be centralized to
the maximum extent possible consistent with operational requirements.
When equipment is withdrawn from storage a record shall be made as to
the times of withdrawal and of its return to storage. Equipment should
be returned to storage when not in actual use, except to the extent that
returning the equipment would interfere with its proper utilization.
The individual to whom the equipment is assigned shall account fully, in
a written report, for the use made of the equipment during the time it
was removed from storage. Copies of the completed inventories of
equipment, the times of withdrawal and return and the written reports of
the agents specifying the uses made of the equipment shall be retained
for at least 10 years.
(2) Disposal of interception equipment. (i) Federal law prohibits
the sale or possession of any device by any person who knows or has
reason to know that ''the design of such device renders it primarily
useful for the purpose of the surreptitious interception of wire or oral
communications * * *.'' Accordingly, disposal outside the Government of
such interception equipment is prohibited.
(ii) If there is any question as to what purpose an item of equipment
is primarily useful for, then the officials involved should, in the
exercise of due caution, prohibit its sale pending referral to the DoD
General Counsel for a determination as to the proper classification of
such devices under the law.
(e) Records administration -- (1) General. All recordings and
records of information obtained through interception activities
conducted under the provisions of this part shall be safeguarded to
preclude unauthorized access, theft, or use. Both the interest of the
Government and the rights of private individuals involved shall be
considered in the development of safeguarding procedures. The
Secretaries of the military departments shall promulgate regulations
specifying storage and access requirements for applications, orders,
recordings, and other records of information obtained through
interception activities. These regulations shall include provisions for
storage and access while the case is active and after the case has
become inactive and the records have been transferred to a centralized
facility. Copies of all issuances and revisions shall be provided to
the DoD General Counsel and the ASD(C) as promulgated.
(2) Indexing -- (i) Interceptions. The records of consensual and
nonconsensual interceptions shall be prepared and maintained to provide
for centralized, readily accessible records or indices that include the
following:
(A) Names, citizenship, and other available identifying data for each
reasonably identifiable person intercepted (intentionally or otherwise),
whether a case subject or not. If available, the social security
account number and the date and place of birth of the individuals
intercepted and identified;
(B) The telephone numbers of radio telephone call signs involved in
the interception;
(C) The case number or other identifier for the interception;
(D) The address of the location of the interception;
(E) The inclusive dates of the interception.
(ii) Denied interception applications. Records of all applications
submitted to and disapproved by a Federal or military judge for
authorization to conduct a nonconsensual interception of a wire or oral
communication shall be prepared and maintained in a separate,
centralized index which shall include the following information:
(A) Names and other available identifying data for each reasonably
identifiable target of the interception applied for;
(B) The telephone numbers or radio telephone call signs involved in
the application;
(C) The address of the location of the interception applied for;
(D) The case number or other identifier for the application; and
(E) A statement of the other facts concerning the application and the
reason that the application was refused.
(3) Dissemination controls. (i) The index and records maintained
pursuant to paragraph (e)(2)(ii) of this section, shall be used only as
required to satisfy the requirements of 18 U.S.C. 2518(1)(e), paragraph
(a)(1)(i)(A)(7), (a)(1)(ii) (A) and (B) (statement of prior
applications) and (f) (1) and (2) of this section.
(ii) In all cases, access to information obtained by interception
activities conducted under the provisions of this part shall be
restricted to those individuals having a defined need-to-know clearly
related to the performance of their duties.
(iii) The information may be disseminated outside the Department of
Defense only when:
(A) Required for the purposes described in 18 U.S.C. 2517;
(B) Required by law (including the Privacy Act of 1974, as amended,
and the Freedom of Information Act of 1967, as amended, or order of a
Federal court;
(C) Requested by a committee of the Congress and approved for release
by the DoD General Counsel; or
(D) Required by the provisions of Status of Forces or other
international agreements.
(iv) Secretaries of the military departments shall promulgate
regulations, policies and procedural controls and designate responsible
officials for both internal and external dissemination of the
information described above. Procedures shall include sufficient
records reflecting dissemination of this information. Copies of all
issuances and revisions for these purposes shall be provided the DoD
General Counsel and the ASD(C) as promulgated.
(4) Retention and disposition of records. Records and recordings of
interception shall be retained for 10 years after termination of the
interception and then disposed of in accordance with component records
retirement procedures. If the interception was conducted in the United
States under the provisions of 18 U.S.C. 2516, the records may be
destroyed only pursuant to order of the court involved.
(f) Reports -- (1) By the Assistant Secretary of Defense
(Comptroller). The ASD(C), or a designee, shall submit the following
reports to the Attorney General:
(i) Quarterly. For the quarters ending in March, June, September,
and December, to be submitted by the end of each following month, a
report of all consensual interceptions of oral communications by DoD
components in the United States and abroad. This report shall specify
for each interception the means by which the interception was conducted,
the place in which it was conducted, its duration, and the use made of
the information acquired. This report shall also contain the names and
positions of persons authorized to approve consensual interceptions of
oral communications, including those persons authorized to approve
emergency, telephonic requests.
(ii) Annually. (A) By January 31, a report of all nonconsensual
interceptions of wire or oral communications conducted for investigative
or law enforcement purposes abroad by DoD components during the
preceding year and of all unsuccessful applications for orders to
conduct such interceptions during the preceding year. This report shall
contain the information required in 18 U.S.C. 2519(2).
(B) By July 31, an inventory of all DoD electronic or mechanical
equipment primarily useful for interception of wire or oral
communications.
(2) By the Secretaries of the military departments. The Secretaries
of the military departments, or their designees, shall submit the
following reports to the ASD(C):
(i) Quarterly. For the quarters ending in March, June, September,
and December, to be received by the 15th day of each following month, a
report of all interceptions of wire and oral communications, pen
register operations, and unsuccessful applications for nonconsensual
interceptions conducted by the military departments in the United States
and abroad. This report shall include the information listed in 42.8.
(ii) Annually. By July 15, a complete inventory of all devices in
the DoD component that are primarily useful for interception of wire or
oral communications or for operations covered by paragraph (b) of this
section. This report shall include a statement that the amount of
equipment is being maintained at the lowest level consistent with
operational requirements.
1Copies may be obtained, if needed, from the U.S. Naval Publications
and Forms Center, 5801 Tabor Ave., Philadelphia, Pa. 19120, attention
code 301.
32 CFR 42.8 Information to be included in reports of interceptions and
pen register operations.
(a) Consensual interceptions. (1) Identity of DoD component making
this report.
(2) Indicate whether the report is a wire or oral interception
operation and whether the interception included the use of a pen
register. (If more than one operation is authorized, a separate entry
should be made for each.)
(3) Purpose or objective of operation. Specify offense being
investigated and included a brief synopsis of the case.
(4) Investigative case number or identifier for the operation.
(5) Location of the operation.
(6) Type of equipment used and method of installation.
(7) Identity of the performing organizational unit. (Indicate if the
interception was conducted for a DoD component other than the component
making the report or for a non-DoD activity.)
(8) Identity of DoD investigative or law enforcement officer who
requested or applied for the interception.
(9) Approval authority and date of approval.
(10) Length and dates for which operation was approved.
(11) Actual date operation was initiated, and date terminated.
(12) If operation was extended, state name of authority approving
extension and dates to which extended.
(13) State where tapes, transcripts, and notes are stored.
(14) Evaluation of results of operations, including the use made of
the information in subsequent investigation or prosecution.
(15) The names and positions of persons authorized to approve
consensual interceptions, including those persons authorized to approve
emergency, telephonic requests.
(16) Indicate whether the interception took place in the United
States or abroad.
(b) Nonconsensual interceptions in the United States. In addition to
items in 42.8(a) (1)-(14), include the following:
(1) Identity of court and judge who issued the intercept
authorization order and date of order.
(2) Nature and frequency of incriminating communications intercepted
(specify dates and approximate duration of each communication).
(3) Nature and frequency of other communications intercepted.
(4) Number of persons whose communications were intercepted.
Indicate number of U.S. persons known to have been intercepted and
whether such persons were targets or incidentals.
(c) Nonconsensual interceptions abroad. In addition to items in
paragraphs (a) (1)-(14) and (b) (1)-(4) of this section, include the
following:
(1) Number of persons located in the United States whose
communications were intercepted.
(2) In the report for the last quarter of each calendar year,
include:
(i) The number of arrests and trials resulting from each interception
conducted during the year. Indicate the offense for each interception.
(ii) The number of convictions resulting from the interceptions
conducted during the year and the offenses for which convictions were
obtained.
(d) Pen register operations. Pen register operations conducted in
conjunction with nonconsensual interceptions should be included in 42.8
(a) and (b). For all other pen register operations include items
(1)-(15) from 42.8(a), items (1)-(4) from 42.8(b), and indicate
whether the operation was conducted in the United States or abroad.
(e) Unsuccessful applications for nonconsensual interception
authorization orders. (1) Identity of applying organizational unit.
(Indicate if the application was on behalf of a DoD component other than
the component making the report or on behalf of a non-DoD activity.)
(2) Investigative case number or identifier for the application.
(3) Identity of applying DoD investigative or law enforcement
officer.
(4) Approval authority and date of approval of DoD request.
(5) Identity of judge who denied the application and date of denial.
(6) Offense specified in the application.
(7) Whether the application was for a wire or oral interception
order, and whether the application was for an interception in the United
States or abroad.
(8) Purpose or object of the interception applied for. Include a
brief synopsis of the case.
(9) If the application was for an extension, indicate the dates,
duration, and results of the previous interception.
(10) Specific location of the interception applied for.
(11) Number of U.S. persons named as targets in the application.
(12) Reason why the application was denied.
32 CFR 42.8 PART 43 -- PERSONAL COMMERCIAL SOLICITATION ON DoD
INSTALLATIONS
Sec.
43.1 Reissuance and purpose.
43.2 Applicability and scope.
43.3 Definitions.
43.4 Policy.
43.5 Responsibilities.
43.6 Procedures.
Appendix A to Part 43 -- Life Insurance Products and Securities
Appendix B to Part 43 -- The Overseas Life Insurance Accreditation
Program
Authority: 5 U.S.C. 301.
Source: 51 FR 7552, Mar. 5, 1986, unless otherwise noted.
32 CFR 43.1 Reissuance and purpose.
This part:
(a) Consolidates into a single document Parts 43 and 276 of this
title and update DoD policies and procedures governing personal
commercial solicitation and insurance sales on DoD installations.
(b) Continues the established annual DoD accreditation requirements
for life insurance companies operating in overseas areas where neither
Federal nor state consumer protection regulations apply.
32 CFR 43.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense
(OSD), the Military Departments, the Organization of the Joint Chiefs of
Staff (OJCS), the Unified Commands, and the Defense Agencies (hereafter
referred to collectively as ''DoD Components''). The term ''Military
Services,'' as used herein, refers to the Army, Navy, Air Force, Marine
Corps, and Coast Guard.
(b) The provisions of this part do not apply to services furnished by
commercial companies, such as deliveries of milk, laundry, and related
residence services when such services are authorized by the DoD
installation commander.
(c) Nothing in this part should be construed to preclude private,
non-profit, tax-exempt organizations composed of active and retired
members of the Military Services from holding membership meetings which
do not involve commercial solicitation on DoD installations. Attendance
at these meetings shall be voluntary and the time and place of such
meetings are subject to the discretion of the installation commander or
his or her designee.
(51 FR 7552, Mar. 5, 1986, as amended at 52 FR 25008, July 2, 1987)
32 CFR 43.3 Definitions.
Agent. An individual who receives remuneration as a salesperson or
whose remuneration is dependent on volume of sales of a product or
products.
Association. Any organization, whether or not the word
''Association'' appears in its title, composed of and serving
exclusively members of the Military Services on active duty, in a
Reserve status, in a retired status, and their dependents, which
officers its members life insurance coverage, either as part of the
membership dues, or as a separately purchased plan made available
through an insurance carrier or the association as a self-insurer, or a
combination of both.
DoD installation. Any Federally owned, leased, or operated base,
reservation, post, camp, building, or other facility to which DoD
personnel are assigned for duty, including barracks, transient housing,
and family quarters.
DoD personnel. All active duty officers (commissioned and warrant)
and enlisted members of the Military Services and all civilian
employees, including nonappropriated fund employees and special
Government employees of all offices, agencies, and departments carrying
on functions on a Defense installation.
General agent. A person who has a legal contract to represent a
company solely and exclusively.
Insurance carrier. An insurance company issuing insurance through an
association or reinsuring or coinsuring such insurance.
Insurance product. A policy, annuity, or certificate of insurance
issued by an insurer or evidence of insurance coverage issued by a
self-insured association.
Insurer. Any company or association engaged in the business of
selling insurance policies to DoD personnel.
Normal home enterprises. Sales or services which are customarily
conducted in a domestic setting and do not compete with an
installation's officially sanctioned commerce.
Securities. Mutual funds, stocks, bonds, or any product registered
with the Securities and Exchange Commission except for any insurance or
annuity product issued by a corporation subject to supervision by state
insurance authorities.
Solicitation. The conduct of any private business, including the
offering and sale of insurance on a military installation. Solicitation
on installations is a privilege as distinguished from a right, and its
control is a responsibility vested in the DoD installation commander.
32 CFR 43.4 Policy.
It is the policy of the Department of Defense to safeguard and
promote the welfare of DoD personnel as consumers by setting forth a
uniform approach to the conduct of all personal commercial solicitation
and sales to them by dealers and their agents.
32 CFR 43.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall be responsible for developing policies and
procedures governing personal commercial solicitation activities
conducted on DoD installations.
(b) The Heads of DoD Components, or their designees, shall assure
implementation of this Directive and compliance with its provisions.
32 CFR 43.6 Procedures.
(a) General. (1) No person has authority to enter upon a DoD
installation and transact personal commercial solicitation as a matter
of rights. Personal commercial solicitation will be permitted only if
the following requirements are met:
(i) The solicitor is duly licensed under applicable Federal, state,
or municipal laws and has complied with installation regulations in
accordance with paragraph (c) of this section.
(ii) Personal commercial solicitation is permitted by the local
installation commander.
(iii) A specific appointment has been made with the individual
concerned and conducted in family quarters or in other areas designated
by the installation commander.
(2) Those seeking to transact personal commercial solicitation on
overseas installations shall be required to observe, in addition to the
above, the applicable laws of the host country and, upon demand, present
documentary evidence to the installation commander, or designee, that
the company they represent, and its agents, meet the licensing
requirements of the host country.
(3) Organizations involved in sales are permitted to display
literature on DoD installations in locations selected by the commander.
(b) Life insurance products and securities. (1) Life insurance
products and securities offered and sold to DoD personnel must meet the
prerequisites described in Appendix A.
(2) Insurers and their agents are authorized to solicit on DoD
installations provided they are licensed under the insurance laws of the
state in which the installation is located. In overseas areas, DoD
Components shall limit this authorization to those insurers accredited
under the provisions of Appendix B.
(3) The conduct of all insurance business on DoD installations shall
be by specific appointment. When establishing the appointment,
insurance agents must identify themselves to the prospective purchaser
as an agent for a specific company.
(4) Installation commanders shall designate areas where interviews by
appointment may be conducted. Invitations to conduct interviews shall
be extended to all agents on an equitable basis. Where space and other
considerations limit the number of agents using the interviewing area,
the installation commander may develop and publish local policy
consistent with this concept.
(5) Installation commanders shall make disinterested third-party
counseling available to DoD personnel desiring counseling.
(6) In addition to the solicitation prohibitions contained in
paragraph (d) of this section, DoD Components shall prohibit:
(i) DoD personnel from representing any insurer, or dealing directly
or indirectly with any insurer or any recognized representative of any
insurer on the installation, as an agent or in any official or business
capacity with or without compensation.
(ii) The use of an agent as a participant in any Military
Services-sponsored insurance education or orientation program.
(iii) The designation of any agent or the use by any agent of titles
such as ''Battalion Insurance Counselor,'' ''Unit Insurance Advisor,''
''Servicemen's Group Life Insurance Conversion Consultant,'' etc.
(iv) The assignment of desk space for interviews for other than a
specific prearranged appointment. During such appointment, the agent
shall not be permitted to display desk or other signs announcing his or
her name or company affiliation.
(v) The use of the ''Daily Bulletin'' or any other notice, official
or unofficial, announcing the presence of an agent and his or her
availability.
(c) Supervision of on-base commercial activities. (1) All pertinent
installation regulations shall be posted in a place easily accessible to
those conducting personal commercial solicitation activities on the
installation.
(2) When practicable, as determined by the installation commander, a
copy of the applicable installation regulations shall be given to those
conducting on-base commercial activities with the warning that any
infractions of the regulations will result in the withdrawal of
solicitation privileges.
(d) Prohibited practices. The following commercial solicitation
practices shall be prohibited on all DoD installations:
(1) Solicitation of recruits, trainees, and transient personnel in a
''mass'' or ''captive'' audience.
(2) Making appointments with or soliciting military personnel who are
in an ''on-duty'' status.
(3) Soliciting without appointment in areas utilized for the housing
or processing of transient personnel, in barracks areas used as
quarters, in unit areas, in family quarters areas, and in areas provided
by installation commanders for interviews by appointment.
(4) Use of official identification cards by retired or reserve
members of the Military Services to gain access to DoD installations for
the purpose of soliciting.
(5) Procuring, or attempting to procure, or supplying roster listings
of DoD personnel for purposes of commercial solicitation, except for
releases granted in accordance with DoD Directive 5400.7.
(6) Offering unfair, improper, and deceptive inducements to purchase
or trade.
(7) Using rebates to facilitate transactions or to eliminate
competition.
(8) Using manipulative, deceptive, or fraudulent devices, schemes, or
artifices, including misleading advertising and sales literature.
(9) Using oral or written representations to suggest or give the
appearance that the Department of Defense sponsors or endorses any
particular company, its agents, or the goods, services, and commodities
it sells.
(10) Full-time DoD personnel making personal commercial solicitations
or sales to DoD personnel who are junior in rank or grade as provided in
DoD Directive 5500.7 /1/ .
(11) Entering into any unauthorized or restricted area.
(12) Using any portion of installation facilities, including
quarters, as a showroom or store for the sale of goods or services,
except as specifically authorized by DoD Directives 1330.9 /2/ and
1330.17 /3/ and DoD Instructions 1330.18 /4/ and 1000.15 /5/ . This is
not intended to preclude normal home enterprises, providing applicable
state and local laws are complied with.
(13) Soliciting door to door.
(14) Advertising addresses or telephone numbers of commercial sales
activities conducted on the installation, except for authorized
activities conducted by members of military families residing in family
housing.
(e) Denial and revocation of on-base solicitation. (1) The
installation commander shall deny or revoke permission to a company and
its agents to conduct commercial activities on the base if such action
is in the best interests of the command. The grounds for taking this
action shall include, but not be limited to, the following:
(i) Failure to meet the licensing and other regulatory requirements
prescribed in paragraphs (a) and (b) of this section.
(ii) Commission of any of the practices prohibited in paragraphs
(b)(6) and (d) of this section.
(iii) Substantiated complaints or adverse reports regarding quality
of goods, services, and commodities and the manner in which they are
offered for sale.
(iv) Knowing and willful violations of Pub. L. 90-321.
(v) Personal misconduct by a company's agent or representative while
on the installation.
(vi) The possession of or any attempt to obtain supplies of allotment
forms used by the Military Departments, or possession or use of
facsimiles thereof.
(vii) Failure to incorporate and abide by the Standards of Fairness
policies contained in DoD Directive 1344.9. /6/
(2) In withdrawing solicitation privileges, the commander shall
determine whether to limit it to the agent alone or extend it to the
company the agent represents. This decision shall be communicated to
the agent and to the company the agent represents and shall be based on
the circumstances of the particular case, including, among others, the
nature of the violations, frequency of violations, the extent to which
other agents of the company have engaged in such practices, and any
other matters tending to show the company's culpability.
(i) Upon withdrawing solicitation privileges, the commander shall
promptly inform the agent and the company the agent represents orally or
in writing.
(ii) If the grounds for the action involve the eligibility of the
agent or company to hold a state license or to meet other regulatory
requirements, the appropriate authorities will be notified.
(iii) The commander shall afford the individual or company an
opportunity to show cause why the action should not be taken. To ''show
cause'' means an opportunity must be given for the grieved party to
present facts on his or her behalf on an informal basis for the
consideration of the installation commander.
(iv) If warranted, the commander shall recommend to the Military
Department concerned that the action taken be extended to other DoD
installations. If so approved, and when appropriate, the Assistant
Secretary of Defense (Force Management and Personnel) (ASD(FM&P)),
following consultation with the Military Department concerned, shall
order the action extended to other Military Departments.
(v) All denials or withdrawals of privileges will be for a set period
of time, at the end of which the individual may reapply for permission
to solicit through the Military Department originally imposing the
restriction. Denial or withdrawal of soliciting privileges may or may
not be continued, as warranted.
(vi) When such denials or withdrawals are lifted, the Office of the
ASD(FM&P) shall be notified for parallel action if the same denial or
withdrawal has been extended to other Military Departments.
(vii) The commanding officer may, if circumstances dictate, make
immediate suspensions of solicitation privileges for a period of 30 days
while an investigation is conducted. Exceptions to this amount of time
must be approved by the Military Department concerned.
(3) Upon receipt of the information outlined above, the Secretaries
of the Military Departments may direct the Armed Forces Disciplinary
Control Boards in all geographical areas in which the grounds for action
have occurred to consider the charges and take appropriate action.
(f) Advertising policies. (1) The Department of Defense expects
voluntary observance of the highest business ethics both by commercial
enterprises soliciting DoD personnel through advertisements in
unofficial military publications, and by the publishers of those
publications in describing goods, services, and commodities, and the
terms of the sale (including guarantees, warranties, and the like).
(2) The advertising of credit terms shall conform to the provisions
of Pub. L. 90-321 as implemented by Regulation Z.
(g) Educational programs. (1) The Military Departments shall develop
and disseminate information and education programs for members of the
Military Services on how to conduct their personal commercial affairs,
including such subjects as the Truth-in-Lending Act, insurance,
Government benefits, savings, and budgeting. The services of
representatives of credit unions, banks, and those nonprofit military
associations (provided such associations are not underwritten by a
commercial insurance company) approved by the Military Departments may
be used for this purpose. Under no circumstances shall commercial
agents, including representatives of loan, finance, insurance or
investment companies, be used for this purpose. Educational materials
prepared or presented by outside organizations expert in this field may,
with appropriate disclaimers and permission, be adapted or used if
approved by the Military Department concerned. Presentations by
approved organizations shall only be conducted at the express request of
the installation commander.
(2) The Military Departments shall also make qualified personnel and
facilities available for individual counseling on loans and consumer
credit transactions in order to encourage thrift and financial
responsibility and promote a better understanding of the wise use of
credit, as prescribed in DoD Directive 1344.9. /7/
(3) Military members shall be encouraged to seek advice from a legal
assistance officer or their own lawyer before making a substantial loan
or credit commitment.
(4) Each Military Department shall provide advice and guidance to
military personnel who have a complaint under Pub. L. 90-321 or who
allege a criminal violation of its provisions, including referral to the
appropriate regulatory agency for processing of the complaint.
(51 FR 7552, Mar. 5, 1986, as amended at 52 FR 25008, July 2, 1987)
/1/ Copies may be obtained, if needed, from the US Naval Publications
and Forms Center 5801 Tabor Avenue, ATTN: Code 301, Philadelphia PA
19120.
2 -- 5See footnote 1 to paragraph (d)(10) of this section.
/6/ See footnote 1 to paragraph (d)(10) of this section.
/7/ See footnote 1 to 43.6(d)(10).
32 CFR 43.6 Appendix A to Part 43 -- Life Insurance Products and Securities
32 CFR 43.6 Pt. 43, App. A
1. Insurance products, other than certificates or other evidence of
insurance issued by a self-insured association, offered and sold
worldwide to personnel on DoD installations, must:
a. Comply with the insurance laws of the state or country in which
the installation is located and the procedural requirements of this
Directive.
b. Contain no restrictions by reason of military service or military
occupational specialty of the insured, unless such restrictions are
clearly indicated on the face of the contract.
c. Plainly indicate any extra premium charges imposed by reason of
military service or military occupational specialty.
d. Contain no variation in the amount of death benefit or premium
based upon the length of time the contract has been in force, unless all
such variations are clearly described therein.
2. To comply with paragraphs A.1.b., c., and d., above, an
appropriate reference stamped on the face of the contract shall draw the
attention of the policyholder to any extra premium charges and any
variations in the amount of death benefit or premium based upon the
length of time the contract has been in force.
3. Variable life insurance products may be offered provided they meet
the criteria of the appropriate insurance regulatory agency and the
Securities and Exchange Commission.
4. Premiums shall reflect only the actual premiums payable for the
life insurance product.
1. All securities must be registered with the Securities and Exchange
Commission.
2. All sales of securities must comply with existing and appropriate
Securities and Exchange Commission regulations.
3. All securities representatives must apply directly to the
commander of the installation on which they desire to solicit the sale
of securities.
4. Where the accredited insurer's policy permits, an overseas
accredited life insurance agent -- if duly qualified to engage in
security activities either as a registered representative of the
National Association of Securities Dealers or as an associate of a
broker or dealer registered with the Securities and Exchange Commission
-- may offer life insurance and securities for sale simultaneously. In
cases of commingled sales, the allotment of pay for the purchase of
securities cannot be made to the insurer.
1. Allotments of military pay for life insurance products shall be
made in accordance with DoD Directive 7330.1. /8/
2. For personnel in pay grades E-1, E-2, and E-3, at least seven days
shall elapse for counseling between the signing of a life insurance
application and the certification of an allotment. The purchaser's
commanding officer may grant a waiver of this requirement for good
cause, such as the purchaser's imminent permanent change of station.
The recent growth and general acceptability of quasimilitary
associations offering various insurance plans to military personnel are
acknowledged. Some associations are not organized within the
supervision of insurance laws of either a state or the Federal
Government. While some are organized for profit, others function as
nonprofit associations under Internal Revenue Service regulations.
Regardless of the manner in which insurance plans are offered to
members, the management of the association is responsible for complying
fully with the instructions contained herein and the spirit of this
part.
/8/ See footnote 1 to 43.6(d)(10).
32 CFR 43.6 Pt. 43, App. B
32 CFR 43.6 Appendix B to Part 43 -- The Overseas Life Insurance
Accreditation Program
1. Initial Accreditation.
a. Insurers must demonstrate continuous successful operation in the
life insurance business for a period of not less than five years on
December 31 of the year preceding the date of filing the application.
b. Insurers must be listed in Best's Life-Health Insurance Reports
and be assigned a rating of B+ (Very Good) or better for the business
year preceding the Government's fiscal year for which accreditation is
sought.
2. Reaccreditation.
a. Insurers must demonstrate continuous successful operation in the
life insurance business, as described in subsection A.1.a., above.
b. Insurers must retain a Best's rating of B+ or better, as described
in paragraph A.1.b., above.
c. Insurers must establish an agency sales force in one of the
overseas commands within two years of initial accreditation.
3. Waiver Provisions.
Waivers of the initial accreditation and reaccreditation provisions
will be considered for those insurers demonstrating substantial
compliance with the aforementioned criteria.
1. Applications Filed Annually. During the months of May and June of
each year insurers may apply for solicitation privileges for personnel
assigned to U.S. military installations in foreign areas for the fiscal
year beginning the following October 1.
2. Application Prerequisites. A letter of application, signed by the
president, vice president, or designated official of the insurance
company shall be forwarded to the Assistant Secretary of Defense (Force
Management and Personnel), Attention: Personnel Administration and
Services Directorate, ODASD(MM&PP), The Pentagon, Washington, DC
20301-4000. The letter shall contain the information set forth below,
submitted in the order listed. Where not applicable, so state.
a. The overseas commands (e.g., European, Pacific, Atlantic ,
Southern) where the company is presently soliciting, or planning to
solicit on U.S. military installations.
b. A statement that the company has complied with, or will comply
with, the applicable laws of the country or countries wherein it
proposes to solicit. ''Laws of the country'' means all natural,
provincial, city, or county laws or ordinances of any country, as
applicable.
c. A statement that the products to be offered for sale conform to
the standards prescribed in Appendix A and contain only the standard
provisions such as those prescribed by the laws of the state where the
company's headquarters are located.
d. A statement that the company shall assume full responsibility for
the acts of its agents with respect to solicitation. Sales personnel
will be limited in numbers to one general agent and no more than 50
sales personnel for each overseas area. If warranted, the number of
agents may be further limited by the overseas command concerned.
e. A statement that the company will not utilize agents who have not
been accredited by the appropriate overseas command to sell to DoD
personnel on or off its DoD installations.
f. Any explanatory or supplemental comments that will assist in
evaluating the application.
g. If the Department of Defense requires facts or statistics beyond
those normally involved in accreditation, the company shall make
separate arrangements to provide them.
h. A statement that the company's general agent and other accredited
agents are appointed in accordance with the prerequisites established in
section C., below.
3. If a company is a life insurance company subsidiary, it must be
accredited separately on its own merits.
Unified commanders shall apply the following principles:
1. An agent must possess a current state license. The overseas
commander may waive this requirement for an accredited agent
continuously residing and successfully selling life insurance in foreign
areas, who, through no fault of his or her own, due to state law (or
regulation) governing domicile requirements, or requiring that the
agent's company be licensed to do business in that state, forfeits
eligibility for a state license. The request for a waiver shall contain
the name of the state or jurisdiction which would not renew the agent's
license.
2. General agents and agents shall represent only one accredited
commercial insurance company. This requirement may be waived by the
overseas commander if multiple representation can be proven to be in the
best interest of DoD personnel.
3. An agent must have at least one year of successful life insurance
underwriting in the United States or its territories, generally within
the five years preceding the date of application, in order to be
designated as accredited and employed for overseas solicitation.
4. Appropriate overseas commanders shall exercise further agent
control procedures as deemed necessary.
5. An agent, once accredited in an overseas area, may not change
affiliation from the staff of one general agent to another and retain
accreditation, unless the previous employer certifies in writing that
the release is without justifiable prejudice. Unified commanders will
have final authority to determine justifiable prejudice. Indebtedness
of an agent to a previous employer is an example of justifiable
prejudice.
1. Accreditation by the Department of defense upon annual
applications of insurers shall be announced as soon as practicable by a
notice to each applicant and by a listing released annually in September
to the appropriate overseas commander. This approval does not
constitute DoD endorsement of the insurer. Any advertising by insurers
which suggests such endorsement is prohibited.
2. In the event accreditation is denied, specific reasons for such
findings shall be submitted to the applicant.
a. Upon receipt of notification of an unfavorable finding, the
insurer shall have 30 days from the receipt of such notification
(forwarded certified mail, return recipt requested) in which to request
reconsideration of the original decision. This request must be
accompanied by substantiating data or information in rebuttal of the
specific reasons upon which the adverse findings are based.
b. Action by the Assistant Secretary of Defense (Force Management and
Personnel) on appeal is final.
c. If the applicant is presently accredited as an insurer, up to 90
days from final action on an unfavorable finding shall be granted in
which to close out operations.
3. Upon receiving the annual letter of accreditation, each company
shall send to the applicable unified commander a verified list of agents
currently accredited for overseas solicitation. Where applicable, the
company shall also include the names of new agents for whom original
accreditation and permission to solicit on base is requested. Insurers
initially accredited will be furnished instructions by the Department of
Defense for agent accreditation procedures in overseas areas.
4. Material changes affecting the corporate status and financial
conditions of the company which may occur during the fiscal year of
accreditation must be reported as they occur.
a. The Department of Defense reserves the right to terminate
accreditation if such material changes appear to substantially affect
the financial and operational criteria described in section A., above,
on which accreditation was based.
b. Failure to report such material changes can result in termination
of accreditation regardless of how it affects the criteria.
5. If an analysis of information furnished by the company indicates
that unfavorable trends are developing which may possibly adversely
affect its future operations, the Department of Defense may, at its
option, bring such matters to the attention of the company and request a
statement as to what action, if any, is contemplated to deal with such
unfavorable trends.
32 CFR 43.6 PART 43a -- INDEBTEDNESS OF MILITARY PERSONNEL
Sec.
43a.1 Reissuance and purpose.
43a.2 Applicability and scope.
43a.3 Definitions.
43a.4 Responsibilities.
43a.5 General policies.
43a.6 Debt processing procedures.
43a.7 Abuse of the processing privilege.
43a.8 Full disclosure and standards of fairness by creditors.
43a.9 Standards of fairness.
43a.10 Certificate of Compliance.
Authority: Sec. 301, 80 Stat. 379; 5 U.S.C. 301.
Source: 44 FR 31014, May 30, 1979, unless otherwise noted.
32 CFR 43a.1 Reissuance and purpose.
This part: (a) Reissues Part 43a to update established Department of
Defense policy governing delinquent indebtedness of military members of
the Armed Forces;
(b) Sets forth procedures for processing claims of such indebtedness
against military members; and
(c) Incorporates the provisions of Pub. L. 90-321, ''Truth in
Lending Act,'' Section 125 (15 U.S.C. 1601 (1976)) and 95-109, ''Fair
Debt Collection Practices Act,'' September 20, 1977.
32 CFR 43a.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, the Defense Agencies, and the Unified and Specified
Commands (hereafter referred to as ''DoD Components''). The term
''Military Services,'' as used herein, refers to the Army, the Navy, the
Air Force, and the Marine Corps.
(b) Excluded from the provisions of this Part are claims for support
of dependents, or claims by the Federal, State, or municipal Government.
32 CFR 43a.3 Definitions.
(a) Just financial obligations. A legal debt acknowledged by the
military member in which there is no reasonable dispute as to the facts
or the law; or one reduced to judgment which conforms to 50 U.S.C. app.
501, if applicable.
(b) A proper and timely manner. A manner which under the
circumstances does not reflect discredit on the military service.
(c) Debt collector. An agency or agent solely engaged in the
collection of debts described under Pub. L. 95-109.
32 CFR 43a.4 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall establish policies and procedures governing the
assistance to be provided by military authorities to creditors of
military personnel.
(b) The Heads of DoD Components, or designees, shall:
(1) Urge military personnel to meet their just financial obligations,
since failure to do so damages their credit reputation and affects the
public image of all DoD personnel 32 CFR Parts 230, 231, and 40.
(2) Assure implementation of this part and compliance with its
provisions.
32 CFR 43a.5 General policies.
(a) Members of the Armed Forces are expected to pay their just
financial obligations in a proper and timely manner. However, DoD
Components have no legal authority, except as stated in paragraph (b) of
this section, to require members to pay a private debt or to divert any
part of their pay for its satisfaction, even though the indebtedness may
have been reduced to judgment by a civil court. The enforcement of the
private obligations of a military member is a matter for civil
authorities.
(b) Legal process instituted in civil courts to enforce judgments
against military personnel for the payment of alimony or child support
will be acted upon in accordance with the provisions of Pub. L.
93-647, as amended (42 U.S.C. 659 (1976)), and Part 7, Chapter 7,
section B of DoD Military Pay and Allowances Entitlements Manual. 1
(c) The processing of debt complaints will not be extended to those:
(1) Who have not made a bona fide effort to collect the debt directly
from the military member; (2) whose claims are patently false and
misleading; or (3) whose claims are obviously exorbitant. Claimants
desiring to contact a military member about indebtedness may obtain the
member's military address by writing to the locator service of the
Military Department concerned, and enclosing the appropriate fee for the
service, as provided under (32 CFR Part 288).
(d) Some States have enacted laws which prohibit creditors from
contacting a debtor's employer with respect to indebtedness or
communicating facts on indebtedness to an employer unless certain
conditions are met. The conditions which must be met to remove this
prohibition are generally such things as reduction of a debt to judgment
and obtaining written permission of the debtor.
(1) At DoD installations in States having such laws, the processing
of debt complaints will not be extended to those creditors who are in
violation of the State law. Commanders may advise creditors that this
rule has been established because it is the general policy of the
Military Services to comply with State law when that law does not
infringe upon significant military interests.
(2) This policy will govern even though a creditor is not licensed to
do business in the State where the debtor is located. A similar
practice will be inaugurated in any State enacting a similar law with
respect to debt collection.
(e) Under the provisions of Pub. L. 95-109, contact by a debt
collector with third parties, such as commanding officers, for the
purpose of aiding debt collection is prohibited without the prior
consent of the debtor, given directly to the debt collector, or without
a court order. Creditors are generally exempt from Pub. L. 95-109,
but only when they collect on their own behalf.
1Available through normal DoD publications channels.
32 CFR 43a.6 Debt processing procedures.
(a) It is incumbent on those submitting indebtedness complaints to
show that the disclosure requirements of Pub. L. 90-321 and Regulation
Z (12 CFR 226.3, 226.9 (1978)) have been met and that the Standards of
Fairness 43a.9 have been applied.
(b) Creditors subject to Regulation Z, and assignees claiming
thereunder, shall submit with their request for debt processing
assistance an executed copy of the Certificate of Compliance (enclosure
2), and a true copy of the general and specific disclosures provided the
military member as required by Pub. L. 90-321. Requests which do not
meet these requirements will be returned without action to the claimant.
(c) A creditor not subject to Regulation Z, such as a public utility
company (as set forth in 226.3 thereof), shall submit with the request
a certification that no interest, finance charge, or other fee is in
excess of that permitted by the law of the State in which the obligation
was incurred.
(d) A foreign-owned company having debt complaints shall submit with
its request a true copy of the terms of the debt (English translation)
and shall certify that it has subscribed to the Standards of Fairness (
43a.9).
(e) Indebtedness complaints which meet the requirements of the part
will be processed by DoD Components. ''Processed'' means that Heads of
DoD Components, or designees, shall:
(1) Review all available facts surrounding the transaction forming
the basis of the complaint, including the member's legal rights and
obligations, and any defenses or counterclaims the member may have.
(2) Advise the member that: (i) Just financial obligations are
expected to be paid in a proper and timely manner, and what the member
should do to comply with that policy; and (ii) financial and legal
counseling services are available under the provisions of (32 CFR Part
43) in resolving indebtedness.
(3) If a member acknowledges a debt as a result of creditor contact
with a DoD Component, advise the member that assistance and counseling
are available from the on-base military banking office and the credit
union serving the military field of membership.
(4) Direct that the appropriate commander advise the claimant that:
(i) Those aspects of DoD policy prescribed in 43a.5, are pertinent to
the particular claim in question; and (ii) the member concerned has
been counseled concerning his or her obligations with respect to the
claim. The commander's response will not undertake to arbitrate any
disputed debt, or to admit or deny the validity of the claim. Under no
circumstances will the response indicate whether any action has been
taken against the member as a result of the complaint.
32 CFR 43a.7 Abuse of the processing privilege.
DoD Components may promulgate policies and procedures that will deny
any claimant the processing of the claim where:
(a) A claimant, having been notified of the requirements of this
Directive, refuses or repeatedly fails to comply with them; or
(b) A claimant, regardless of the merits of the claim, clearly has
shown that an attempt is being made to make unreasonable use of the
processing privilege.
32 CFR 43a.8 Full disclosure and standards of fairness by creditors.
Public Law 90-321 prescribes the general disclosure requirements
which must be met by those offering or extending consumer credit, and
Regulation Z prescribes the specific disclosure requirements for both
open-end and installment credit transactions. In place of Federal
Government requirements, State regulations apply to credit transactions
when the Federal Reserve Board has determined that the State regulations
impose substantially similar requirements and provide adequate
enforcement measures. Commanding officers should check regulations of
the Federal Reserve Board to determine whether Federal or State laws and
regulations govern.
32 CFR 43a.9 Standards of fairness.
(a) No finance charge contracted for, made, or received under any
contract shall be in excess of the charge which could be made for such
contract under the law of the place in which the contract is signed in
the United States by the military member.
(1) In the event a contract is signed with a U.S. company in a
foreign country, the lowest interest rate of the State or States in
which the company is chartered or does business shall apply.
(2) However, interest rates and service charges applicable to
overseas military banking facilities will be established by the
Department of Defense.
(b) No contract or loan agreement shall provide for an attorney's fee
in the event of default unless suit is filed, in which event the fee
provided in the contract shall not exceed 20 percent of the obligation
found due. No attorney fees shall be authorized if the attorney is a
salaried employee of the holder.
(c) In loan transactions, defenses which the debtors may have against
the original lender or its agent shall be good against any subsequent
holder of the obligation. In credit transactions, defenses against the
seller or its agent shall be good against any subsequent holder of the
obligation, provided that the holder had actual knowledge of the defense
or under conditions where reasonable inquiry would have appraised the
holder of this fact.
(d) The military member shall have the right to remove any security
for the obligation beyond State or national boundaries if the military
member or family moves beyond such boundaries under military orders and
notifies the creditor, in advance of the removal, of the new address
where the security will be located. Removal of the security shall not
accelerate payment of the obligation.
(e) No late charge shall be made in excess of 5 percent of the late
payment, or $5.00 whichever is the lesser amount, or as provided by law
or applicable regulatory agency determination. Only one late charge may
be made for any tardy installment. Late charges will not be levied
where an allotment has been timely filed, but payment of the allotment
has been delayed. Late charges by overseas banking facilities are a
matter of contract with the Department of Defense. Late charges by
Federal credit unions are set at 20 percent of the interest due with a
minimum of not less than 5 cents.
(f) The obligation may be paid in full at any time or through
accelerated payments of any amount. There shall be no penalty for
prepayment and in the event of prepayment that portion of the finance
charges which has inured to the benefit of the seller or creditor shall
be prorated on the basis of the charges which would have been ratably
payable had finance charges been calculated and payable as equal
periodic payments over the terms of the contract and only the prorated
amount to the date of prepayment shall be due. As an alternative the
''Rule of 78'' may be applied.
(g) If a charge is made for loan insurance protection, it must be
evidenced by delivery of a policy or certificate of insurance to the
military member within 30 days.
(h) If the loan or contract agreement provides for payments in
installments, each payment, other than the down payment, shall be in
equal or substantially equal amounts, and installments shall be
successive and of equal or substantially equal duration.
(i) If the security for the debt is repossessed and sold in order to
satisfy or reduce the debt, the repossession and resale will be governed
by the laws of the State in which the security is requested.
(j) A contract for personal goods and services may be terminated at
any time before delivery of the goods or services without charge to the
purchaser. However, if goods made to the special order of the purchaser
result in preproduction costs, or require preparation for delivery, such
additional costs will be listed in the order form or contract.
(1) No termination charge will be made in excess of this amount.
Contracts for delivery at future intervals may be terminated as to the
undelivered portion.
(2) The purchaser shall be chargeable only for that proportion of the
total cost which the goods or services delivered bear to the total goods
called for by the contract. (This is in addition to the right to
rescind certain credit transactions involving a security interest in
real estate provided by Pub. L. 90-321 and the FRB Regulation Z.)
32 CFR 43a.10 Certificate of Compliance.
I certify that the
(Name of Creditor) upon extending credit to --------------------
(Name of Obligor) on ---------- (Date) complied with the full disclosure
requirements of the Truth-in-Lending Act and Regulation Z, and the Fair
Debt Collection Practices Act (or the laws and regulations of State of
---------- ), and that the attached statement is a true copy of the
general and specific disclosures provided the obligor as required by
law.
I further certify that the Standards of Fairness set forth in Part
43a have been applied to the consumer credit transaction to which this
form refers. (If the unpaid balance has been adjusted as a consequence,
the specific adjustments in the finance charge and the annual percentage
rate should be set forth below.)
(Adjustments)
-------------- (Date of Certification) --------------
(Signature of Creditor or Authorized Representative)
(Street)
(City, State and Zip Code
32 CFR 43a.10 PART 44 -- SCREENING THE READY RESERVE
Sec.
44.1 Purpose.
44.2 Applicability.
44.3 Definitions.
44.4 Policy.
44.5 Procedures.
44.6 Responsibilities.
44.7 Information requirements.
Appendix A to Part 44 -- Letter Format to Cognizant Reserve Personnel
Center Requesting That Employee Be Removed From the Ready Reserve
Appendix B to Part 44 -- List of Reserve Personnel Centers to Which
Reserve Screening Determination and Removal Requests Shall be Forwarded
Authority: Title 10 U.S.C. 269, 271, 272, 652, 672, 673, 674, 685,
and 1005 and E.O. 11190.
Source: 49 FR 30067, July 26, 1984, unless otherwise noted.
32 CFR 44.1 Purpose.
This part updates and clarifies DoD policy, procedures, and
responsibilities governing the screening of Ready Reservists, consistent
with title 10 U.S.C. 269, 271, 272, 652, 672, 673, 674, 685, and 1005
and E.O. 11190.
32 CFR 44.2 Applicability.
This part applies to the Office of the Secretary of Defense and the
Military Departments (including their reserve components). The term
''Military Services,'' as used herein, refers to the Army, the Navy, the
Air Force, the Marine Corps, and the Coast Guard (by agreement with the
Department of Transportation). Reserve components include the Army
National Guard, the Army Reserve, the Naval Reserve, the Marine Corps
Reserve, the Air National Guard, the Air Force Reserve, and the Coast
Guard Reserve.
32 CFR 44.3 Definitions.
(a) Defense support industry. Any business or corporation so
determined by FEMA.
(b) Extreme community hardship. A situation that, because a
reservist is mobilized, may have a substantially adverse effect on the
health, safety, or welfare of the community. Any request for a
determination of such hardship shall be made by the reservist and must
be supported by documentation as required by the Secretary of the
Military Department concerned.
(c) Extreme personal hardship. An adverse impact upon a reservist's
dependents resulting from his or her mobilization. Any request for a
determination of such hardship shall be made by the reservist and must
be supported by documentation as required by the Secretary of the
Military Department concerned.
(d) Key employee. Any federal employee occupying a key position.
(e) Key position. A federal position that cannot be vacated during a
national emergency or mobilization without seriously impairing the
capability of the parent federal agency or office to function
effectively. There are three categories of federal key positions. The
first two categories are, by definition, key positions. Only the final
category requires a case-by-case determination and designation:
(1) The Vice President of the United States or any official specified
in the order of presidential succession as set forth in 3 U.S.C. 19.
(2) Members of Congress, heads of federal agencies appointed by the
President with the consent of the Senate, and the federal judiciary
(District, Circuit, and Supreme Court judges and justices only; all
other positions within the federal judiciary shall be considered under
the provisions of paragraph (e)(3) of this section). For the purposes
of the definition contained in this paragraph, the terms ''heads of
federal agencies'' does not include any person appointed by the
President with the consent of the Senate to a federal agency as a member
of a multimember board or commission. Positions occupied by such
persons may be designated as key positions only by the application of
the criteria set forth in 44.5(b)(2) of this part.
(3) Other federal positions determined by federal agency heads, or
their designees, to be key positions in accordance with the guidelines
specified in 44.5(b)(2) of this part.
(f) Ready Reserve. Units and individual reservists liable for active
duty as outlined in 10 U.S.C. 672 and 673.
(g) Selected Reserve. Part of the Ready Reserve of each reserve
component consisting of units and individuals who participate actively
in paid training periods and serve on paid active duty for training each
year.
(h) Standby Reserve. Units or members of the reserve components,
other than those in the Ready Reserve or Retired Reserve, who are liable
for active duty as provided in sections 672 and 674 of title 10, U.S.C.
32 CFR 44.4 Policy.
It is DoD policy that members of the Selected Reserve and other Ready
Reservists who are not on active duty shall be screened at least
annually to provide a Ready Reserve force composed of members who:
(a) Meet Military Service wartime standards of mental, moral,
professional, and physical fitness.
(b) Possess the military qualifications required in the various
ranks, grades, ratings, and specialties.
(c) Are available immediately for active duty during a mobilization
(or during a war or national emergency or in response to a presidential
order to augment the active forces for an operational mission).
32 CFR 44.5 Procedures.
(a) Reserve component screening activities. The following general
procedures shall be followed to ensure the immediate availability of a
Ready Reserve force:
(1) Annual screening. All Ready Reservists shall be screened at
least annually to ensure their availability. Upon mobilization, all
screening activity ceases, and all those remaining in the Ready Reserve
shall be considered immediately available for active duty service.
(2) Maintaining current data. The development and maintenance of
current information pertaining to the mobilization availability of Ready
Reservists shall be the responsibility of the Secretary of the Military
Department concerned.
(3) Civilian employment. After a mobilization is ordered, no
deferment, delay, or exemption from mobilization will be granted to
Ready Reservists because of their civilian employment.
(4) Retention in the Ready Reserve. All Ready Reservists shall be
retained in the Ready reserve for the entire period of their statutory
obligation or voluntary contract. Exceptions to this policy are made in
this part or may be made by the Secretaries of the Military Departments
(10 U.S.C. 269).
(5) Transfer of National Guard members to the Standby Reserve. In
accordance with section 269(g) of title 10, U.S.C., a member of the Army
National Guard or the Air National Guard may be transferred to the
Standby Reserve only with the consent of the governor or other
appropriate authority of the state, commonwealth, or territory concerned
(including the District of Columbia).
(6) Transfer from the Standby Reserve to the Ready Reserve. Under
section 272 of title 10, U.S.C., any eligible member of the Standby
Reserve may be transferred back to the Ready Reserve when the reason for
the member's transfer to the Standby Reserve no longer exists (32 CFR
Part 100).
(7) Extreme hardship. The Secretaries of the Military Departments
shall screen extreme hardship cases (section 271a(5) of title 10,
U.S.C.). Ready Reservists whose immediate recall to active duty during
an emergency would create an extreme personal or community hardship
shall be transferred to the Standby Reserve or the Retired Reserve or
shall be discharged, as appropriate.
(8) Miscellaneous screening requirements. Ready Reservists
identified in the following categories shall be processed as follows:
(i) Civilian employment restrictions. Ready Reservists who are also
DoD civilian employees may not hold a mobilization assignment to the
same positions that they fill as civilian employees. These Ready
Reservists shall be reassigned or transferred, as appropriate. Reserve
component unit civilian technicians, as members of reserve units, are
excluded from this provision.
(ii) Theological students. Ready Reservists who are preparing for
the ministry in an accredited theological or divinity school cannot be
involuntarily called to active duty or required to participate in
inactive duty training (10 U.S.C. 685). Accordingly, such Ready
Reservists (other than those participating in a military Chaplain
Candidate or Theological Student Program) shall be transferred to the
Standby Reserve (active status) for the duration of their ministerial
studies at accredited theological or divinity schools. Ready Reservists
participating in a military Chaplain Candidate or Theological Student
Program may continue their Ready Reserve affiliation and engage in
active duty and inactive duty training.
(iii) Health care professionals. Ready Reservists may not be
transferred from the Ready Reserve solely because they are students,
interns, residents, or fellows in the health care professions. Upon
mobilization, they either shall be deferred or shall be mobilized in a
student, intern, resident, or fellow status until qualified in the
appropriate military specialty as prescribed by the Military Department
Secretaries (DoD Directive 1215.4).
(9) Availability determinations. The Secretaries of the Military
Departments shall make determinations for mobilization availability on a
case-by-case basis, consistent with this part, and not by class or group
determinations.
(10) Removal determinations. Under this part, the Secretaries of the
Military Departments shall review recommendations for removal of
employees from the Ready Reserve submitted by employers and shall take
appropriate action.
(b) Screening activities by employers of Ready Reservists. In
addition to the Ready Reserve screening activities prescribed in this
part to be conducted by the Military Departments, employers of Ready
Reservists also have certain screening responsibilities under the law.
(1) Nonfederal employers. Under 44 CFR Part 333, nonfederal
employers of Ready Reservists, particularly in the fields of public
health and safety and defense support industries, are encouraged to
adopt personnel management procedures designed to preclude conflicts
between the emergency manpower needs of civilian activities and the
military during a mobilization. Employers also are encouraged to use
the federal key position guidelines contained herein for making their
own key position designations and, when applicable, for recommending key
employees for removal from the Ready Reserve.
(2) Federal employers. Federal Preparedness Circular (FPC) 9
promulgated policy for Ready Reserve screening activities that shall be
accomplished by federal sector employers. To ensure that federal
employees essential to the continuity of the federal government are not
retained as members of the Ready Reserve, the following procedures shall
apply:
(i) Key positions. Some federal employees occupy positions that
cannot be vacated during a national emergency or mobilization without
seriously impairing the capability of their agency to function
effectively. Because of the essential nature of these positions, the
federal agency head, or designee, concerned shall designate such
positions as key positions and shall require that they not be filled by
Ready Reservists to preclude such positions from being vacated during a
mobilization. The Military Department Secretaries shall transfer Ready
Reservists occupying key positions to the Standby Reserve or the Retired
Reserve or shall discharge them, as appropriate, under 10 U.S.C. 271(b).
However, reserve officers with a remaining military service obligation
at the time of their removal from the Ready Reserve may be transferred
only to the Standby Reserve, Active Status (section 1005 of title 10,
U.S.C.).
(ii) Key position designation guidelines. In determining whether or
not a position should be designated as a key position, the following
questions should be considered by the federal agency concerned:
(A) Can the position be filled in a reasonable time after
mobilization?
(B) Does the position require technical or managerial skills that are
possessed uniquely by the incumbent imployee?
(C) Is the position associated directly with defense mobilization?
(D) Does the position include a mobilization or relocation assignment
in an agency having emergency functions as designated by E.O. 11490?
(E) Is the position directly associated with industrial or manpower
mobilization as designated in E.O. 11490 and E.O. 10480?
(F) Are there other factors related to national defense, health, or
safety that would make the incumbent of the position unavailable for
mobilization?
(c) Removal Recommendations. All employers who determine that a
Ready Reservist is a key employee, in accordance with the guidelines
contained in this part, promptly should report that determination to the
cognizant reserve. The letter format shown in Appendix A should be used
for such recommendations and should be mailed to the cognizant reserve
personnel center listed in Appendix B. All the information shown in the
letter format should be provided so the reserve personnel center can
assess properly the matter and take appropriate action.
(d) Resolution of conflicting manpower needs. In accordance with 44
CFR Part 333, the Federal Emergency Management Agency (FEMA) has the
authority to adjudicate, before mobilization, conflicts between the
mobilization manpower needs of the civilian sector and the military that
the Ready Reserve screening process has identified but has not resolved.
(e) Individual responsibilities of Ready Reservists. (1) Each Ready
Reservist who is not a member of the Selected Reserve is obligated to
notify the Secretary of the Military Department concerned of any change
of address, marital status, number of dependents, or civilian employment
and any other change that would prevent the member from meeting
mobilization standards prescribed by the Military Service concerned (10
U.S.C. 652).
(2) All Ready Reservists shall inform their employers of their
Reserve military obligation.
32 CFR 44.6 Responsibilities.
(a) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA))
shall manage and control the overall Ready Reserve screening program in
accordance with section 271 of title 10, U.S.C., E.O. 11190, and House
Appropriations Committee Report 95-451.
(b) The Secretaries of the Military Departments shall:
(1) Screen, at least annually, all Ready Reservists under their
jurisdiction to ensure their immediate availability for active duty.
(2) Ensure that personnel records systems incorporate information on
any factors that limit the mobilization availability of a Ready
Reservist.
(3) Ensure that all Ready Reservists have a favorably completed
National Agency Check (NAC) or Entrance National Agency Check (ENTNAC)
on file.
(4) Ensure that Ready Reservists not on active duty are examined as
to physical fitness in accordance with DoD Directive 1205.9.
(5) Process members of the Ready Reserve who do not participate
satisfactorily in accordance with Parts 100, 101, and 115 of this title.
(6) Transfer Ready Reservists identified as occupying key positions
to the Standby Reserve or the Retired Reserve or discharge them, as
appropriate.
(7) After making a removal determination in response to a petition
for such action, promptly transmit the results of that determination to
the Ready Reservist concerned and his or her employer.
32 CFR 44.7 Information requirements.
The ASD(RA) shall provide:
(a) Federal agencies with a listing of all federal employees who are
also Ready Reservists to assist them in conducting employer screening
activities required in FPC-9. Responses from federal agencies shall be
reported under Interagency Report Control Number 0912-DoD-AN. Standard
data elements shall be used in the report in accordance with DoD
Directive 5000.11.
(b) The House Appropriations Committee with an annual report on the
status of Ready Reservists employed by the federal government.
32 CFR 44.7 Pt. 44, App. A
32 CFR 44.7 Appendix A to Part 44 -- Letter Format to Cognizant Reserve
Personnel Center Requesting That Employee Be Removed From the Ready
Reserve
(Date)
--
(YYMMDD)
From: (employer-agency or company)
To: (appropriate reserve personnel center)
Subject: Request for Employee to Be Removed from the Ready Reserve
This is to certify that the employee identified below is vital to the
nation's defense efforts in (his or her) civilian job and can't be
mobilized with the Military Services in an emergency for the following
reasons:
Therefore, I request that (he or she) be removed from the Ready
Reserve and that you advise me accordingly when this action has been
completed.
The employee is:
Name of employee (last, first, M.I.)
Military grade and reserve component
Social security number
Current home address (street, city, state, and ZIP code)
Military unit to which assigned (location and unit number)
Title of employee's civilian position
Grade or salary level of civilian position
Date (YYMMDD) hired or assigned to position.
--
Signature and Title of Agency or Company Official
32 CFR 44.7 Pt. 44, App. B
32 CFR 44.7 Appendix B to Part 44 -- List of Reserve Personnel Centers
To Which Reserve Screening Determination and Removal Requests Shall Be
Forwarded
Headquarters, Department of the Army, Attn: DAPE-PSM, Washington, DC
20310
Officers: Commander, Naval Military Personnel Center, Attention:
NMPC-911, Washington, DC 20370
Enlisted: Commanding Officer, Naval Reserve Personnel Center, New
Orleans, LA 70149
Commandant (Code RES), Headquarters, U.S. Marine Corps, Washington,
DC 20380
Commander (ARPC/DP), Air Reserve Personnel Center, 7300 East First
Avenue, Denver, CO 80280
Submit requests to the adjutant general of the appropriate state,
commonwealth, or territory (including the District of Columbia).
Commandant (G-RA/55), U.S. Coast Guard Headquarters, 2100 Second
Street SW., Washington, DC 20593.
32 CFR 44.7 PART 45 -- CERTIFICATE OF RELEASE OR DISCHARGE FROM ACTIVE
DUTY (DD FORM 214/5 SERIES)
Sec.
45.1 Purpose.
45.2 Applicability and scope.
45.3 Policy and procedures.
45.4 Responsibilities.
Appendix A to Part 45 -- DD Form 214
Appendix B to Part 45 -- DD Form 214WS
Appendix C to Part 45 -- DD Form 215
Appendix D to Part 45 -- State Directors of Veterans Affairs
Authority: 10 U.S.C. 1168 and 972.
Source: 54 FR 7409, Feb. 21, 1989, unless otherwise noted.
32 CFR 45.1 Purpose.
(a) This document revises 32 CFR Part 45.
(b) Prescribes procedures concerning the preparation and distribution
of revised DD Form 214 to comport with the requirements of 10 U.S.C.
1168, 972, and 32 CFR Part 41 and the control and publication of
separation program designators (SPDs).
32 CFR 45.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Services, the Joint Staff, and the Defense
Agencies (hereafter referred to as ''DoD Components''). The term
''Military Services,'' as used here, refers to the Army, Navy, the Air
Force, the Marine Corps and, by agreement with the Department of
Transportation, to the Coast Guard.
(b) Its provisions include procedures on the preparation and
distribution of DD Forms 214, 214WS, 215 (Appendices A, B, and C) which
record and report the transfer or separation of military personnel from
a period of active duty. (NOTE: Computer-generated formats are
acceptable substitutes provided Assistant Secretary of Defense (Force
Management and Personnel) approval is obtained.) DD Forms 214 and 215
(or their substitutes) will provide:
(1) The Military Services with a source of information relating to
military personnel for administrative purposes, and for making
determinations of eligibility for enlistment or reenlistment.
(2) The Service member with a brief, clear-cut record of the member's
active service with the Armed Forces at the time of transfer, release,
or discharge, or when the member changes status or component while on
active duty.
(3) Appropriate governmental agencies with an authoritative source of
information which they require in the administration of Federal and
State laws applying to personnel who have been discharged, otherwise
released, or transferred to a Reserve component while on active duty.
(c) Its provisions include procedures on the control and distribution
of all lists of SPDs.
32 CFR 45.3 Policy and procedures.
(a) Administrative issuance or reissuance of DD Forms 214 and 215.
(1) The DD Form 214 will normally be issued by the command from which
the member was separated. In those instances where a DD Form 214 was
not issued, the Services concerned may establish procedures for
administrative issuance.
(2) The DD Form 214, once issued, will not be reissued except:
(i) When directed by appropriate appellate authority, Executive
Order, or by the Secretary concerned.
(ii) When it is determined by the Service concerned that the original
DD Form 214 cannot be properly corrected by issuance of a DD Form 215 or
if the correction would require issuance of more than two DD Forms 215.
(iii) When two DD Forms 215 have been issued and an additional
correction is required.
(3) Whenever a DD Form 214 is administratively issued or reissued, an
appropriate entry stating that fact and the date of such action will be
made in Block 18, Remarks, of the DD Form 214 unless the appellate
authority, Executive Order, or Secretarial directive specifies
otherwise.
(b) The Military Services will ensure that every member (except as
limited in paragraph (b)(2) of this section and excluding those listed
in paragraph (c) of this section being separated from the Military
Services is given a completed DD Form 214 describing relevant data
regarding the member's service, and the circumstances of termination.
DD Form 214 may also be issued under other circumstances prescribed by
the Military Service concerned. A continuation sheet, if required, will
be bond paper, and will reference: The DD Form 214 being continued;
information from blocks 1 through 4; the appropriate block(s) being
continued; the member's signature, date; and the authorizing
official's signature. DD Forms 214 are not intended to have any legal
effect on termination of the member's service.
(1) Release or discharge from active service. (i) The original of DD
Form 214 showing separation from a period of active service with a
Military Service, including release from a status that is legally
determined to be void, will be physically delivered to the separate
prior to departure from the separation activity on the effective date of
separation; or on the date authorized travel time commences.
(A) Copy No. 4, containing the statutory or regulatory authority,
reentry code, SPD code, and narrative reason for separation also will be
physically delivered to the separatee prior to departure, if he/she so
requested by initiating Block 30, Member Requests Copy 4.
(B) Remaining copies of DD Form 214 will be distributed on the day
following the effective date of separation.
(ii) When separation is effected under emergency conditions which
preclude physical delivery, or when the recipient departs in advance of
normal departure time (e.g., on leave in conjunction with retirement;
or at home awaiting separation for disability), the original DD Form 214
will be mailed to the recipient on the effective date of separation.
(iii) If the separation activity is unable to complete all items on
the DD Form 214, the form will be prepared as completely as possible and
delivered to the separatee. The separatee will be advised that a DD
Form 215 will be issued by the Military Service concerned when the
missing information becomes available; and that it will not be
necessary for the separatee to request a DD Form 215 for such
information.
(iv) If an optical character recognition format is utilized by a
Military Service, the first carbon copy of the document will be
physically delivered or mailed to the separatee as prescribed in
paragraphs (b) (i) through (iii) of this section.
(2) Release from active duty for training, full-time training duty,
or active duty for special work. Personnel being separated from a
period of active duty for training, full-time training duty, or active
duty for special work will be furnished a DD Form 214 when they have
served 90 days or more, or when required by the Secretary concerned for
shorter periods. Personnel shall be furnished a DD Form 214 upon
separation for cause or for physical disability regardless of the length
of time served on active duty.
(3) Continuing on active duty. Members who change their status or
component, as outlined below, while they are serving on active duty will
be provided a completed DD form 214 upon:
(i) Discharge for immediate enlistment or reenlistment (optional --
at the discretion of the Military Services). However, Military Services
not providing the DD Form 214 will furnish the member a DD Form 256,
''Honorable Discharge Certificate,'' and will issue instructions
requiring those military offices which maintain a member's records to
provide necessary Service data to the member for application to
appropriate civilian individuals, groups, and governmental agencies.
Such data will include Service component, entry data and grades.
(ii) Termination of enlisted status to accept an appointment to
warrant or commissioned officer grade.
(iii) Termination of a temporary appointment to accept a permanent
warrant or commission in the Regular or Reserve components of the Armed
Forces.
(iv) Termination of an officer appointment in one of the Military
Services to accept appointment in another Service.
(c) DD Form 214 need not be prepared for: (1) Personnel found
disqualified upon reporting for active duty and who do not enter
actively upon duties in accordance with orders.
(2) Personnel whose active duty, active duty for training, full-time
training duty or active duty for special work is terminated by death.
(3) Personnel being removed from the Temporary Disability Retired
List.
(4) Enlisted personnel receiving temporary appointments to warrant or
commissioned officer grades.
(5) Personnel whose temporary warrant or commissioned officer status
is terminated and who remain on active duty to complete an enlistment.
(6) Personnel who terminate their Reserve component status to
integrate into a Regular component.
(7) Personnel separated or discharged who have been furnished a prior
edition of this form, unless that form is in need of reissuance for some
other reason.
(d) Preparation. The Military Departments will issue instructions
governing the preparation of DD Form 214, consistent with the following:
(1) DD Form 214 is an important record of service which must be
prepared accurately and completely. Any unavoidable corrections and
changes made in the unshaded areas of the form during preparation shall
be neat, legible and initialed on all copies by the authenticating
official. The recipient will be informed that making any unauthorized
change or alteration of the form will render it void.
(2) Since DD Form 214 is often used by civilian personnel,
abbreviations should be avoided.
(3) Copies of DD Form 214 transmitted to various governmental
agencies shall be legible, especially those provided to the Veterans
Administration (Department of Veterans Affairs, effective March 15,
1989, in accordance with section 18(a), Pub. L. 100-527 and the
Department of Labor).
(4) The authority for a member's transfer or discharge will be cited
by reference to the appropriate Military Service regulation,
instruction, or manual, followed by the appropriate separation program
designator on copies 2, 4, 7, and 8 only. A narrative description to
identify the reason for transfer or separation will not be used on copy
1.
(5) To assist the former Service member in employment placement and
job counseling, formal inservice training courses successfully completed
during the period covered by the form will be listed in Block 14,
Military Education; e.g., medical, dental, electronics, supply,
administration, personnel or heavy equipment operations. Training
courses for combat skills will not be listed. See 1978 Guide to the
Evaluation of Educational Experiences in the Armed Services for commonly
accepted course titles and abbreviations.
(6) For the purpose of reemployment rights (DoD Directive 1205.12)
/1/ ) all extensions of service, except those under 10 U.S.C. 972, are
considered to be at the request and for the convenience of the
Government. In these cases, Block 18 of DD Form 214 will be annotated to
indicate ''Extension of service was at the request and for the
convenience of the Government.''
(7) When one or more of the data items on the DD Form 214 are not
available and the document is issued to the separatee, the applicable
block(s) will be annotated ''See Remarks.'' In such cases, Block 18 will
contain the entry ''DD Form 215 will be issued to provide missing
information.'' When appropriate, Block 18 will also reflect the amount
of disability pay, and the inclusive dates of any nonpay/excess leave
days.
(8) The authorizing official (E-7, GS-7 or above) will sign the
original in ink ensuring that the signature is legible on all carbon
copies. If not, a second signature may be necessary on a subsequent
carbon copy. The authorized official shall be an E-7, GS-7, or higher
grade, except that the Service concerned may authorize chiefs of
installation separation activities (E-5, GS-5, or above) to serve in
this capacity if designated in writing by the responsible commander
and/or director (0-4, or above).
(9) The following are the only authorized entries in Block 24,
Character of Service, as appropriate: ''Honorable,'' ''Under Honorable
Conditions (General),'' ''Under Other Than Honorable Conditions,'' ''Bad
Conduct,'' ''Dishonorable,'' or ''Uncharacterized.'' When a discharge
has been upgraded, the DD Form 214 will be annotated on copies 2 through
8 in Block 18 to indicate the character of service has been upgraded;
the date the application for upgrade was made; and the effective date
of the corrective action.
(10) The date entered in Block 12.a. shall be the date of enlistment
for the earliest period of continuous active service for which a DD Form
214 was not previously issued. For members who have previously
reenlisted without being issued a DD Form 214, and who are being
separated with any discharge characterization except ''Honorable,'' the
following statement shall appear as the first entry in Block 18.,
''Remarks,'' on the DD Form 214: ''CONTINUOUS HONORABLE ACTIVE SERVICE
FROM (applicable date) UNTIL (applicable date).'' The ''from'' date
shall be the date of initial entry into active duty, or the first day of
service for which a DD Form 214 was not previously issued, as
applicable; the ''until'' date shall be the date before commencement of
the current enlistment.
(11) For Service members retiring from active duty enter in Block
18., ''Subject to active duty recall by Service Secretary.''
(12) For Service members being transferred to the Individual Ready
Reserve, enter in Block 18., ''Subject to active duty recall and/or
annual screening.''
(e) Distribution. The Military Services will prescribe procedures
governing the distribution of copies of the DD Forms 214 and 215,
consistent with their internal requirements, and the following:
(1) DD Form 214 -- (i) Copy No. 1 (original). To the member.
(ii) Copy No. 2. To be used as the Military Services' record copy.
(iii) Copy No. 3. To the Veterans Administration (Department of
Veterans Affairs, effective March 15, 1989, in accordance with section
18(a), Data Processing Center (214), 1614 E. Woodword Street, Austin,
Texas 78772. A reproduced copy will also be provided to the hospital
with the medical records if the individual is transferred to a VA
hospital. If the individual completes VA Form 21-5267, ''Veterans
Application for Compensation or Pension,'' include a copy of the DD Form
214 with medical records forwarded to the VA regional office having
jurisdiction over the member's permanent address. When an individual is
in Service and enlisting or reenlisting in an active duty status or
otherwise continuing on active duty in another status, copy No. 3 will
not be forwarded to the VA.
(iv) Copy No. 4. To the member, if the member so requested by having
initialed Block 30. If the member does not request this copy, it may be
retained in the master military personnel record, to be available in
case the member requests a copy later.
(v) Copy No. 5. To Louisiana UCX/UCFE, Claims Control Center,
Louisiana Department of Labor, P.O. Box 94246, Capitol Station, Baton
Rouge, Louisiana 70804-9246.
(vi) Copy No. 6. To the appropriate State Director of Veterans
Affairs (see enclosure 4), if the member so requested by having checked
''Yes'' in Block 20, ''Member Requests Copy Be Sent to Director of
Veterans Affairs.'' The member must specify the State. If the member
does not request the copy be mailed, it may be utilized as prescribed by
the Military Service concerned.
(vii) Copies No. 7 and 8. To be distributed in accordance with
regulations issued by the Military Service concerned.
(viii) Additional Copy Requirements. Discharged Alien Deserters.
Provide one reproduced copy of Copy No. 1 to the U.S. Department of
State, Visa Office -- SCA/VO, State Annex No. 2, Washington, D.C.
20520, to assist the Visa Office in precluding the unwarranted issuance
of visas to discharged and alien deserters in accordance with DoD
Directive 1325.2 /2/ . Place of birth will be entered in Block 18.
(2) DD Form 214-ws. Utilized to facilitate the preparation of DD
Form 214. The document will be used and disposed of in accordance with
regulations issued by the Military Service concerned.
(3) DD Form 215. Utilized to correct errors in DD Form 214
discovered after the original has been delivered and/or distribution of
copies of the form has been made, and to furnish to separatee
information not available when the DD Form 214 was prepared. The
distribution of DD Form 215 will be identical to the distribution of DD
Form 214.
(4) Requests for Copies of DD Form 214 Subsequent to Separation.
Agencies maintaining a separatee's DD Form 214 will provide a copy only
upon written request by the member. Agencies will provide the member
with 1 copy with the Special Additional Information section, and 1 copy
with that information deleted. In the case of DD Form 214 issued prior
to July 1, 1979, agencies will provide the member with 1 copy containing
all items of information completed, and 1 copy with the following items
deleted from the form: Specific authority and narrative reason for
separation, reenlistment eligibility code, and separation program
designator/number.
(i) In those cases where the member has supplied an authorization to
provide a copy of the DD Form 214 to another individual or group, the
copy furnished will not contain the Special Additional Information
section or, in the case of DD forms issued prior to July 1, 1979, those
items listed in paragraph (e)(4) of this section.
(ii) A copy will be provided to authorized personnel for official
purposes only.
(f) Procurement. Arrangements for procurement of DD Forms 214,
214-ws, and 215 will be made by the Military Services.
(g) Modification of Forms. The modification of the content or format
of DD Forms 214, 214-ws, and 215 may not be accomplished without prior
authorization of the Assistant Secretary of Defense (Force Management
and Personnel) (ASD(FM&P)). Requests to add or delete information will
be coordinated with the other Military Services in writing, prior to
submission to the ASD(FM&P). If a Military Service uses computer
capability to generate forms, the items of information may be arranged,
the size of the information blocks may be increased or decreased, and
copies 7 and/or 8 may be deleted at the discretion of the Service.
/1/ Copies may be obtained if needed, from the U.S. Naval
Publications and forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA.
/2/ See footnote 1 to 545.3(d)(6).
32 CFR 45.4 Responsibilities.
(a) The DD Forms 214 and 215 are a source of significant and
authoritative information used by civilian and governmental agencies to
validate veteran eligibility for benefits. As such, they are valuable
forms and, therefore, vulnerable to fraudulent use. Since they are
sensitive, the forms must be safeguarded at all times. They will be
transmitted, stored, and destroyed in a manner which will prevent
unauthorized use. The Military Services will issue instructions
consistent with the following:
(1) All DD Forms 214 will be surprinted with a reproducible screen
tint using appropriate security ink on Blocks 1, 3, 4.a, 4.b, 12, and 18
through 30. In addition Blocks 1, 3, 5, and 7 of the DD Form 215 will
be similarly surprinted to make alterations readily discernible. No
corrections will be permitted in the screened areas.
(2) All forms will be secured after duty hours.
(3) All obsolete forms will be destroyed.
(4) All forms to be discarded, including those which are blank or
partially completed, and reproduced copies of DD Form 214, will be
destroyed. No forms will be discarded intact.
(5) Blank forms given to personnel for educational or instructional
purposes, and forms maintained for such use, are to be clearly voided in
an unalterable manner.
(6) The commander or commanding officer of each unit or activity
authorized to issue DD Form 214 will appoint, in writing, a commissioned
officer, warrant officer, enlisted member (grade E-7 or above), or DoD
civilian (GS-7 or above) who will requisition, control, and issue blank
DD Forms 214 and 215. The Service concerned may authorize an E-5 or
GS-5 to serve in this capacity.
(7) The Military Services will monitor the use of DD Form 214 and
review periodically its issuance to insure compliance with procedures
for safeguarding.
(b) The DD Form 214-ws will contain the word ''WORKSHEET'' on the
body of the form (see Appendix B). This DD Form 214-ws will be treated
in the same manner as the DD Form 214.
(c) The Military Services will issue appropriate instructions to
separation activities stressing the importance of the DD Forms 214 and
215 in obtaining veterans benefits, reemployment rights, and
unemployment insurance.
(d) Standard separation program designator (SPD) codes for officer
and enlisted personnel developed under the provisions of DoD Instruction
5000.12 /3/ are published in DoD 5000.12-M.
(1) Requests to add, change, or delete an SPD code shall be forwarded
by the DoD Component concerned with appropriate justification to the
Assigned Responsible Agency accountable for evaluating, recommending
approval of, and maintaining such codes: Department of the Navy, Office
of The Chief of Naval Operations, (Attention: OP-161), Room 1514,
Arlington Annex, Washington, DC 20350-2000.
(2) Requests to add, change, or delete an SPD code will be submitted
in accordance with section V., DoD Instruction 5000.12 with prior
written approval by the ASD (FM&P), or his/her designee.
(e) All lists of SPD codes, including supplemental lists, published
by the DoD Components will be stamped ''For Official Use Only'' and will
not be furnished to any agency or individual outside the Department of
Defense.
(1) Appropriate provisions of the Freedom of Information Act will be
used to deny the release of the lists to the public. An individual
being separated or discharged is entitled access only to his/her SPD
code. It is not intended that these codes stigmatize an individual in
any manner. They are intended for internal use by the Department of
Defense in collecting data to analyze statistical reporting trends that
may, in turn, influence changes in separation policy.
(2) Agencies or individuals who come into the possession of these
lists are cautioned on their use because a particular list may be
outdated and not reveal correctly the full circumstances relating to an
individual's separation or discharge.
/3/ See footnote 1 to 45.3(d)(6).
32 CFR 45.4 Appendix A to Part 45 -- DD Form 214
32 CFR 45.4 Pt. 45, App. A
Insert Illustration(s) 0 391
Insert Illustration(s) 0 392
Insert Illustration(s) 0 393
Insert Illustration(s) 0 394
(54 FR 9985, Mar. 9, 1989)
32 CFR 45.4 Appendix B to Part 45 -- DD Form 214ws
32 CFR 45.4 Pt. 45, App. B
Insert Illustration 0467
32 CFR 45.4 Appendix C to Part 45 -- DD Form 215
32 CFR 45.4 Pt. 45, App. C
Insert Illustration 0468
32 CFR 45.4 Appendix D to Part 45 -- State Directors of Veterans Affairs
32 CFR 45.4 Pt. 45, App. D
Director, Department of Veterans Affairs, P.O. Box 1509, Montgomery,
AL 36192-3701.
Director, Division of Veterans Affairs, Department of Military &
Veterans Affairs, 3601 C Street, Suite 620, Anchorage, AK 99503.
Veterans Affairs Officer, Office of Veterans Affairs, American Samoa
Government, P.O. Box 2586, Pago Pago, AS 96799.
Director of Veterans Affairs, Arizona Veterans Service Commission,
3225 N. Central Avenue, Suite 910, Phoenix, AZ 85012.
Director, 1200 West 3rd, Room 105, Box 1280, Little Rock, AR 72201.
Director, Department of Veterans Affairs, 1227 O Street, Room 200A,
Sacramento, CA 95814.
Director, Division of Veterans Affairs, Department of Social
Services, 1575 Sherman Street, Room 122, Denver, CO 80203.
Chairman, Commission of Veterans Affairs, P.O. Box 1401, Dover, DE
19901.
Chief, Office of Veterans Affairs, 941 North Capitol Street NE., Room
1211 F, Washington, DC 20421.
Director, Division of Veterans Affairs, P.O. Box 1437, St.
Petersburg, FL 33731.
Commissioner, Department of Veterans Service, Floyd Veterans Memorial
Bldg, Suite E-970, Atlanta, GA 30334.
Office of Veterans Affairs, P.O. Box 3279, Agana, Guam 96910.
Director, Department of Social Services & Housing, Veterans Affairs
Section, 3949 Diamond Head Road, Honolulu, HI 96809-0339.
Administrator, Division of Veterans Service, P.O. Box 6675, Boise, ID
83707.
Commandant, Veterans Home and Hospital, 287 West Street, Rocky Hill,
CT 06067.
Director, Department of Veterans Affairs, 707 State Office Building,
100 N. Senate Avenue, Indianapolis, IN 46204.
Administrator, Veterans Affairs Division, 7700 NW. Beaver Drive,
Camp Dodge, Johnston, IA 50131-1902.
Executive Director, Kansas Veterans Commission, Jayhawk Tower, Suite
701, 700 SW. Jackson Street, Topeka, KS 66603-3150.
Director, Kentucky Center for Veterans Affairs, 600 Federal Place --
Room 1365, Louisville, KY 40202.
Executive Director, Department of Veterans Affairs, P.O. Box 94095,
Capitol Station, Baton Rouge, LA 70804-4095.
Director, Bureau of Veterans Services, State Office Building Station
117, Augusta, ME 04333.
Executive Director, Maryland Veterans Commission, Federal Bldg. --
Room 110, 31 Hopkins Plaza, Baltimore, MD 21201.
Director, Department of Veterans Affairs, 208 West Cook Street,
Springfield, IL 62705.
Director, Michigan Veterans Trust Fund, P.O. Box 30026, Ottawa Bldg,
No. Tower, 3rd Floor, Lansing, MI 48909.
Commissioner, Department of Veterans Affairs, Veterans Service
Building, 2nd Floor, St. Paul, MN 55155.
President, State Veterans Affairs Board, 120 North State Street, War
Memorial Building, Room B-100, Jackson, MS 39201.
Director, Division of Veterans Affairs, P.O. Drawer 147, Jefferson
City, MO 65101.
Administrator, Veterans Affairs Division, P.O. Box 5715, Helena, MT
59604.
Director, Department of Veterans Affairs, P.O. Box 95083, State
Office Building, Lincoln, NE 68509.
Commissioner, Commission for Veterans Affairs, 1201 Terminal Way,
Room 108, Reno, NV 89520.
Commissioner, Department of Veterans Services, 100 Cambridge Street
-- Room 1002, Boston, MA 02202.
Director, Division of Veterans Programs & Special Services, 143 E.
State Street, Room 505, Trenton, NJ 08608.
Director, Veterans Service Commission, P.O. Box 2324, Santa Fe, NM
87503.
Director, Division of Veterans Affairs, State Office Building 6A-19,
Veterans Highway, Hauppauge, NY 11788.
Asst Secretary for Veterans Affairs, Division of Veterans Affairs,
227 E. Edenton Street, Raleigh, NC 27601.
Commissioner, Department of Veterans Affairs, 15 North Broadway,
Suite 613, Fargo, ND 58102.
Director, Division of Soldiers Claims & Veterans Affairs, State House
Annex, Room 11, Columbus, OH 43215.
Director, Department of Veterans Affairs, P.O. Box 53067, Oklahoma
City, OK 73152.
Director, State Veterans Council, 359 Lincoln Street, Manchester, NH
03103.
Director, Department of Veterans Affairs, Oregon Veterans Building,
700 Summer Street NE., Suite 150, Salem, OR 97310-1270.
Director, Department of Military Affairs, Bureau for Veterans
Affairs, Fort Indiantown Gap, Bldg 5-0-47, Annville, PA 17003-5002.
Director, Bureau of Veterans Affairs & Human Resources, Department of
Labor, 505 Munoz Rivera Avenue, Hato Rey, PR 00918.
Chief, Veterans Affairs Office, Metacom Avenue, Bristol, RI 02809.
Director, Department of Veterans Affairs, Brown State Office
Building, 1205 Pendleton Street, Columbia, SC 29201.
Director, Division of Veterans Affairs, 500 East Capitol Avenue,
State Capitol Building, Pierre, SD 57501-5083.
Commissioner, Department of Veterans Affairs, 215 8th Avenue, North,
Nashville, TN 37203.
Executive Director, Veterans Affairs Commission of Texas, Box 12277,
Capitol Station, Austin, TX 78711.
No DVA.
Director, Veterans Affairs Office, State Office Building, Montpelier,
VT 05602.
Director, Division of War Veterans Claims, 210 Franklin Road, SW.,
Room 1002, P.O. Box 809, Roanoke, VA 24004.
Director, Division of Veterans Affairs, P.O. Box 890, Christiansted,
St. Croix, VI 00820.
Director, Department of Veterans Affairs, P.O. Box 9778, Mail Stop
PM-41, Olympia, WA 95804.
Director, Department of Veterans Affairs, 605 Atlas Building,
Charleston, WV 25301-9778.
Secretary, Department of Veterans Affairs, P.O. Box 7843, 77 North
Dickinson Street, Madison, WI 53707.
32 CFR 45.4 PART 46 -- FEDERAL VOTING ASSISTANCE PROGRAM
Sec.
46.1 Reissuance and purpose.
46.2 Applicability and scope.
46.3 Definitions.
46.4 Policy.
46.5 Organization.
46.6 Responsibilities.
Authority: Pub. L. 296, 84th Congress and 10 U.S.C. 133.
Source: 45 FR 84766, Dec. 23, 1980, unless otherwise noted.
32 CFR 46.1 Reissuance and purpose.
This rule reissues this part dated September 25, 1963, and implements
the Provisions of Executive Order 10646, November 23, 1955, wherein the
Secretary of Defense was designated the Federal Coordinator for
assigning responsibility and prescribing procedures to implement the
absentee voting program authorized by the Federal Voting Assistance Act
of 1955 (FVAA) and the Overseas Citizens Voting Rights Act of 1975
(OCVRA). This part assigns responsibility and delegates authority to
the Deputy Assistant Secretary of Defense (Administration) to carry out
this program on behalf of the Secretary of Defense.
32 CFR 46.2 Applicability and Scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, and the Defense Agencies (hereafter referred to as the
''DoD Components'').
(b) Other executive departments and agencies shall provide assistance
to this program, upon request, as provided by sections 1973cc-11 and
1973cc-13 of FVAA and 1973dd-2b of OCVRA. (Participating departments
and agencies shall adopt regulations and procedures that conform to this
part to the extent practicable, consistent with their organization
missions.)
32 CFR 46.3 Definitions.
For the purpose of administering the Federal Voting Assistance
Program, the following definitions apply:
(a) Federal Election. Any general, special, or primary election held
solely or in part for the purpose of selecting, nominating, or electing
any candidate for the office of President, Vice President, Presidential
Elector, Member of the United States Senate, Member of the United States
House of Representatives, Delegate from the District of Columbia,
Resident Commissioner from the Commonwealth of Puerto Rico, Delegate
from Guam, or Delegate from the Virgin Islands.
(b) State election. Any general, special, or primary election held
solely or in part for the purpose of selecting, nominating, or electing
any candidate for any state office, such as, governor, lieutenant
governor, or attorney general.
(c) Local election. An election which is less than a state election,
such as a municipal, county, or township election.
(d) Military Services. Refers to the Army, Navy, Air Force, Marine
Corps, and the Coast Guard.
(e) Uniformed Services. Refers to the Army, Navy, Air Force, Marine
Corps, Coast Guard, the Commissioned Corps of the U.S. Public Health
Service, and the Commissioned Corps of the National Oceanic and
Atmospheric Administration.
(f) Voter. A person in any of the following categories who is
authorized by law and who is registered to vote in any primary, special,
or general election.
(1) Members of the Uniformed Services or Merchant Marine in active
service and their spouses and dependents, wherever stationed.
(2) U.S. citizens temporarily residing outside the United States.
(3) Other U.S. citizens residing outside the United States not
covered by any other category mentioned above and whose intent to return
to their state of last residence may be uncertain.
(g) Voting residence. The legal residence or domicile in which the
voter is registered to vote.
32 CFR 46.4 Policy.
(a) To implement and administer the FVAA and OCVRA, as amended/DoD
Components and other participating federal departments and agencies
concerned with the voting program shall encourage their eligible voters
to participate in the voting process of the federal, state, and local
governments.
(b) The voting program shall be administered in such a manner as to
ensure that voters are provided all necessary voting information,
including voting age requirements, election dates, officers to be
elected, constitutional amendments, other ballot proposals, and absentee
registration and voting procedures.
(c) When practicable and compatible with operational conditions,
every voter shall be afforded an opportunity to register and vote in any
election for which the state of his or her voting residence has
established enabling laws and procedures.
(d) Voting in person or by absentee process shall be offered when
local conditions allow voters to prepare, send, and receive personal
material. However, a determination by those administering the voting
program that voting assistance cannot be rendered because it is
impractical and incompatible with military or federal operations shall
be conclusive, if this determination is made in good faith. (See
section 1973cc-24, FVAA.)
(e) Absentee voting procedures shall be prescribed in such a manner
as to safeguard the integrity and secrecy of the ballot. In addition,
all necessary steps shall be taken to prevent fraud and to protect
voters against coercion of any sort.
(1) No member of the Uniformed Services shall attempt to influence
any other member to vote or not to vote for any particular candidate, or
to require any member to march to any polling place or place of voting.
(See section 1973cc-25 of FVAA.)
(2) However, nothing in 46.4(e), above, shall be considered to
prohibit free discussion regarding political issues or candidates for
public office. (See enclosure 2 of DoD Directive 1344.10, /1/ Political
Activities by Members of the Armed Forces, September 23, 1969.)
(3) No person in the Uniformed Services of the United States shall
poll any other member to attempt to influence his or her vote before or
after he or she votes. (See enclosure 2 of DoD Directive 1344.10.)
(4) The provision in 46.4(c) above, shall not preclude making
surveys for statistical compilations to measure the extent of voting
participation of persons covered by the FVAA and OCVRA, as amended.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA
19120. Attention: Code 301.
32 CFR 46.5 Organization.
In accordance with E.O. 10646, authority and responsibility are
hereby delegated to the Deputy Assistant Secretary of Defense
(Administration) to carry out this program on behalf of the presidential
designee, the Secretary of Defense. The Deputy Assistant Secretary of
Defense (Administration) is authorized to act for the presidential
designee and to coordinate and facilitate such actions as may be
required to discharge federal responsibilities assigned in E.O. 10646,
FVAA, and OCVRA.
32 CFR 46.6 Responsibilities.
(a) The Deputy Assistant Secretary of Defense (Administration) shall:
(1) Manage, coordinate, or perform the tasks assigned to the
presidential designee in E.O. 10646, the FVAA, and OCVRA.
(2) Establish and maintain liaison with officials of the state
legislatures, and with state and local election law officials.
(3) Be the sole DoD representative for obtaining from each state
current voting information and disseminating it to other executive
departments, agencies, and DoD Components. In this regard, DoD
Components and participating departments and agencies may not contact
state voting officials about voting matters.
(4) Encourage and assist states and other U.S. jurisdictions to adopt
the mandatory and recommendatory provisions of the FVAA and OCVRA, and
advise them on the applicability of federal laws and regulations to
their individual electoral systems.
(5) Establish a DoD Voting Assistance Program to cover all eligible
voters of the Department of Defense (military and civilian) and their
eligible spouses and dependents, to assist these personnel to vote
either in person or by absentee process.
(6) Publicize the right of citizens to register and vote absentee
under the FVAA and OCVRA.
(7) Review and coordinate the informational and educational effort
directed toward all persons covered by the FVAA and OCVRA.
(8) Provide an ombudsman-type service for all persons covered by the
FVAA and OCVRA and for state and local election officials.
(9) Designate a week or day in September of each even-numbered year
for the purpose of encouraging military personnel and their dependents
to exercise their right to vote.
(10) Conduct a survey of U.S. citizens (military and civilian)
covered by the FVAA and OCVRA to gather necessary statistical
information to prepare the biennial report to the President and Congress
required by FVAA.
(b) Heads of DoD Components shall: (1) Facilitate the dissemination
of voting information and provide assistance to their own personnel,
including the services of an official authorized to administer oaths.
(i) In overseas areas, arrangements shall be made to provide absentee
voting information and assistance to voters described in 46.5(f)(1) and
(2).
(ii) To the extent practical, information and assistance shall also
be made available to voters described in 46.5(f)(3).
(2) Ensure command support at all levels for the Voting Assistance
Program.
(3) Designate a senior officer of general or flag rank in each
Military Service as the Senior Military Voting Representative to manage
Military Service voting programs.
(4) Designate voting officers or counselors at every level of command
who are trained to carry out their assigned responsibilities. Voting
officers or counselers should be readily available and equipped to give
personal assistance to voters for Federal, State and local elections.
In addition, any person who appears to need assistance in reading or
understanding any English language material relating to voting or voter
registration should receive immediate assistance in the appropriate
language.
(5) Ensure that voting information and related materials, such as the
Voting Assistance Guide, and the Federal Post Card Application form
(FPCA -- SF 76 Current Edition), are obtained and disseminated in a
timely manner. FPCAs are to be purchased in sufficient quantities to
furnish registration and ballot request support for all primary and
general elections.
(6) Ensure the in-hand delivery of FPCAs by August 15 to Uniformed
Services personnel, their spouses and eligible dependents, and civilian
employees of the Uniformed Services, their spouses and eligible
dependents, who are serving outside the territorial limits of the United
States.
(7) Ensure in-hand delivery of FPCAs by September 15 to Uniformed
Services personnel and their spouses and eligible dependents within the
United States, in accordance with FVAA.
(8) Require Inspectors General to include the Federal Voting Program
as an item for specific review at every level of command to ensure that
persons are informed and provided an opportunity to exercise their right
to vote, and that the command has adequately provided for voting
officers or counselers.
(9) Provide for continuing evaluation of command voting programs.
(10) Establish and publicize the availability of a special telephone
service, the ''Voting Action Line,'' to link unit voting officers or
counselors with their respective Uniformed Service Senior Military
Voting Representative or Voting Action Officer at the departmental
level. Emphasis shall be placed on providing rapid, accurate responses
and solutions to voting-oriented problems.
(11) During federal election years, ensure that all Armed Forces
personnel receive at least one briefing, training period, or information
period of instruction devoted to absentee registration and voting.
Emphasis should be placed on the availability of voting information,
supporting materials, personal assistance, and the importance of why
every vote counts.
(12) Ensure that telephone operators at every military installation
are provided with the names and office telephone numbers of unit or
installation voting officers or counselors.
(13) File an After-Action Report in the form specified by the
Director, Federal Voting Assistance Program.
(14) Conduct a Ballot Transmission Survey in the manner specified by
the Director, Federal Voting Assistance Program.
32 CFR 46.6 PART 47 -- ACTIVE DUTY SERVICE FOR CIVILIAN OR CONTRACTUAL
GROUPS
Sec.
47.1 Purpose.
47.2 Applicability and scope.
47.3 Definitions.
47.4 Policy.
47.5 Responsibilities.
47.6 Procedures.
Appendix A to Part 47 -- Instructions for Submitting Group
Applications Under Public Law 95-202
Appendix B to Part 47 -- The DoD Civilian/Military Service Review
Board and the Advisory Panel
Authority: 38 U.S.C. 106 note.
Source: 54 FR 39993, Sept. 29, 1989, unless otherwise noted.
32 CFR 47.1 Purpose.
This document:
(a) Revises 32 CFR part 47 and implements Public Law 95-202.
(b) Directs the Secretary of the Air Force to determine if an
established group of civilian employees or contract workers provided
service to the U.S. Armed Forces in a manner considered active military
service for Department of Veterans Affairs (VA) benefits.
(c) Establishes the DoD Civilian/Military Service Review Board and
the Advisory Panel.
(d) Establishes policy, assigns responsibilities, prescribes
application procedures for groups and individuals, and clarifies the
factors used to determine active duty (AD) service.
32 CFR 47.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the
Military Departments, and by agreement with the Department of
Transportation (DoT), the U.S. Coast Guard.
(b) Applies to any group application considered under Public Law
95-202 after September 11, 1989 and to any individual who applies for
discharge documents as a member of a group recognized by the Secretary
of the Air Force.
32 CFR 47.3 Definitions.
Armed conflict. A prolonged period of sustained combat involving
members of the U.S. Armed Forces against a foreign belligerent. The
term connotes more than a military engagement of limited duration or for
limited objectives, and involves a significant use of military and
civilian forces.
(a) Examples of armed conflict are World Wars I and II, and the
Korean and Vietnam Conflicts.
(b) Examples of military actions that are not armed conflicts are as
follows:
(1) The incursion into Lebanon in 1958, and the peacekeeping force
there in 1983 and 1984.
(2) The incursions into the Dominican Republic in 1965 and into Libya
in 1986.
(3) The intervention into Grenada in 1983.
Civilian or contractual group. An organization similarly situated to
the Women's Air Forces Service Pilots (a group of Federal civilian
employees attached to the U.S. Army Air Force in World War II). Those
organization members rendered service to the U.S. Armed Forces during a
period of armed conflict in a capacity that was then considered civilian
employment with the Armed Forces, or the result of a contract with the
U.S. Government, to provide direct support to the Armed Forces.
Recognized group. A group whose service the Secretary of the Air
Force administratively has determined to have been ''active duty for the
purposes of all laws administered by the Department of Veterans
Affairs''; i.e., VA benefits under 38 U.S.C. 101.
Similarly situated. A civilian or contractual group is similarly
situated to the Women's Air Forces Service Pilots when it existed as an
identifiable group at the time the service was being rendered to the
U.S. Armed Forces during a period of armed conflict. Persons who
individually provided support through civilian employment or contract,
but who were not members of an identifiable group at the time the
services were rendered, are not ''similarly situated'' to the Women's
Air Forces Service Pilots of World War II.
32 CFR 47.4 Policy.
(a) Eligibility for consideration. To be eligible to apply for
consideration under Public Law 95-202 and this part, a group must:
(1) Have been similarly situated to the Women's Air Forces Service
Pilots of World War II.
(2) Have rendered service to the United States in what was considered
civilian employment with the U.S. Armed Forces either through formal
Civil Service hiring or less formal hiring if the engagement was created
under the exigencies of war, or as the result of a contract with the
U.S. Government to provide direct support to the U.S. Armed Forces.
(3) Have rendered that service during a period of armed conflict.
(4) Consist of living persons to whom VA benefits can accrue.
(5) Not have already received benefits from the Federal Government
for the service in question.
(b) A determination of AD service that is considered to be equivalent
to active military service is made on the extent to which the group was
under the control of the U.S. Armed Forces in support of a military
operation or mission during an armed conflict. The extent of control
exerted over the group must be similar to that exerted over military
personnel and shall be determined by, but not necessarily limited to,
the following:
(1) Incidents favoring equivalency -- (i) Uniqueness of service.
Civilian service (civilian employment or contractual service) is a vital
element of the war-fighting capability of the Armed Forces. Civilian
service during a period of armed conflict is not necessarily equivalent
to active military service, even when performed in a combat zone.
Service must be beyond that generally performed by civilian employees
and must be occasioned by unique circumstances. For civilian service to
be recognized under this part, the following factors must be present:
(A) The group was created or organized by U.S. Government authorities
to fill a wartime need or, if a group was not created specifically for a
wartime need, but existed before that time, then its wartime mission was
of a nature to substantially alter the organization's prewar character.
(B) If the application is based on service in a combat zone, the
mission of the group in a combat zone must have been substantially
different from the mission of similar groups not in a combat zone.
(ii) Organizational authority over the group. The concept of
military control is reinforced if the military command authority
determines such things as the structure of the civilian organization,
the location of the group, the mission and activities of the group, and
the staffing requirements to include the length of employment and pay
grades of the members of the group.
(iii) Integration into the military organization. Integrated
civilian groups are subject to the regulations, standards, and control
of the military command authority.
(A) Examples include the following:
(1) Exchanging military courtesies.
(2) Wearing military clothing, insignia, and devices.
(3) Assimilating the group into the military organizational
structure.
(4) Emoluments associated with military personnel; i.e., the use of
commissaries and exchanges, and membership in military clubs.
(B) A group fully integrated into the military would give the
impression that the members of the group were military, except that they
were paid and accounted for as civilians.
(C) Integration into the military may lead to an expectation by
members of the group that the service of the group imminently would be
recognized as active military service. Such integration acts in favor
of recognition.
(iv) Subjection to military discipline. During past armed conflicts,
U.S. military commanders sometimes restricted the rights or liberties of
civilian members as if they were military members.
(A) Examples include the following:
(1) Placing members under a curfew.
(2) Requiring members to work extended hours or unusual shifts.
(3) Changing duty assignments and responsibilities.
(4) Restricting proximity travel to and from the military
installation.
(5) Imposing dress and grooming standards.
(B) Consequences for noncompliance might include a loss of some
privilege, dismissal from the group, or trial under military law. Such
military discipline acts in favor of recognition.
(v) Subjection to military justice. Military members are subject to
the military criminal justice system. During times of war, ''persons
serving with or accompanying an Armed Force in the field'' are subject
to the military criminal justice code. Those who were serving with the
U.S. Armed Forces may have been treated as if they were military and
subjected to court-martial jurisdiction to maintain discipline. Such
treatment is a factor in favor of recognition.
(vi) Prohibition against members of the group joining the armed
forces. Some organizations may have been formed to serve in a military
capacity to overcome the operation of existing laws or treaty or because
of a governmentally established policy to retain individuals in the
group as part of a civilian force. These factors act in favor of
recognition.
(vii) Receipt of military training and/or achievement of military
capability. If a group employed skills or resources that were enhanced
as the result of military training or equipment designed or issued for
that purpose, this acts toward recognition.
(2) Incidents not favoring equivalency -- (i) Submission to the U.S.
Armed Forces for protection. A group that seeks protection and
assistance from the U.S. Armed Forces and submits to military control
for its own well-being is not deemed to have provided service to the
Armed Forces equivalent to AD military service, even though the group
may have been as follows:
(A) Armed by the U.S. military for defensive purposes.
(B) Routed by the U.S. military to avoid the enemy.
(C) Instructed by the U.S. military for the defense of the group when
attacked by, or in danger of attack by, the enemy.
(D) Otherwise submitted themselves to the U.S. military for
sustenance and protection.
(ii) Permitted to resign. The ability of members to resign at will
and without penalty acts against military control. Penalty may be
direct and severe, such as confinement, or indirect and moderate, such
as difficult and costly transportation from an overseas location.
(iii) Prior recognition of group service. Recognition of a group's
service by agencies of State or local government does not provide
support in favor of recognition under this part.
(3) Status of group in international law. In addition to other
factors, consideration will be given to whether members of the group
were regarded and treated as civilians, or assimilated to the Armed
Forces as reflected in treaties, customary international law, judicial
decisions, and U.S. diplomatic practice.
(c) Reconsideration. Applications by groups previously denied a
favorable determination by the Secretary of the Air Force shall be
reconsidered under this part if the group submits evidence that is new,
relevant, and substantive. Any request that the DoD Civilian/Military
Service Review Board established hereunder (see 47.5(b)) determines
does not provide new, relevant, and substantive evidence shall be
returned to the applicant with the reasons for nonacceptance.
(d) Counsel Representation. Neither the Department of Defense nor
Department of Transportation shall provide representation by counsel or
defray the cost of such representation with respect to any matter
covered by this part.
32 CFR 47.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall:
(1) Appoint a primary and an alternate member in the grade of O-6 or
GM-15 or higher to the DoD Civilian/Military Service Review Board.
(2) Exercise oversight over the Military Departments and the U.S.
Coast Guard for compliance with this Directive and in the issuance of
discharge documents and casualty reports to members of recognized
groups.
(b) The Secretary of the Air Force, as the designated Executive Agent
of the Secretary of Defense for the administration of Public Law 95-202
shall:
(1) Establish the DoD Civilian/Military Service Review Board and the
Advisory Panel.
(2) Appoint as board president a member or employee of the Air Force
in grade O-6 or GM-15 or higher.
(3) Request the Secretary of Transportation to appoint an additional
voting member from the U.S. Coast Guard when the board is considering
the application of a group claiming active Coast Guard service.
(4) Provide a recorder and an assistant to maintain the records of
the board and administer the functions of this part.
(5) Provide nonvoting legal advisors and historians.
(6) Publish notices of group applications and other Public Law 95-202
announcements in the Federal Register.
(7) Consider the rationale and recommendations of the DoD
Civilian/Military Service Review Board.
(8) Determine whether the service rendered by a civilian or
contractual group shall be considered AD service to the U.S. Armed
Forces for all laws administered by the VA. The decision of the
Secretary of the Air Force is final. There is no appeal.
(9) Notify the following persons in writing when a group
determination is made (if the Secretary of the Air Force disagrees with
the rationale or recommendations of the board, the Secretary of the Air
Force shall provide the decision and reasons for it in writing to these
persons):
(i) The applicant(s) for the group.
(ii) The Secretary of the Department of Veterans Affairs.
(iii) The Secretary of the Army.
(iv) The Secretary of the Navy.
(v) The ASD (FM&P).
(vi) The Secretary of Transportation (when a group claims active
Coast Guard service).
(c) The Secretary of the Army, Secretary of the Navy, Secretary of
the Air Force, and Commandant of the Coast Guard shall:
(1) Appoint to the board a primary and an alternate member in the
grades of O-6 or GM-15 or higher from their respective Military
Services.
(2) Process applications for discharge documents from individuals
claiming membership in a recognized group in accordance with applicable
laws, Directives, the Secretary of the Air Force rationale and
instrument effecting a group determination, and any other instructions
of the board.
(3) Determine whether the applicant was a member of a recognized
group after considering the individual's evidence of membership and
verifying the service against available Government records.
(4) Issue a DD Form 214, ''Certificate of Release or Discharge from
Active Duty,'' and a DD Form 256, ''Honorable Discharge Certificate,''
or a DD Form 257, ''General Discharge Certificate,'' as appropriate,
consistent with DoD Instruction 1336.1 /1/ and DoD Directive 1332.14 /2/
and the implementing documents of the appropriate statutes of the
Military Department concerned or the DoT and the instructions of the DoD
Civilian/Military Service Review Board.
(5) Issue a DD Form 1300, ''Report of Casualty,'' in accordance with
DoD Instruction 1300.9 /3/ if a verified member was killed during the
period of AD service.
(6) Ensure that each DD Form 214, ''Certificate of Release or
Discharge from Active Duty,'' and each DD Form 1300, ''Report of
Casualty,'' have the following statement entered in the ''Remarks''
section:
This document, issued under Public Law 95-202 (38 U.S.C. 106 Note),
administratively establishes active duty service for the purposes of
Department of Veterans Affairs benefits.
(7) Determine the equivalent military pay grade, when required by the
Department of Veterans Affairs. For VA benefits, a pay grade is needed
only in cases when an individual was killed or received
service-connected injuries or disease during the recognized period of AD
service. A DD Form 1300 shall be issued with the equivalent pay grade
annotated for a member who died during the recognized period of service.
A DD Form 214 shall not include pay grade, unless the Department of
Veterans Affairs requests that a grade determination be given.
Determinations of equivalent grade shall be based on the following
criteria in order of importance:
(i) Officially recognized organizational grade or equivalent rank.
(ii) The corresponding rank for civilian pay grade.
(iii) If neither of the criteria in paragraphs (c)(7) (i) and (ii) of
this section, and applies, only one of three grades may be issued;
i.e., O-1, E-4, or E-1. Selection depends on the nature of the job
performed, the level of supervision exercised, and the military
privileges to which the individual was entitled.
(8) Adjudicate applicant challenges to the period of AD service,
characterization of service, or other administrative aspects of the
discharge documents issued.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: 1053, 5801 Tabor Avenue,
Philadelphia, PA 19120.
/2/ See footnote 1 to 47.5(c)(4).
/3/ See footnote 1 to 47.5(c)(4).
32 CFR 47.6 Procedures.
(a) Submitting group applications. Applications on behalf of a
civilian or contractual group shall be submitted to the Secretary of the
Air Force using the instructions in appendix A to this part.
(b) Processing group applications. (1) When received, the recorder
shall review the application for sufficiency and either return it for
more information or accept it for consideration and announce acceptance
in the Federal Register.
(2) The recorder shall send the application to the appropriate
advisory panel for historical review and analysis.
(3) When received, the recorder shall send the advisory panel's
report to the applicant for comment. The applicant's comments shall be
referred to the advisory panel if significant disagreement requires
resolution. Additional comments from the historians also shall be
referred to the applicant for comment.
(4) The DoD Civilian/Military Service Board shall consider the group
application, as established, in paragraph (a) and paragraphs (b) (1)
through (3) of this section.
(5) After the Secretary of the Air Force makes a decision, the
recorder shall notify the applicant of the decision and announce it in
the ''Federal Register.''
(c) Submitting individual applications. When a group is recognized,
individual members may apply to the appropriate Military Department or
to the Coast Guard for discharge documents. Submit applications on DD
Form 2168, ''Application for Discharge of Member or Survivor of Member
of Group Certified to Have Performed Active Duty with the Armed Forces
of the United States.'' An application on behalf of a deceased or
incompetent member submitted by the next of kin must be accompanied by
proof of death or incompetence.
32 CFR 47.6 Pt. 47, App. A
32 CFR 47.6 Appendix A to Part 47 -- Instructions for Submitting Group
Applications Under Public Law 95-202
A. In Submitting a Group Application: 1. Define the group to include
the time period that your group provided service to the U.S. Armed
Forces.
2. Show the relationship that the group had with the U.S. Armed
Forces, the manner in which members of the group were employed, and the
services the members of the group provided to the Armed Forces.
3. Address each of the factors in 47.4.
4. Substantiate and document the application. (The burden of proof
rests with the applicant.)
B. Send Completed Group Applications To: Secretary of the Air Force
(SAF/MRC), DoD Civilian/Military Service Review Board, Washington, DC
20330-1000.
32 CFR 47.6 Appendix B to Part 47 -- The DoD Civilian/Military Service
Review Board and the Advisory Panel
1. The board shall consist of a president selected from the
Department of the Air Force and one representative each from the OSD,
the Department of the Army, the Department of the Navy, the Department
of the Air Force, and the U.S. Coast Guard (when the group claims active
Coast Guard service). Each member shall have one vote except that the
president shall vote only to break a tie. The board's decision is
determined by majority vote. The president and two voting members shall
constitute a quorum.
2. The advisory panel shall act as a nonvoting adjunct to the board.
It shall consist of historians selected by the Secretaries of the
Military Departments and, if required, by the Secretary of
Transportation. The respective Military Departments and the DOT shall
ensure that the advisory panel is provided with administrative and legal
support.
1. The board shall meet in executive session at the call of the
president, and shall limit its reviews to the following:
a. Written submissions by an applicant on behalf of a civilian or
contractual group. Presentations to the board are not allowed.
b. Written report(s) prepared by the advisory panel.
c. Any other relevant written information available.
d. Factors established in this part for determining AD service.
2. The board shall return to the applicant any application that does
not meet the eligibility criteria established in 47.4(a). The board
only needs to state the reasons why the group is ineligible for
consideration under this part.
3. If the board determines that an application is eligible for
consideration under 47.4(a), the board shall provide, to the Secretary
of the Air Force, a recommendation on the AD service determination for
the group and the rationale for that recommendation that shall include,
but not be limited to, a discussion of the factors listed in 47.4.
a. No factors shall be established that require automatic
recognition. Neither the board nor the Secretary of the Air Force shall
be bound by any method in reaching a decision.
b. Prior group determinations made under Public Law 95-202 do not
bind the board or the Secretary of the Air Force. The board and the
Secretary of the Air Force fully and impartially shall consider each
group on its own merit in relation to the factors listed in section D.
of this Directive.
32 CFR 47.6 PART 48 -- RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
32 CFR 47.6 Subpart A -- General Information
Sec.
48.101 Purpose.
48.102 Definitions.
32 CFR 47.6 Subpart B -- Election of Options
48.201 Options.
48.202 Limitation on number of annuities.
48.203 Election of options.
48.204 Change or revocation of election.
48.205 Election form.
48.206 Information regarding elections.
32 CFR 47.6 Subpart C -- Designation of Beneficiaries
48.301 Designation.
48.302 Substantiating evidence regarding dependency and age of
dependents.
48.303 Condition affecting entitlement of widow or widower.
32 CFR 47.6 Subpart D -- Reduction of Retired Pay
48.401 Computation of reduction.
48.402 Effective date of reduction.
48.403 Payment of nonwithheld reduction of retired pay.
48.404 Ages to be used.
48.405 Action upon removal from temporary disability retired list.
48.406 Withdrawal and reduction of percentage or amount of
participation.
32 CFR 47.6 Subpart E -- Annuity
48.501 General information.
48.502 Effective date of annuity.
48.503 Claims for annuity payments.
48.504 Payment to children.
48.505 Establishing eligibility of annuitants.
48.506 Recovery of erroneous annuity payments.
48.507 Restriction on participation.
48.508 Certain 100 percent disability retirements.
32 CFR 47.6 Subpart F -- Miscellaneous
48.601 Annual report.
48.602 Organization.
48.603 Correction of administrative deficiencies.
48.604 Transition and protective clauses.
Authority: Sec. 1444, 70A Stat. 111; 10 U.S.C. 1444.
Source: 34 FR 12092, July 18, 1969, unless otherwise noted.
32 CFR 47.6 Subpart A -- General Information
32 CFR 48.101 Purpose.
The purpose of the Retired Serviceman's Family Protection Plan is to
permit each member of the uniformed services to elect to receive a
reduced amount of any retired pay which may be awarded him as a result
of service in his uniformed service in order to provide an annuity
payable after his death (while entitled to retired pay) to his widow,
child, or children, subject to certain limitations specified in the law
and elaborated in the regulations in this part.
32 CFR 48.102 Definitions.
(a) The terms ''Plan'' or ''RSFPP'' as hereinafter used means the
Retired Serviceman's Family Protection Plan (formerly called the
Uniformed Services Contingency Option Act).
(b) The term ''uniformed services'' means the Army, Navy, Air Force,
Marine Corps, Coast Guard, Commissioned Corps of Environmental Science
Services Administration, and Commissioned Corps of Public Health
Service.
(c) The term ''member'' means a commissioned officer, commissioned
warrant officer, warrant officer, nurse, flight officer, or a person in
an enlisted grade (including an aviation cadet) of any of the uniformed
services, and a person in any of these categories who is entitled to or
is in receipt of retired pay, except persons excluded in title 10, U.S.
Code, section 1431(a), as amended.
(d) The term ''widow'' includes ''widower'' and refers to the lawful
spouse of the member on the date of retirement with pay.
(e) The term ''child'' means, in all cases, a member's child, who is
living on the date of retirement of the member with pay and who meets
the following requirements:
(1) A legitimate child under 18 years of age and unmarried.
(2) A stepchild, under 18 years of age and unmarried, who is in fact
dependent on the member for support (see paragraphs (f) and (g) of this
section).
(3) A legally adopted child, under 18 years of age and unmarried.
(4) A child, as defined above, who is 18 or more years of age and
unmarried, and who is incapable of self-support because of being
mentally defective or physically incapacitated if that condition existed
prior to reaching age 18.
(5) A child as defined above, who is at least 18, but under 23 years
of age and unmarried, who is pursuing a full-time course of study or
training in a high school, trade school, technical or vocational
institute, junior college, college, university, or comparable recognized
educational institution. (Applicable only in the case of members who
retired on or after Nov. 1, 1968).
(6) A child loses his eligibility for an annuity under this part if
he is adopted by a third person before the parent-member's death. His
eligibility is not affected if he is adopted by a third person after the
parent-member's death (36 Comp. Gen. 325).
(f) The term ''stepchild'' means a child of a member's spouse by a
former marriage. The stepchild relationship terminates upon the divorce
of the parent spouse, but not upon the death of the parent spouse.
(g) The term ''in fact dependent'' means that the stepchild must be
dependent on the member for over half of his or her support.
(h) The term ''retirement'' means retirement with eligibility to
receive retired pay.
(i) The term ''retired pay'' includes retired, retirement, equivalent
and retainer pay awarded as a result of service in the uniformed
services.
(j) The term ''reduced retired pay'' means the retired pay remaining
after the cost of participation in RSFPP has been subtracted.
(k) The term ''department concerned'' means (1) the Department of the
Army with respect to the Army, (2) the Department of the Navy with
respect to the Navy and Marine Corps, (3) the Department of the Air
Force with respect to the Air Force, (4) the Department of
Transportation with respect to the Coast Guard, (5) the Department of
Commerce with respect to the Environmental Science Services
Administration, and (6) the Department of Health, Education, and Welfare
with respect to the Public Health Service.
(l) The term ''dependent'' means the prospective annuitants described
in paragraphs (d) and (e) of this section.
(m) The term ''Board of Actuaries'' means the Government Actuary in
the Department of the Treasury, the Chief Actuary of the Social Security
Administration, and a member of the Society of Actuaries appointed by
the President to advise the Secretary of Defense on the administration
of the Plan.
(n) The term ''Joint Board'' means representatives of the uniformed
services appointed under the provisions of 48.602.
(o) The term ''years of service'' means years of service creditable
in the computation of basic pay.
(p) The term ''election'' means the choice of options made by the
member under the RSFPP. This term includes a modification of a previous
election or an election submitted after a revocation of a previous
option(s) elected.
(q) The term ''elections in effect'' means valid elections existing
on the day of retirement.
(r) A recognized educational institution is defined as a high school,
trade school, technical or vocational institute, junior college,
college, university, or comparable recognized educational institution
which meets one or more of the following criteria:
(1) It is operated or directly supported by the United States, or a
State, or local governmental agency.
(2) It is accredited by a nationally recognized or State recognized
accrediting agency.
(3) It is approved as an educational institution by a State or local
governmental agency.
(4) Its credits are accepted for transfer (or for admission) by three
or more accredited schools on the same basis as credits from an
accredited school.
32 CFR 48.102 Subpart B -- Election of Options
32 CFR 48.201 Options.
As provided in 48.203, a member may elect one or more of the
following annuities. The amount must be specified at time of election,
and may not be for more than 50 per centum nor less than 12 1/2 per
centum of his retired pay, in no case may be less than a $25 monthly
annuity be elected. If the election is made in terms of dollars, the
amount may be more than 50 per centum of the retired pay that he would
receive if he were to retire at the time of election; however, if such
elected amount exceeds 50 per centum of his retired pay when he does
retire, it shall be reduced to an amount equal to such 50 per centum.
Also, if the dollar amount elected is less than 12 1/2 per centum of his
retired pay when he does retire, it shall be increased to an amount
equal to such 12 1/2 per centum.
(a) Option 1 is an annuity payable to or on behalf of his widow, the
annuity to terminate upon her death or remarriage.
(b) Option 2 is an annuity payable to or on behalf of his surviving
child or children as defined in 48.102, the annuity to terminate when
there ceases to be at least one such surviving child eligible to receive
the annuity. Each payment under such annuity shall be paid in equal
shares to or on behalf of the surviving children remaining eligible at
the time the payment is due. A member who had this option in effect on
the date of retirement, and who retired on or after November 1, 1968,
may apply to the Secretary concerned to have a child (other than a child
described in 48.102(e)(4)) who is at least 18 but less than 23 years of
age considered not to be an eligible beneficiary under this paragraph
(b) or 48.202. Normally such applications will be approved.
(c) Option 3 is an annuity to or on behalf of his widow and surviving
child or children. Such annuity shall be paid to the widow until death
or remarriage, and thereafter each payment under such annuity shall be
paid in equal shares to or on behalf of the surviving children remaining
eligible at the time the payment is due. A member may provide for
allocating, during the period of the surviving spouse's eligibility, a
part of the annuity under this Subpart B for payment to those of his
surviving children who are not children of that spouse. The sum
allotted will not exceed the equitable share for which such children
would be eligible after the death of the widow.
(d) When no eligible beneficiary remains to benefit from the option
elected, the member's retired pay will be restored (except as provided
in 48.604, for certain members retired before Aug. 13, 1968). All
elections on file on Aug. 13, 1968, for members not entitled to receive
retired pay will be considered to include the restoration feature with
attendant cost factors being applied at time of retirement. For the
purpose of this paragraph, a child (other than a child described in
48.102(e)(4)) who is at least 18 but less than 23 years of age, and is
not pursuing a course of study as defined in 48.102(e)(5), shall be
considered an eligible beneficiary unless an approved application by the
member pursuant to 48.201(b) that such a child is not to be considered
an eligible beneficiary is in effect (for members who retire on or after
Nov. 1, 1968).
32 CFR 48.202 Limitation on number of annuities.
When a member desires to provide both the annuity provided by Option
1 and Option 2, he may elect amounts that, in total, meet the
limitations specified in 48.201. The cost of each annuity, and the
amount of each annuity shall be determined separately. A member may not
elect the combination of Options 1 and 3 or Options 2 and 3 in any case.
The combined amount of the annuities may not be more than 50 per centum
nor less than 12 1/2 per centum of his retired pay. In no case may less
than a $25 per month combined annuity be provided.
32 CFR 48.203 Election of options.
(a) A member who has completed less than 19 years of service as
defined in 48.102(o) may elect to receive a reduced amount of retired
pay in order to provide one or more of the annuities as specified in
48.201 and 48.202, payable after his death while entitled to retired pay
to or on behalf of his surviving widow, child, or children. To be
effective, the election by such a member must be dated, signed,
witnessed, and delivered to appropriate service officials, or postmarked
not later than midnight on the day in which he completes 19 years of
service. Such an election will become effective immediately upon
subsequent retirement. The latest election, change, or revocation made
in accordance with this subsection will, if otherwise valid, be the
effective election, unless superseded by a change as provided in
paragraph (b) of this section.
(b) Except as provided in paragraph (c) of this section, a member who
fails or declines to make an election before completion of 19 years of
service may make an election after that time. However, unless the
election is made at least 2 years prior to the date the member becomes
entitled to receive retired pay, it will not be effective. The same
applies to subsequent changes or revocations made prior to retirement.
(c) If an election, revocation, or change was made prior to August
13, 1968, the 19-year and 2-year provisions are automatically in effect
on August 13, 1968, for members who were not entitled to retired pay on
such date, unless the member applies under 48.604(d) to remain under
the provisions of the law prior to August 13, 1968. In this case the
''18 years of service'' and ''3 years prior to receipt of retired pay''
rules will apply.
(d) A member retired for physical disability on or after November 1,
1968 who is awarded retired pay prior to completion of 19 years of
service may make an election which is subject to the restrictions set
forth in 48.507. The election by such member shall be made before the
first day for which he is entitled to retired pay. Elections made under
this paragraph prior to November 1, 1968, must be made by the member
retiring for physical disability prior to completing 18 years.
(e) If, because of military operations, a member is assigned to an
isolated station, or is missing, interned in a neutral country, captured
by a hostile force, or beleaguered or besieged, and for that reason is
unable to make an election before completing 19 years of service, he may
make the election within 1 year after he ceases to be assigned to that
station or returns to the jurisdiction of his service as the case may
be, and such election shall become effective immediately upon subsequent
retirement.
(f) A member to whom retired pay is granted retroactively, and who is
otherwise eligible to make an election, may make the election within 90
days after receiving notice that such pay has been granted him.
(g) Whenever a member is determined to be mentally incompetent by
medical officers of the uniformed services or of the Veterans
Administration, or is adjudged mentally incompetent by a court of
competent jurisdiction and because of such mental incompetency is
incapable of making any election within the time limitations prescribed
by the Plan, the Secretary of the Department concerned may make the
appropriate election on behalf of such member upon request of the
spouse, or if there be no spouse, by or on behalf of the child or
children of such member. If such member is subsequently determined to
be mentally competent by the Veterans Administration or a court of
competent jurisdiction, he may, within 180 days after such determination
or judgment, change or revoke the election made on his behalf. In such
a case, the change or revocation will be effective on the date of the
member's request for such change or revocation. Deductions previously
made shall not be refunded.
(h) All elections on file on August 13, 1968, for members not
entitled to receive retired pay shall be subject to the provisions of
this section unless the member makes the application specified in
48.604(d).
(i) A person who was a former member of the armed forces on November
1, 1953, and who is granted retired pay after that date, may, at the
time he is granted that pay, make an election as provided in 48.201.
32 CFR 48.204 Change or revocation of election.
(a) A change of election is a change in the amount of the annuity or
annuities under any option, or a change in any option or options
selected. A revocation is a cancellation of a previous election and
constitutes a withdrawal from coverage under the Plan.
(b) A member may change or revoke his election as often as he desires
prior to the completion of 19 years of service. Such a change or
revocation must be dated, signed, witnessed, and delivered to
appropriate service officials, or postmarked not later than midnight on
the day in which the member completes 19 years of service. The latest
election, change, or revocation which is submitted in accordance with
this subsection will be effective at retirement.
(c) A member who desires to make an election or change or revoke his
election after he has completed 19 years of service may do so prior to
his retirement. However, such an election, change or revocation will be
effective only if at least 2 years elapse between the date of the
election, change, or revocation and the date of eligibility to receive
retired pay.
(d) A revocation will not prohibit the filing of a new election at a
later date which will become valid under applicable validation
provisions.
(e) A member may, on or after November 1, 1968, at any time prior to
his retirement, change or revoke his election (provided the change does
not increase the amount of the annuity elected) to reflect a change in
the marital or dependency status of the member of his family caused by
death, divorce, annulment, remarriage, or acquisition of a child, if
such change or revocation is made within 2 years of such change in
status.
(f) Notification of a change in family status is not a change of
election.
(g) All changes and revocations on file on August 13, 1968, for
members not entitled to retired pay shall be subject to the provisions
of this section unless the member makes the application specified in
48.604(d).
32 CFR 48.205 Election form.
The form for making election after October 31, 1968, is prescribed as
Election of Options, Retired Serviceman's Family Protection Plan, DD
Form 1688. /1/ It will be submitted as directed herein. All copies
will be signed, and any otherwise complete, signed copy, when properly
submitted, may be used to substantiate the fact of election,
modification, revocation, or change in family status.
/1/ Filed as part of the original document. Copies may be obtained
from Military Personnel Office.
32 CFR 48.206 Information regarding elections.
(a) All members of the Reserve component who will have accumulated
sufficient service to be eligible for retired pay at age 60, will be
counseled on the Plan before reaching their 57th birth dates in order to
insure that valid elections can be made prior to their 58th birth dates.
An election, modification, or revocation submitted subsequent to
attaining age 58 will be valid only if it is made and submitted at least
2 years prior to the first date for which retired pay is granted.
(b) It is the responsibility of the department concerned to provide
election forms and to promulgate information concerning the benefits of
the Plan to all members so as to allow a timely election.
(c) Members retiring for physical disability prior to the completion
of 19 years of service will, prior to retirement, be counseled and
furnished information concerning the operation of the Plan.
32 CFR 48.206 Subpart C -- Designation of Beneficiaries
32 CFR 48.301 Designation.
(a) All legal beneficiaries described in 48.102 must be named at the
date of retirement pursuant to the option elected. Although a member
without dependents may make an election, it will not be effective unless
he has eligible dependents at the time of his retirement.
(b) When a change in family status occurs prior to retirement which
would effect a change as provided in 48.204(e), new DD Form 1688,1
Election of Options, Retired Servicemen's Family Protection Plan, should
be filed to evidence such change.
1See footnote 1 to 48.205.
32 CFR 48.302 Substantiating evidence regarding dependency and age of
dependents.
At the time of submitting the election, or prior to retirement, the
member must indicate his wife's and youngest child birth date as
applicable to the option elected. At or before the time of his
retirement, he must submit proof of final dissolution of prior
marriages, if any, both for himself and his spouse. The age of the
dependents must be substantiated by a birth certificate or other
competent evidence. The birth date of a member must be verified by his
service record. All required substantiating evidence must be at the
disbursing office which would normally pay the member retired pay or
retainer pay immediately following retirement so as to permit the
establishment of accurate pay accounts and to prevent the creation of
indebtedness or overpayments.
32 CFR 48.303 Condition affecting entitlement of widow or widower.
A member may have a different lawful spouse at the time of retirement
from the lawful spouse he had at the time of election. The lawful
spouse at the time of retirement is the spouse eligible for an annuity
at the time of member's death. Divorce of the member will remove the
former spouse as a prospective annuitant.
32 CFR 48.303 Subpart D -- Reduction of Retired Pay
32 CFR 48.401 Computation of reduction.
(a) The reduction to be made in the retired pay of a member who has
made an election shall be computed by the uniformed service concerned in
each individual case, based upon tables of factors prepared by the Board
of Actuaries. The computation shall be based upon the applicable table
in effect on the date of retirement.
(b) An adjustment may be made in the reduction of retired pay upon
the finding of an administrative error or a mistake of fact (see
48.603).
(c) If a member elects to be covered by option 3, and on the date he
is awarded retired pay has no children eligible to receive the annuity,
or has only a child or children aged 18-22 (other than a child described
in 48.102(e)(4) and elects, at retirement, that such child or children
shall not be considered to be eligible beneficiaries, he shall have his
costs computed as though he had elected option 1. If he elects option 3,
and on the date he is awarded retired pay has no wife eligible for the
annuity, he shall have his costs computed as though he had elected
option 2.
(d) If a member elects option 3, and after he becomes entitled to
retired pay, there is no eligible spouse because of death or divorce,
upon the retired member's application, no deductions from his retired
pay shall be made after the last day of the month in which there ceases
to be an eligible spouse. Children otherwise eligible will continue to
be eligible for the annuity in event of the member's death. No amounts
by which the member's retired pay is reduced before that date may be
refunded to or credited on behalf of that person.
(e) The amount of reduction in retired pay and the annuity payable
established for each individual at the time of his retirement shall
remain unaltered except as provided in 48.203(g), paragraphs (b) and
(d) of this section, and 48.406, regardless of future pay increases or
decreases.
32 CFR 48.402 Effective date of reduction.
The effective date of reduction in retired pay will be the effective
date of retirement with pay. The reduction in retired pay will be
terminated on the date the member ceases to be entitled to retired pay
or on the first day of the month following that in which there is no
eligible beneficiary (for exception to this rule see 48.604).
32 CFR 48.403 Payment of nonwithheld reduction of retired pay.
(a) A member of a uniformed service who is entitled to retired pay
and has made an election shall, during any period in which he is not
receiving retired pay (including periods of active duty), deposit the
amount which would have been withheld from his retired pay had he been
receiving that pay.
(b) Such deposit will be payable to Treasurer of the United States
and shall be forwarded monthly to the disbursing office which would
normally pay the member his retired pay.
(c) The disbursing office will in all cases inform the member of the
amount to be deposited and when such deposits are to be made.
(d) In the event deposits are not made within 30 days of the due
date, the disbursing office will inform the member concerned that he is
delinquent from such due date and thereafter his designated
beneficiaries will not be eligible for the annuity provided under the
Plan until the arrears have been paid. The notification of delinquency
will advise the member that 15 additional days have been granted to him
in which to remit his deposit, and that if the arrears are not deposited
within that period, the member will be charged interest to include the
first day of delinquency. In no case will the expiration date of the 15
days exceed a date later than 45 days from the date the deposit was due.
The interest will be computed monthly and the rate will be that used in
computing the cost tables in effect on the date of the member's
retirement. If such member later becomes in receipt of retired pay, any
arrears with compound interest will be withheld.
32 CFR 48.404 Ages to be used.
Ages to be used for calculating reductions of retired pay will be the
ages of the member and his eligible dependents on their nearest birth
dates as of the date of the member's retirement.
32 CFR 48.405 Action upon removal from temporary disability retired
list.
(a) Any member on the temporary disability retired list established
pursuant to title 10, United States Code, Chapter 61, who has elected to
receive reduced retired pay in order to provide one or more of the
annuities specified in the Plan, and who is subsequently removed from
the list due to any reason other than permanent retirement, shall have
refunded to him a sum which represents the difference between the amount
by which his retired pay has been reduced and the cost of an amount of
term insurance which is equal to the protection provided his dependents
during the period he was on the temporary disability retired list.
(b) If the member concerned is returned to active duty, his election
as previously made will continue or he may change or revoke the election
as provided in 48.204.
(c) Time creditable for the purpose of the two year interval required
to make a change, revocation or new election valid includes service
before, during, and after temporary disability retirement. (See
48.203 and 48.204 and Comptroller Decision B-144158, Dec. 23, 1960.)
Active duty after removal from a temporary disability retired list is a
necessity in such a case.
32 CFR 48.406 Withdrawal and reduction of percentage or amount of
participation.
A retired member who is participating in the Plan may revoke his
election and withdraw from participation, or he may reduce the amount of
the survivor annuity; however, an approved withdrawal or reduction will
not be effective earlier than the first day of the seventh month
beginning after the date his application is received by the Finance
Center controlling his pay record. (For special rules covering
participating members retired before Aug. 13, 1968, without option 4,
see 48.604.) No application for reduction will be approved which
requests a change in options. A request to reduce an annuity or to
withdraw from the Plan is irrevocable, and a retired member who
withdraws may never again participate in the Plan. Approval of a
request for a reduction will not be made when such reduction results in
an annuity of less than 12 1/2 per centum of the member's retired pay or
less than a $25 monthly annuity. The new cost, after such reduction in
survivor annuity, will be computed from the applicable cost table at the
time of retirement. No amounts by which a member's retired pay is
reduced may be refunded to, or credited on behalf of, the member by
virtue of an application made by him under this section.
32 CFR 48.406 Subpart E -- Annuity
32 CFR 48.501 General information.
Except as provided in 48.506(a), no annuity payable under the Plan
shall be assignable, or subject to execution, levy, attachment,
garnishment, or other legal process. Annuities payable under this Plan
shall be in addition to any pensions or other payments to which the
beneficiaries may now or hereafter be entitled under other provisions of
law (except as provided in 48.507), and may not be considered as income
under any law administered by the Veterans Administration, except for
the purpose of title 38 U.S. Code, section 415(g) and chapter 15.
32 CFR 48.502 Effective date of annuity.
All annuities payable under this Plan except those payable to
beneficiaries described in 48.102(e)(5) shall accrue from the first day
of the month in which the retired member dies and shall be due and
payable not later than the 15th day of each month following that month
and in equal monthly installments thereafter, except that no annuity
shall accrue or be paid for the month in which entitlement to that
annuity terminates.
32 CFR 48.503 Claims for annuity payments.
Upon official notification of the death of a retired member who has
elected under the Plan, the department concerned shall forward to the
eligible surviving beneficiaries the necessary information and forms (DD
Form 768. Application for Annuity Under Retired Serviceman's Family
Protection Plan) for making application for annuity payments. Such
information shall include the place to which the application should be
forwarded and to which questions regarding annuity payments should be
addressed.
32 CFR 48.504 Payment to children.
(a) Annuities for a child or children will be paid to the child's
guardian, or if there is no guardian, to the person(s) who has care,
custody, and control of the child or children.
(b) Annuities payable to or on behalf of an eligible child as defined
in 48.102(e)(5) accrue as of the first day of the month in which --
(1) The member (upon whose retired pay the annuity is based) dies if
the eligible child's 18th birthday occurs in the same or a preceding
month, or
(2) The 18th birthday of an eligible child occurs if the member (upon
whose retired pay the annuity is based) died in a preceding month, or
(3) A child first becomes (or again becomes) eligible, if that
eligible child's 18th birthday and the death of the member (upon whose
retired pay the annuity is based) both occurred in a preceding month or
months. An eligible child under this paragraph might become ineligible
at age 18 and again become eligible by furnishing proof of pursuit of a
full time course of study or training as enumerated in 48.102(e)(5).
32 CFR 48.505 Establishing eligibility of annuitants.
(a) Eligibility for the annuity will be established by such evidence
as may be required by the department concerned.
(b) If a child as defined in 48.102(e)(4) is a designated annuitant,
the department concerned shall require proof that the incapacity for
self-support existed prior to the child's reaching age 18. Proof that
continued incapacitation exists will be required every 2 years after the
child passes the age of 18 years, except in a case where medical
prognosis indicates recovery is impossible.
(c) If a child as defined in 48.102(e)(5) is a designated annuitant,
as specified in 48.504(b), the department concerned shall require proof
from the institution at least semiannually that the child is pursuing a
full-time course of training as prescribed. For the purpose of proving
eligibility, a child is considered to be pursuing a full-time course of
study or training during an interval between school periods that does
not exceed 150 days if he has demonstrated to the satisfaction of the
department concerned that he has a bona fide intention of commencing,
resuming, or continuing to pursue a full-time course of study or
training in a recognized educational institution immediately after that
interval.
32 CFR 48.506 Recovery of erroneous annuity payments.
(a) The Secretary of the Department concerned is empowered to use any
means provided by law to recover amounts of annuities erroneously paid
to any individual under the Plan. He may authorize such recovery by
adjustment in subsequent payments to which the individual is entitled.
(b) There need be no recovery when in the judgment of the Secretary
of the Department concerned and the Comptroller General of the United
States, the individual to whom the erroneous payment was made is without
fault and recovery would be contrary to the purpose of the Plan or would
be against equity and good conscience.
32 CFR 48.507 Restriction on participation.
(a) If a person who has made an election under the Plan retires with
a physical disability before the completion of 19 years of service and
then dies in retirement, his widow and eligible children can receive
monthly survivor annuities only if they are not eligible for Dependency
and Indemnity Compensation payments from the Veterans Administration.
If either the widow or children are eligible for dependency and
indemnity compensation payments, then payment of annuities under the
Plan may not be made to any member of the family. If the retired
member's death was not service connected and his widow or children are
not eligible for payments from the Veterans Administration, they may
receive the provided annuity payments under the Plan.
(b) If the beneficiaries on whose behalf the election was made are
restricted as in paragraph (a) of this section, from receiving
annuities, the amounts withheld from the elector's retired pay as a
result of the election will be refunded to the beneficiaries, less the
amount of any annuity paid, and without interest.
(c) Upon notification of the death of the member in such a case, the
department concerned will take the following actions:
(1) Notify the Central Office of the Veterans Administration of the
death of the member and request that the department concerned be advised
if an award is made under chapter 11 or 13, title 38 U.S. Code.
(2) Request the Central Office of the Veterans Administration to
forward to the eligible widow and/or children an application form for
survivor benefits under chapter 11 or 13, title 38 U.S. Code, with
instructions for completion and submission.
32 CFR 48.508 Certain 100 percent disability retirement.
An election filed on or after August 13, 1968 is not effective if the
member dies within 30 days following retirement from a disability of 100
per centum (under the standard schedule of rating disabilities in use by
the Veterans Administration) for which he was retired under chapter 61,
title 10 U.S. Code, unless --
(a) Such disability was the result of injury or disease received in
line of duty as a direct result of armed conflict, or
(b) His widow or children are not entitled to dependency and
indemnity compensation under chapter 13, title 38 U.S. Code.
32 CFR 48.508 Subpart F -- Miscellaneous
32 CFR 48.601 Annual report.
Information and data for the preparation of the annual report of the
Board of Actuaries will be compiled by the Office of the Secretary of
Defense after promulgation of appropriate instructions to each of the
uniformed services. These instructions will be in consonance with
Executive Order 10499 directing the Secretary of Defense to administer
the provisions of the law.
32 CFR 48.602 Organization.
(a) The Joint Board for the Retired Serviceman's Family Protection
Plan shall consist of a principal and alternate member for each of the
uniformed services appointed by the Department Secretary concerned.
Alternate members will be authorized to act in the absence of the
principal. The Board shall meet on call of the Chairman. A quorum
shall consist of representatives of at least four of the participating
services.
(b) The Board shall establish procedures for the orderly conduct of
business to be approved by the Assistant Secretary of Defense (Manpower
and Reserve Affairs).
(c) The duties of the Board will include but not be limited to the
following:
(1) Making recommendations to the Secretary of Defense for:
(i) Changes to the Executive order delegating to him functions
conferred on the President by law,
(ii) Changes to these regulations,
(iii) Changes to the law, and
(iv) Measures to insure uniform operating policies.
(2) Promulgating tables of annuity costs as prescribed by the Board
of Actuaries.
(3) Promulgating cost of term insurance as required in 48.405.
(d) The Chairmanship of the Joint Board will be designated by the
Assistant Secretary of Defense (Manpower and Reserve Affairs).
32 CFR 48.603 Correction of administrative deficiencies.
(a) The Secretary of the Department concerned may correct any
election or any change or revocation of an election when he considers it
necessary to correct an administrative error. Information on such
corrections shall be compiled by each department for inclusion in the
report prescribed by 48.601.
(b) Except when procured by fraud, a correction under the section is
final and conclusive on all officers of the United States.
(c) Information on all corrections to elections under this Plan which
are made under title 10, section 1552, United States Code, shall be
compiled and this information forwarded to the Board of Actuaries for an
actuarial analysis.
32 CFR 48.604 Transition and protective clauses.
(a) A retired member who is participating in the Plan without
inclusion of former option 4, which provided for restoration of retired
pay when no eligible beneficiary remained in his election, may before
September 1, 1969, elect to have that option included in his election.
The election to include such option 4 becomes effective on the first day
of the month following the month in which that election was made. The
retired member must on or before the effective date agree to pay to the
Treasury both the total additional amount to cover the option had it
been effective when he retired, and the interest which would have
accrued on the additional amount up to the effective date of the new
option 4. No such additional amount (except interest) shall accrue for
months after the first month for which the individual had no eligible
beneficiary. However, if undue hardship or financial burden would
result, payments may be made in from 2 to 12 monthly installments when
the monthly amount involved is $25 or less, or in from 2 to 36
installments when the monthly amounts involved exceed $25. No amounts
by which a member's retired pay was reduced may be refunded to, or
credited on behalf of, the retired member by virtue of an application
made by him under this section. A retired member who does not make the
additional election provided under this section within the time limits
will not be allowed to reduce an annuity or withdraw from participation
in the Plan as provided by 48.406.
(b) Members who have elected and are not yet retired will
automatically participate under the provisions of 48.201.
(c) Elections in effect on August 13, 1968, will remain under the
cost tables applicable on the date of the member's retirement.
(d) Any member who has filed an election, modification, or revocation
prior to August 13, 1968, may before September 1, 1969, submit a written
application to the Secretary concerned requesting that such election,
modification, or revocation remain under the time-of-election provisions
of the law applicable on the date it was filed.
32 CFR 48.604 PART 50 -- FULFILLING THE MILITARY SERVICE OBLIGATION
Sec.
50.1 Purpose and applicability.
50.2 The military service obligation.
32 CFR 50.1 Purpose and applicability.
This part implements the Military Selective Service Act of 1967 (50
App. U.S.C. 451 et seq.); the Armed Forces Reserve Act of 1952, as
amended; and various sections of title 10 U.S. Code as outlined herein,
by prescribing uniform policy with respect to fulfillment of the
statutory military service obligation. The provisions of this part
apply to the Military Departments.
(Sec. 301, 80 Stat. 379; 5 U.S.C. 301; sec. 6(d)(1), 62 Stat. 611;
50 App. U.S.C. 456(d)(1); sec. 651, 70A Stat. 27; 10 U.S.C. 651)
(33 FR 15339, Oct. 16, 1968)
32 CFR 50.2 The military service obligation.
(a) Statutory provisions -- (1) The 8-year obligation -- (i) Section
6(d) (1) of the Selective Service Act. Persons commissioned in a
reserve component upon completion of officer training programs specified
in section 6(d)(1) of that Act who perform initial
active-duty-for-training of 3 to 6 months in lieu of 2 or more years of
active duty are required to serve in a reserve component until the
eighth anniversary of the receipt of such commission.
(ii) Section 262 of the Armed Forces Reserve Act of 1952, as amended.
Persons without prior military service between the ages of 17 and 18
1/2 who, prior to August 1, 1963, enlisted directly in the Ready Reserve
in a reserve component of an armed force, other than in the Army
National Guard or the Air National Guard, with a requirement to perform
initial active-duty-for-training of 3 to 6 months.
(2) The 6-year obligation. General -- Section 651(a) of title 10
U.S. Code -- ''Each male person who, after August 9, 1955, becomes a
member of an armed force before his twenty-sixth birthday * * * shall
serve in the armed forces for a total of six years, unless he is sooner
discharged because of personal hardship under regulations prescribed by
the Secretary of Defense * * *. Any part of such service that is not
active duty or is active duty for training shall be performed in a
reserve component.''
(b) Definitions. For the purpose of administering paragraph (a) of
this section, the terms ''inducted,'' ''enlisted,'' and ''appointed''
refer to initial entry of male personnel into any of the armed forces,
including a reserve component thereof.
(c) Transfer to a reserve component. Qualified individuals affected
by the provisions of paragraph (a) of this section, are required to
serve a total period of 8 or 6 years, as the case may be, from the date
of their induction, enlistment, or appointment. Persons who have a
portion of their obligation remaining upon release from active training
and service, and who are determined by the Secretary of the Military
Department concerned to be physically and mentally qualified for
enlistment or appointment in a reserve component shall be transferred
without discharge from military status.
(d) Fulfillment of the military service obligation. (1) Periods of
Ready Reserve and Standby Reserve service within the total military
service obligation are governed by Part 115 of this subchapter and
sections 269 and 511 (b) and (d) of title 10 U.S. Code.
(2) Upon completion of the military service obligation, the
individual shall be discharged or otherwise separated unless he is
otherwise obligated to remain in the military service.
(3) The military service obligation is considered terminated upon a
discharge for the purpose of complete separation from military status.
It is not considered terminated upon discharge or other type of
separation for the purpose of immediate entry or reentry in the same or
any other component of the armed forces, or for the purpose of entry
into an officers' training program in which the individual has military
status. Additional service performed after such a discharge or other
type or separation will be counted toward fulfillment of such
obligation.
(4) An individual may, upon his written application, be discharged
from the Reserve, irrespective of having performed the total required
period of service, for the purpose of taking final vows in a religious
order. Such application shall be accompanied by certification, signed
by an appropriate official of the religious order concerned, that
preparations for final acceptance cannot proceed further until
separation from the military service is accomplished.
(5) An enlisted member of an armed force who accepts appointment to a
Service academy as a cadet or midshipman, or as a Reserve Officers'
Training Corps cadet or midshipman under the provisions of section 2107
of title 10 U.S. Code, shall not be separated from enlisted status by
reason of such appointment.
(i) The period of time so served shall be counted toward fulfillment
of the military service obligation in the event the appointment is
terminated prior to graduation of the cadet or midshipman fails to
accept a commission if offered. This credit would not alter the
authority for ordering such individuals to active duty as provided in
DoD Directive 1332.23, ''Service Academy Separations'', May 9, 19681013
and Part 127 of this subchapter. (Directive 1332.23 delineates certain
procedures to be followed in the case of Service academy disenrollees.)
(ii) Under sections 971, 2107, 3682, 6116, and 8682 of title 10 U.S.
Code, such service may not be counted toward fulfillment of an officer's
military service obligation.
(6) A Service academy cadet or midshipman who initially entered an
armed force in such status and whose appointment is terminated prior to
graduation, or who fails to accept a commission if offered, will be
processed in accordance with the provisions of DoD Directive 1332.23.
Credit toward fulfillment of the military service obligation will be
granted such disenrollees only if they are serving in an enlisted
status.
(7) Enlisted service for the period covered by Reserve Officers'
Training Corps advanced training may not be counted toward fulfillment
of a military service obligation of an officer appointed under section
2106 of title 10 U.S. Code. An officer appointed under section 2107 of
title 10 U.S. Code may not be credited with service as a cadet or
midshipman, or with concurrent enlisted service.
(8) An individual whose enlistment or appointment is declared void on
the grounds of minority and who is released pursuant to such action
shall not, as the result of such enlistment or appointment, be
considered to have acquired a military service obligation; however,
service rendered under a void minority enlistment when characterized as
honorable by the Secretary of the Military Department concerned, shall
be creditable toward fulfilling any subsequent statutory military
service obligation acquired by the individual. Such credit would not
alter the terms of any subsequent enlistments for specific periods,
e.g., direct enlistments in the Ready Reserve under the provisions of
section 511 of title 10 U.S. Code.
(9) Discharge or other separation of an individual from an armed
force prior to the date of completion of a military service obligation
will be effected at the discretion of the Secretary of the Military
Department concerned. Provisions of Part 125 of this subchapter, shall
apply in cases of discharge by reason of personal or community hardship,
prior to completion of a military service obligation.
(10) Interservice transfers of reservists who have a military service
obligation shall be accomplished as prescribed in Part 123 of this
subchapter.
(11) An individual who is enlisted or appointed in the Ready Reserve
of any armed force, and who subsequently fails to participate
satisfactorily in Reserve training will not be discharged by reason
thereof. In such cases, provisions of Parts 101 and 127 of this
subchapter will apply. An individual who is inducted under provisions
of section 6(c)(2)(D) of the Selective Service Act of 1967 and who
completes the required period of active training and service shall
continue to hold his appointment or enlistment contract to serve as a
Reserve, and shall be required to fulfill the terms thereof unless
discharged from the obligation by the Secretary of the Military
Department concerned.
(Sec. 301, 80 Stat. 379; 5 U.S.C. 301; sec. 6(d)(1), 62 Stat. 611;
50 App. U.S.C. 456(d)(1); sec. 651, 70A Stat. 27; 10 U.S.C. 651)
(33 FR 15339, Oct. 16, 1968)
0131Filed as part of original. Copies available from The Naval
Supply Depot, 5801 Tabor Avenue, Philadelphia, Pa. 19120, Attention:
Code 300.
32 CFR 50.2 PART 51 -- THE DEPARTMENT OF DEFENSE MILITARY EQUAL
OPPORTUNITY PROGRAM
Sec.
51.1 Purpose.
51.2 Applicability and scope.
51.3 Definitions.
51.4 Policy.
51.5 Responsibilities.
51.6 Information requirements.
Appendix A to Part 51 -- Military Equal Opportunity Reporting
Requirements
Appendix B to Part 51 -- Organizations and Functions
Authority: Pub. L. 92-261, sec. 301, 80 Stat. 379 (5 U.S.C. 301,
10 U.S.C. 133).
Source: 54 FR 46227, Nov. 2, 1989, unless otherwise noted.
32 CFR 51.1 Purpose.
This part:
(a) Regulates the Department of Defense Military Equal Opportunity
(EO) Program and assigns responsibilities for ensuring DoD-wide
compliance with the broad program objectives outlined in DoD Human Goals
Charter, March 21, 1988.
(b) Provides for education and training in EO and human relations.
(c) Prescribes the functions of the Defense Equal Opportunity Council
(DEOC), the Defense Equal Opportunity Management Institute (DEOMI), and
the Board of Visitors (BOV) to DEOMI.
32 CFR 51.2 Applicability and scope.
This part:
(a) Applies to all military members of the Office of the Secretary of
Defense (OSD), the Military Departments (including their National Guard
and Reserve components), the Joint Staff, the Unified and Specified
Commands, the Defense Agencies, and the DoD Field Activities (hereafter
referred to collectively as ''DoD Components''). The term ''Military
Services,'' as used herein, refers to the Army, Navy, Air Force, and
Marine Corps.
(b) Applies to DoD contracted organizations that provide services to
military personnel and their families.
(c) Does not apply to civilian personnel, except as noted in
paragraph (b) of this section.
32 CFR 51.3 Definitions.
Affirmative Action. Methods used to achieve the objectives of the EO
program. Processes, activities, and systems designed to identify,
eliminate, prevent, and work to overcome the effects of discriminatory
treatment as it affects the upward mobility and quality of life for DoD
personnel.
Discrimination. Illegal treatment of a person or group based on
handicap, race, color, national origin, age, religion, or gender.
DoD Military Equal Opportunity (EO) Program. The DoD-wide military
program of equal opportunity that is accomplished through efforts by DoD
Components. It provides an environment in which every member of the
total force is ensured an opportunity to rise to as high a level of
responsibility as possible in the military profession, dependent only on
merit, fitness, and capability.
Equal Opportunity (EO). The right of all persons to participate in
and benefit from programs and activities for which they are qualified.
These programs and activities shall be free from social, personal, or
institutional barriers that prevent people from rising to as high a
level of responsibility as possible. Persons shall be evaluated only on
individual merit, fitness, and capability, regardless of race, color,
gender, national origin, age, or handicap except as prescribed by
statute, or DoD/Service policy.
Ethnic Group. A segment of the population that possesses common
characteristics and a cultural heritage based to some degree on the
following:
(a) Common geographic origin;
(b) Race;
(c) Language or dialect;
(d) Religious faith or faiths;
(e) Shared traditions, values, or symbols;
(f) Literature, folklore, or music;
(g) An internal sense of distinctiveness; and/or
(h) An external perception of distinctiveness.
Ethnic and Racial Categories. The basic racial and ethnic categories
for DoD reporting are defined as follows:
(a) American Indian or Alaskan Native. A person having origins in
the original peoples of North America.
(b) Asian or Pacific Islander. A person having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian
subcontinent, or the Pacific Islands. This area includes China, India,
Japan, Korea, the Philippine Islands, and Samoa.
(c) Black (Not of Hispanic Origin). A person having origins in any
of the original peoples of Africa.
(d) Hispanic. A person having origins in any of the original peoples
of Mexico, Puerto Rico, Cuba, or Central or South America, or of other
Spanish cultures, regardless of race.
(e) White (Not of Hispanic Origin). A person having origins in any
of the original peoples of Europe, North Africa, or the Middle East.
National origin. An individual's or ancestor's place of origin.
Also applies to a person who has the physical, cultural, or linguistic
characteristics of a national group.
Race. A division of humans identified by the possession of traits
that are transmissible by descent and that are sufficient to
characterize as a distinctive human type.
Religion. A personal set or institutionalized system of attitudes,
moral or ethical beliefs, and practices that are held with the strength
of traditional religious views, characterized by ardor and faith, and
generally evidenced through specific religious observances.
Sexual Harassment. A form of sex discrimination that involves
unwelcomed sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature when:
(a) Submission to or rejection of such conduct is made either
explicitly or implicitly a term or condition of a person's job, pay, or
career, or
(b) Submission to or rejection of such conduct by a person is used as
a basis for career or employment decisions affecting that person, or
(c) Such conduct interferes with an individual's performance or
creates an intimidating, hostile, or offensive environment.
Any person in a supervisory or command position who uses or condones
implicit or explicit sexual behavior to control, influence, or affect
the career, pay, or job of a military member or civilian employee is
engaging in sexual harassment. Similarly, any military member or
civilian employee who makes deliberate or repeated unwelcomed verbal
comments, gestures, or physical contact of a sexual nature is also
engaging in sexual harassment.
32 CFR 51.4 Policy.
It is DoD policy to:
(a) Support the military EO program as an integral element in total
force readiness, as defined in the Secretary of Defense Memorandum and
enforce at all levels of activity the EO provisions of this part in
developing operating EO policies and programs.
(b) Use the chain of command to promote, support, and enforce the
military EO program. The chain of command is the primary and preferred
channel for correcting discriminatory practices and for ensuring that
human relations and EO matters are enacted.
(c) Ensure the Military Services (to include the Reserve components)
maintain military EO and affirmative action programs. Discrimination
that adversely affects persons or groups based on race, color, religion,
gender, age, or national origin, and that is not supported legally, is
contrary to good order and discipline, and is counterproductive to
combat readiness and mission accomplishment. Discrimination of this
nature shall not be condoned or tolerated.
(d) Provide education and training in EO and human relations at
installation and fleet unit commands, Military Service accession points,
and throughout the professional military education (PME) system, as part
of the overall effort to achieve equal opportunity.
(e) Provide for an environment that is free from sexual harassment by
eliminating this form of discrimination in the Department of Defense.
(f) Ensure that all on-base activities and, to the extent of the
ability of DoD, any off-base activities available to military personnel
are open to all military personnel and their authorized family members
regardless of race, color, religion, age, physical or mental handicap,
gender, or national origin, as called for by the DoD Human Goals
Charter.
(1) Organizations or activities that do not meet this requirement
shall be denied the use of military facilities and resources in
accordance with 32 CFR part 237. This policy applies equally to those
organizations that may discriminate based on the content of their
constitutions, bylaws, rules or regulations, as well as to those which,
in the judgment of the responsible commander(s), are engaging in de
facto discrimination regardless of the content of their constitutions,
bylaws, rules or regulations.
(2) Organizations that use on-base facilities, whether on a
reimbursable basis or otherwise, must satisfy the responsible area or
activity commander that they do not discriminate through their actual
membership practices or in any of their activities.
(g) Oppose discrimination in off-base housing directed against
military personnel and their authorized family members. Each commander
shall take actions to overcome such discrimination and to impose
off-limits sanctions in housing cases, as required by 32 CFR part 301.
(h) Impose, as required, the off-limits sanction according to the
Armed Forces Disciplinary Control Board as stated in the Joint
Regulation, in cases of discrimination involving places of public
accommodations outside military installations.
32 CFR 51.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall:
(1) Represent and advise the Secretary of Defense in military EO
matters consistent with 32 CFR part 384.
(2) Chair the Defense Equal Opportunity Council.
(3) Provide guidance on developing all DoD programs to ensure equal
opportunity for military personnel in the total force.
(4) Develop, execute, and monitor the effectiveness of military EO
policies in support of national security objectives.
(5) Ensure that DoD Components fulfill the requirements of this part.
(6) Provide policy direction to DEOMI and select the Commandant of
DEOMI from Military Service nominations.
(7) Establish categories and monitor specific goals to be included in
the affirmative action programs and annual military EO assessments of
each DoD Component.
(8) Review and act on (or refer to appropriate Military Service) all
complaints of discrimination arising under this part (to include sexual
harassment) referred to the Secretary of Defense.
(9) Ensure fair, impartial and timely investigation, resolution, and
follow-up of all complaints of discrimination arising under this part.
(10) Establish a program to recognize individuals and organizations
for outstanding achievement in one or more of the major EO areas covered
by this part.
(b) The Heads of DoD Components shall be responsible for equal
opportunity within their respective jurisdictions (to include their
Reserve components) and shall:
(1) Ensure that all DoD EO policies and programs are understood and
executed at all levels of military command.
(2) Establish affirmative action programs that identify and resolve
EO problems through formulating, maintaining, and reviewing affirmative
action plans (AAPs) with established objectives and milestones and
including accountability in personnel management consistent with DoD
Instruction 1350.3. /1/
(3) Forward a fiscal year report to the ASD(FM&P) outlining the
progress being made to achieve the established military EO objectives of
the AAP. This report shall be due each year on February 1, and is
described further in DoD Instruction 1350.2.
(4) Establish policies that include specific actions to be taken
against any individual who commits an act of discrimination, as defined
in 51.3.
(5) Rewrite documents and change practices that discriminate against
military personnel based on race, religion, color, gender, or national
origin. This requirement does not apply to those Military Service
documents that implement statutes or DoD/Service policy requiring
different treatment of military personnel based on age or gender.
(6) Establish policies and procedures to prevent sexual harassment
and to ensure that appropriate action is taken against individuals who
commit sexual harassment offenses, in accordance with the Secretary of
Defense Memorandums.
(7) Ensure that all military personnel, including command-selectees
and flag and general officers, receive training in equal opportunity,
human relations, and prevention of sexual harassment on a recurring
basis, and at all levels of PME.
(8) Establish and fill sufficient full-time staff positions and
allocate sufficient resources to conduct all EO programs. Equal
opportunity staff personnel shall be placed at a level that enables them
to communicate effectively the goals and objectives of the program and
obtain the understanding, support, and commitment of the organization's
leaders.
(9) Ensure that all discrimination complaints are investigated in a
fair, impartial, and prompt manner.
(10) Ensure that consideration of EO program support is included in
the instructions that guide rating officials in preparing efficiency
reports and/or evaluations on their subordinates.
(11) Develop management information and reporting systems to
determine the progress for each AAP goal consistent with DoD Instruction
1350.3.
(12) Establish EO awards programs to recognize individuals and
organizational units for outstanding achievement in any of the EO areas
covered by this part or Military Service-unique programs.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 51.6 Information requirements.
An annual report is required and is assigned Report Control Symbol
DD-FM&P(A)1760. Reporting requirements are contained in appendix A to
this part and further amplified in DoD Instruction 1350.3.
32 CFR 51.6 Appendix A to Part 51 -- Military Equal Opportunity
Reporting Requirements
Each DoD Component shall submit an annual Military Equal Opportunity
Assessment (MEOA) for the period ending September 30 to the ASD(FM&P) no
later than February 1 of the following year. The report shall include
the following information:
A. An executive summary, providing an overall assessment of each DoD
Component's AAPs and EO Programs.
B. An assessment of each affirmative action in the following 10
categories shall be made an enclosure to the report. The assessment in
each category should include quantitative data in the basic race/ethnic
classifications for officers and enlisted personnel broken down by
gender.
1. Recruiting/Accessions
2. Composition
3. Promotions
4. Professional Military Education (PME)
5. Separations
6. Augmentation/Retention
7. Assignments
8. Discrimination/Sexual Harassment Complaints
9. Utilization of Skills
10. Discipline
C. Requirements are further explained in DoD Instruction 1350.3.
32 CFR 51.6 Appendix B to Part 51 -- Organizations and Functions
1. The Defense Equal Opportunity Council (DEOC) shall:
a. Coordinate policy and review the military and civilian EO
programs.
b. Monitor progress of program elements.
c. Advise the Secretary of Defense on policies for EO matters.
d. Assist in developing policy guidance for education and training in
EO and human relations for DoD personnel.
2. The DEOC is Chaired by the Assistant Secretary of Defense/Force
Management and Personnel (ASD(FM&P)). Other members are the Assistant
Secretary of Defense for Reserve Affairs (ASD(RA)); the Assistant
Secretary of the Air Force for Manpower and Reserve Affairs
(ASAF(M&RA)); the Assistant Secretary of the Army for Manpower and
Reserve Affairs (ASA(MRA)); the Assistant Secretary of the Navy for
Manpower and Reserve Affairs (ASN(M&RA)); and the Director of
Administration and Management, Office of the Secretary of Defense (DA&M,
OSD).
3. DEOMI is a DoD Field Activity Operating Under the Supervision,
Direction, and Policy Guidance of the ASD(FM&P). Located as a tenant on
an established military installation, DEOMI shall be supported
administratively and logistically by the Military Department responsible
for the host installation.
a. The mission of DEOMI is to enhance combat and/or operational
readiness through improved leadership by functioning as the DoD center
of excellence in all facets of military EO and human relations education
and training to include the following:
(1) Providing primary training for all DoD military and civilian
personnel assigned to military EO billets (to include the U.S. Coast
Guard), and staff officers who directly manage EO and human relations
programs.
(2) Performing EO and human relations research in conjunction with
the Military Services and acting as a clearing house to monitor and
disseminate research findings on EO and human relations.
(3) Providing assistance or consultation services in DoD
organizations in developing specific curricula and training for EO and
human relations education, and particular training for the PME systems
within the Military Services; and serving in an advisory capacity to
other Agencies in education, industry, and the private sector, as
determined by the Commandant.
(4) Disseminating educational training materials to assist EO
advisors and human relations instructors in remaining current in the EO
subject area and in otherwise developing professionally.
(5) Performing special research-related projects in support of the
DEOC.
(6) Operating and administering the Defense EO Electronic Bulletin
Board to support EO advisors and specialists throughout the Military
Services.
(7) Serving as a focal point and depository for data and research on
the EO climate and sexual harassment in the Military Services.
b. The following applies to appointments to DEOMI:
(1) The Commandant shall be appointed by the ASD(FM&P). This
position shall rotate among representatives nominated by the Departments
of the Army, Navy, and Air Force.
(2) The ASD(FM&P) shall establish criteria for assigning officers and
enlisted personnel from the Military Departments, including the Coast
Guard, National Guard, and Reserves to faculty and staff positions at
DEOMI.
4. The DEOMI BOV is an Advisory Body to the ASD(FM&P). The Board is
established by charter and serves as an external source of expertise to
ensure periodic review of the objectives, policies, and operations of
DEOMI.
32 CFR 51.6 PART 53 -- WEARING OF THE UNIFORM
Sec.
53.1 Purpose.
53.2 Policy.
Authority: 5 U.S.C. 301, 10 U.S.C. 772.
32 CFR 53.1 Purpose.
This part prescribes limitations on wearing of the uniform by members
of the Armed Forces, and establishes policy with respect to wearing of
the uniform by former members of the Armed Forces.
(35 FR 1236, Jan. 30, 1970)
32 CFR 53.2 Policy.
(a) Members of the Armed Forces (including retired members and
members of reserve components). The wearing of the uniform is
prohibited under any of the following circumstances:
(1) At any meeting or demonstration which is a function of, or
sponsored by an organization, association, movement, group, or
combination of persons which the Attorney General of the United States
has designated, pursuant to E.O. 10450 as amended, as totalitarian,
fascist, communist, or subversive, or as having adopted a policy of
advocating or approving the commission of acts of force or violence to
deny others their rights under The Constitution of the United States, or
as seeking to alter the form of Government of the United States by
unconstitutional means.
(2) During or in connection with the furtherance of political
activities, private employment or commercial interests, when an
inference of official sponsorship for the activity or interest could be
drawn.
(3) Except when authorized by competent Service authority, when
participating in activities such as public speeches, interviews, picket
lines, marches, rallies or any public demonstrations (including those
pertaining to civil rights), which may imply Service Sanction of the
cause for which the demonstration or activity is conducted.
(4) When wearing of the uniform would tend to bring discredit upon
the Armed Forces.
(5) When specifically prohibited by regulations of the department
concerned.
(b) Former members of the Armed Forces. (1) Unless qualified under
another provision of this part or under the provisions of 10 U.S.C. 772,
former members who served honorably during a declared or undeclared war
and whose most recent service was terminated under honorable conditions
may wear the uniform in the highest grade held during such war service
only upon the following occasions and in the course of travel incidents
thereto:
(i) Military funerals, memorial services, weddings, and inaugurals.
(ii) Parades on national or state holidays; or other parades or
ceremonies of a patriotic character in which any active or reserve U.S.
military unit is taking part.
(2) Wearing of the uniform or any part thereof at any other time or
for any other purpose is prohibited.
(c) Medal of Honor holders. Persons who have been awarded the Medal
of Honor may wear the uniform at their pleasure except under the
circumstances set forth in paragraph (a) of this section.
(35 FR 1236, Jan. 30, 1970)
32 CFR 53.2 PART 54 -- ALLOTMENTS FOR CHILD AND SPOUSAL SUPPORT
Sec.
54.1 Purpose.
54.2 Applicability and scope.
54.3 Definitions.
54.4 Policy.
54.5 Responsibilities.
54.6 Procedures.
Authority: 15 U.S.C. 1673, 37 U.S.C. 101, 42 U.S.C. 665.
Source: 51 FR 23755, July 1, 1986, unless otherwise noted.
32 CFR 54.1 Purpose.
Under section 65 of Title 42, United States Code, this part provides
policy on statutorily required child or child and spousal support
allotments, assigns responsibilities, and prescribes procedures.
32 CFR 54.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense (OSD)
and the Military Departments. The term ''Military Services,'' as used
herein, refers to the Army, Navy, Air Force, and Marine Corps.
(b) Its provisions cover members of the Military Services on extended
active duty. This does not include a member under a call or order to
active duty for a period of less than 30 days.
32 CFR 54.3 Definitions.
(a) Authorized person. Any agent or attorney of any state having in
effect a plan approved under part D of title IV of the Social Security
Act (42 U.S.C. 651-664), who has the duty or authority to seek recovery
of any amounts owed as child or child and spousal support (including,
when authorized under the state plan, any official of a political
subdivision); and the court that has authority to issue an order
against a member for the support and maintenance of a child or any agent
of such court.
(b) Child support. Periodic payments for the support and maintenance
of a child or children, subject to and in accordance with state or local
law. This includes, but is not limited to, payments to provide for
health care, education, recreation, and clothing or to meet other
specific needs of such a child or children.
(c) Designated official. The representative of the Military Service
concerned who is authorized to receive and to process notices under this
part. See 54.6(f) for a listing of designed officials.
(d) Notice. A court order, letter, or similar documentation issued
by an authorized person providing notification that a member has failed
to make periodic support payments under a support order.
(e) Spousal support. Periodic payments for the support and
maintenance of a spouse or former spouse, in accordance with state and
local law. It includes, but is not limited to, separate maintenance,
alimony while litigation continues, and maintenance. Spousal support
does not include any payment for tranfer of property or its value by an
individual to his or her spouse or former spouse in compliance with any
community property settlement, equitable distribution of property, or
other division of property between spouses or former spouses.
(f) Support order. Any order providing for child or child and
spousal support issued by a Court of competent jurisdiction within any
state, territory, or possession of the United States, including Indian
tribal courts, or in accordance with administrative procedures
established under state law that affords substantial due process and is
subject to judicial review.
32 CFR 54.4 Policy.
The Department of Defense is obligated by 42 U.S.C. 665 to require
child, or child and spousal, support allotments from the pay and
allowances of a member who has failed to make periodic payments under a
support order in a total amount equal to the support payable for 2
months or longer. The member's allotment shall be established by the
Secretary of the Military Department concerned, or the Secretary's
designee, provided all requirements of this part have been met.
32 CFR 54.5 Responsibilities.
(a) The Assistant Secretary of Defense (Comptroller) (ASD(C)) shall
provide guidance, monitor compliance with this part, and have the
authority to change or modify the procedures in 54.6.
(b) The Secretaries of the Military Departments shall comply with
this part.
32 CFR 54.6 Procedures.
(a) Notice to designated official. (1) An authorized person shall
send to the designated official of the member's Military Service a
signed notice that includes:
(i) A statement that delinquent support payments equal or exceed the
amount of support payable for 2 months under a support order, and a
request that an allotment be initiated pursuant to 42 U.S.C. 665.
(ii) A certified copy of the support order.
(iii) The amount of the monthly support payment. Such amount may
include arrearages, if a support order specifies the payment of such
arrearages. The notice shall indicate how much of the amount payable
shall be applied toward liquidation of the arrearages.
(iv) A statement that delinquent support payments are more than 12
weeks in arrears, if appropriate.
(v) Sufficient information identifying the member to enable
processing by the designated official. The following information is
requested:
(A) Full name;
(B) Social Security Number;
(C) Military Service (Army, Navy, Air Force, or Marine Corps).
(vi) The full name and address of the allottee. The allottee shall
be an authorized person, the authorized person's designee, or the
recipient named in the support order.
(vii) Any limitations on the duration of the support allotment.
(viii) A certificate that the official sending the notice is an
authorized person.
(2) The notice shall be sent by mail or delivered in person to the
appropriate designated official of the Military Service. The designated
official shall note the date and time of receipt on the notice.
(3) The notice is effective when it is received in the office of the
designated official.
(4) When the notice does not sufficiently identify the member, it
shall be returned directly to the authorized person with an explanation
of the deficiency. However, before the notice is returned, if there is
sufficient time, an attempt shall be made to inform the authorized
person who sent the notice that it will not be honored unless adequate
information is supplied.
(5) Upon receipt of effective notice of delinquent support payments,
together with all required supplementary documents and information, the
designated official shall identify the member from whom moneys are due
and payable. Under 54.6(d), the allotment shall be established in the
amount necessary to comply with the support order and to liquidate
arrearages if provided by a support order when the maximum amount to be
allotted under this provision, together with any other moneys withheld
for support from the member, does not exceed:
(i) Fifty percent of the member's disposable earnings for any month
in which the member asserts by affidavit or other acceptable evidence
that he or she is supporting a spouse, dependent child, or both, other
than a party in the support order. When the member submits evidence,
copies shall be sent to the authorized person, together with
notification that the member's support claim shall be honored. If the
support claim is contested by the authorized person, that authorized
person may refer this matter to the appropriate court or other authority
for resolution.
(ii) Sixty percent of the member's disposable earnings for any month
in which the member fails to assert by affidavit or other acceptable
evidence that he or she is supporting a spouse, dependent child, or
both.
(iii) Regardless of the limitations above, an additional 5 percent of
the member's disposable earnings shall be withheld when the notice
states that the total amount of the member's support payments is 12 or
more weeks in arrears.
(b) Disposable Earnings. (1) In determining disposable earnings for
a member assigned within the contiguous United States, include the
following payments. For definitions of these items, see DoD 5000.12-M.
(i) Basic pay (including Military Service academy cadet and
midshipman pay).
(ii) Basic allowance for quarters for members with dependents, and
for members without dependents in grade E-7 or higher.
(iii) Basic allowance for subsistence for commissioned and warrant
officers.
(iv) Special pay for physicians, dentists, optometrists, and
veterinarians.
(v) Submarine pay.
(vi) Flying pay (all crew members).
(vii) Diving pay.
(viii) Proficiency pay or special duty assignment pay.
(ix) Career sea pay.
(2) To determine disposable earnings for a member assigned outside of
the contiguous United States, the following shall supplement the
payments listed in paragraph (b)(1) of this section:
(i) Foreign duty pay.
(ii) Special pay for duty subject to hostile fire (applies only to
members permanently assigned in a designated area).
(iii) Family separation allowances (only under certain type-II
conditions).
(iv) Special pay for overseas extensions
(c) Calculations of disposable earnings shall exclude:
(1) Amounts owed by the member to the United States.
(2) Amounts mandatorily withheld for the U.S. Soldiers' and Airmen's
Home.
(3) Fines and forfeitures ordered by a court-martial or by a
commanding officer.
(4) Federal and state employment and income taxes withheld to the
extent that the amount deducted is consistent with the member's tax
liability.
(5) Deductions for the Servicemen's Group Life Insurance coverage.
(6) Advances of pay received by the member before receipt of notice
(see paragraph (c)(1) of this section) that may be due and payable by
the member at some future date. Requests for advances received after
notice for a statutorily required support allotment shall be reduced by
the amount of the statutorily required support allotment.
(7) Other amounts required by law to be deducted.
(d) Notice to member and member's Commanding Officer.
(1) As soon as possible, but not later than 15 calendar days after
the date of receipt of notice, the designated official shall send to the
member, at his or her duty station, written notice:
(i) That notice has been received from an authorized person,
including a copy of the documents submitted.
(ii) Of the maximum limitations provided in 15 U.S.C. 1673, with a
request that the member submit supporting affidavits or other
documentation necessary for determining the applicable percentage
limitation.
(iii) That the member may submit supporting affidavits or other
documentation as evidence that the information contained in the notice
is in error.
(iv) That by submitting supporting affidavits or other necessary
documentation, the member consents to the disclosure of such information
to the party requesting the support allotment.
(v) Of the amount or percentage that will be deducted if the member
fails to submit the documentation necessary to enable the designated
official to respond to the notice within the prescribed time limits.
(vi) That a consultation with a judge advocate or legal officer will
be provided by the Military Service, if possible, and that the member
should immediately contact the nearest legal services office.
(vii) Of the date that the allotment is scheduled to begin.
(2) The designated official shall notify the member's commanding
officer, or designee, of the need for consultation between the member
and a judge advocate or legal officer. The designated official shall
provide the member's commanding officer, or designee, with a copy of the
notice and other legal documentation served on the designated official.
(3) The Military Services shall provide the member with the
following:
(i) When possible, an in-person consultation with a judge advocate or
legal officer of the Military Service concerned, to discuss the legal
and other factors, involved in the member's support obligation and
failure to make payment.
(ii) Copies any other documents submitted with the notice.
(4) The member's commanding officer, or designee, shall confirm in
writing to the designated official within 30 days of notice that the
member received a consultation concerning the member's support
obligation and the consequences of failure to make payments, or when
appropriate, of the inability to arrange such consultation and the
status of continuing efforts to fulfill the consultation requirement.
(5) If, within 30 days of the date of the notice, the member has
furnished the designated official affidavits or other documentation
showing the information in the notice to be in error, the designated
official shall consider the member's response. The designated official
may return to the authorized person, without action, the notice for a
statutorily required support allotment together with the member's
affidavit and other documentation, if the member submits substantial
proof of error, such as:
(i) The support payments are not delinquent.
(ii) The underlying support order in the notice has been amended,
superseded, or set aside.
(e) Payments. (1) Except as provided in paragraph (e)(3) the
Secretary of the Military Department concerned, or designee, shall make
the support allotment by the first end-of-month payday after the
designated official is notified that the member has had a consultation
with a judge advocate or legal officer, or that a consultation was not
possible, but not later than the first end-of-month payday after 30 days
have elapsed from the date of the notice to the member. The Military
Services will not be required to vary their normal military allotment
payment cycle to comply with the notice.
(2) If several notices are sent with respect to the same member,
payments shall be satisfied on a first-come, first-served basis within
the amount limitations in paragraph (a)(5) of this section.
(3) When the member identified in the notice is found not to be
entitled to money due from or payable by the Military Service, the
designated official shall return the notice to the authorized person and
shall advise him or her that no money is due from or payable by the
Military Service to the named individual. When it appears that amounts
are exhausted temporarily or otherwise unavailable, the authorized
person shall be told why, and for how long, any money is unavailable, if
known. If the member separates from active duty, the authorized person
shall be informed that the allotment is discontinued.
(4) Payment of statutorily required allotments shall be enforced over
other voluntary deductions and allotments when the gross amount of pay
and allowances is not sufficient to permit all authorized deductions and
collections.
(5) The authorized person or allottee shall notify the designated
official promptly if the operative court order upon which the allotment
is based is vacated, modified, or set aside. The designated official
shall also be notified of any events affecting the allottee's
eligibility to receive the allotment, such as the former spouse's
remarriage, if a part of the payment is for spousal support, and notice
of a change in eligibility for child support payments under
circumstances of death, emancipation, adoption, or attainment of
majority of a child whose support is provided through the allotment.
(6) An allotment established under this Directive shall be adjusted
or discontinued upon notice from the authorized person.
(7) Neither the Department of Defense, nor any officer or employee
thereof, shall be liable for any payment made from moneys due from, or
payable by, the Department of Defense to any individual pursuant to
notice regular on its face, if such payment is made in accordance with
this Part. If a designated official receives notices based on a support
order which, on its face, appears to conform to the laws of the
jurisdiction from which it was issued, the designated official shall not
be required to ascertain whether the authority that issued the order had
obtained personal jurisdiction over the member.
(f) List of designated officials.
Army -- Commander, U.S. Army Finance and Accounting Center, ATTN:
FINCL-G, Indianapolis, IN 46249-0160, (317) 542-2155.
Navy -- Director, Navy Family Allowance Activity, Anthony J.
Celebrezze Federal Building, Cleveland, OH 44199, (216) 522-5301.
Air Force -- Commander, Air Force Accounting and Finance Center,
ATTN: JA, Denver, CO 80279, (303) 370-7524.
Marine Corps -- Commanding Officer, Marine Corps Finance Center (Code
AA), Kansas City, MO 64197, (816) 926-7103.
32 CFR 54.6 PART 55 -- PHYSICAL EXAMINATIONS AND ANNUAL CERTIFICATES OF
PHYSICAL CONDITION
Sec.
55.1 Purpose.
55.2 Applicability.
55.3 Policy.
Authority: 10 U.S.C. 1004(a).
Source: 25 FR 14357, Dec. 31, 1960, unless otherwise noted.
32 CFR 55.1 Purpose.
To establish a uniform policy relating to physical examinations and
certificates of physical condition for reservists (other than retired
reservists) when not on active duty.
32 CFR 55.2 Applicability.
This part applies to all Military Departments in the administration
of members of reserve components.
32 CFR 55.3 Policy.
(a) Each member of the Ready Reserve who is not on active duty shall
be examined as to his physical fitness at least once every four years,
or more often as the Secretary concerned considers necessary, and shall
execute and submit annually a certificate of physical condition.
(b) Each member of the Standby Reserve in an active status, or on an
inactive status list, shall execute and submit annually a certificate of
physical condition.
(c) Members of the Standby Reserve may be examined as to their
physical condition if the Secretary concerned considers such action
necessary.
(d) Physical examinations will be reported on Standard Form 88,
''Report of Physical Examination'' and Standard Form 89, ''Report of
Medical History.'' To accomplish physical examinations, the Military
Departments are authorized to use jointly all available medical
facilities and to award points creditable toward retirement to medical
reservists not on active duty for administering physical examinations or
to use civilian physicians on a reimbursable basis where governmental
medical facilities are not available.
(e) The following action may be taken in regard to those reservists
failing to submit such information as may be requested by the
appropriate Secretary after every reasonable effort has been made to
obtain such information:
(1) Reservists having obligation under the Universal Military
Training and Service Act, as amended, may be ordered to active duty or
active duty for training, as deemed appropriate under the provisions of
section 672(b), Title 10, U.S. Code, for the purpose of securing the
necessary information.
(2) All other reservists may be considered for discharge pursuant to
section 1162(a) of title 10 U.S. Code.
32 CFR 55.3 PART 56 -- NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS AND ACTIVITIES ASSISTED OR CONDUCTED BY THE DEPARTMENT OF
DEFENSE
Sec.
56.1 Purpose.
56.2 Applicability and scope.
56.3 Definitions.
56.4 Policy.
56.5 Responsibilities.
56.6 Information requirements.
56.7 Programs and activities subject to this part.
56.8 Guidelines for determining discriminatory practices.
56.9 Ensuring compliance with this part in Federal financial
assistance programs and activities.
56.10 Ensuring compliance with this part in programs and activities
conducted by the Department of Defense.
Authority: Pub. L. 93-112, sec. 504 29 U.S.C. 794, as amended by
Pub. L. 95-602, 92 Stat. 2982; Pub. L. 93-112, sec. 7, 29 U.S.C.
706, as amended by Pub. L. 93-516, 88 Stat. 1619; Executive Order
12250; Executive Order 12291; Executive Order 12067.
Source: 47 FR 15124, Apr. 8, 1982, unless otherwise noted.
32 CFR 56.1 Purpose.
This part implements section 504 of Pub. L. 93-112, ''Rehabilitation
Act of 1973,'' September 26, 1973 (29 U.S.C. 794) (1976); section 111
of Pub. L. 93-516, ''Rehabilitation Act Amendments of 1974,'' December
7, 1974 (29 U.S.C. 706, 780, 790) (1976); section 119 of Pub. L.
95-602, ''Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978,'' November 6, 1978 (29 U.S.C. 794)
(Supp. III 1979); and Department of Justice Regulation,
''Implementation of Executive Order 12250, Nondiscrimination on the
Basis of Handicap in Federally Assisted Programs,'' August 11, 1981 (28
CFR Part 41) to prohibit discrimination based on handicap in programs
and activities receiving Federal financial assistance disbursed by the
Department of Defense and in programs and activities conducted by the
Department of Defense.
32 CFR 56.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the
Military Departments, the Organization of the Joint Chiefs of Staff, the
National Guard Bureau, and the Defense Agencies (hereafter referred to
as ''DoD Components'') insofar as they:
(1) Extend Federal financial assistance to programs and activities
that affect handicapped persons in the United States and that are
covered by this part (see 56.7(b)).
(2) Conduct programs and activities that affect handicapped persons
in the United States and that are covered by this part (see 56.7(c)).
(b) This part also applies to each recipient of Federal financial
assistance disbursed by the Department of Defense and to each program
and activity that receives or benefits from such assistance, insofar as
such recipient, program, or activity affects a handicapped person in the
United States.
32 CFR 56.3 Definitions.
(a) Facility. All or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or any interest in such property.
(b) Federal financial assistance. Any grant, loan, contract (other
than a procurement contract or a contract of insurance or guaranty), or
any other arrangement by which the Federal Government provides or
otherwise makes available assistance in the form of:
(1) Funds.
(2) Services performed by Federal personnel, including technical
assistance, counseling, training, and provision of statistical or expert
information.
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration.
(ii) Proceeds from a subsequent transfer or lease of such property if
the Federal share of its fair market value is not returned to the
Federal government.
(c) Handicapped person. Any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment. For purposes of this Directive as it relates to employment
programs of recipients, such term does not include any individual who is
an alcoholic or drug abuser and whose current use of alcohol or drugs
prevents such individual from performing the duties of the job in
question, or whose employment, by reason of such current alcohol or drug
abuse, would constitute a direct threat to property or to the safety of
others. As used in this paragraph:
(1) Physical or mental impairment. Any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or
more of the following body systems: Neurological; musculoskeletal and
special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genito-urinary; hemic and
lymphatic; skin; and endocrine; or any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities. The term
includes such diseases and conditions as orthopedic, visual, speech, and
hearing impairments; cerebral palsy, epilepsy, and muscular dystrophy;
multiple sclerosis; cancer; heart disease; diabetes; drug abuse;
and alcoholism.
(2) Major life activities. Functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
(3) Has a record of such an impairment. Has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment. Has: (i) A physical or
mental impairment that does not substantially limit major life
activities but is treated by a recipient or DoD Component as
constituting such a limitation;
(ii) A physical or a mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) None of the impairments defined above, but is treated by a
recipient or DoD Component as having such an impairment.
(d) Historic properties. Those properties listed or eligible for
listing in the National Register of Historic Places.
(e) Include; such as. Not all the possible items are covered,
whether like or unlike the ones named.
(f) Qualified handicapped person. A handicapped person who:
(1) With respect to employment, can perform the essential functions
of the job in question with reasonable accommodation.
(2) With respect to services, meets the essential eligibility
requirements for receiving the services in question.
(g) Recipient. Any state or political subdivision or instrumentality
thereof, any public or private agency, institution, organization, or
other entity, or any person that receives Federal financial assistance
directly or through another recipient, including any successor,
assignee, or transferee of a recipient, but not the ultimate beneficiary
of the assistance. The term includes persons and entities applying to
be recipients.
(h) Substantial impairment. A significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
32 CFR 56.4 Policy.
It is DoD policy that no qualified handicapped person shall be
subjected to discrimination on the basis of handicap under any program
or activity that receives or benefits from Federal financial assistance
disbursed by a DoD Component or under any Federal program or activity
that is conducted by a DoD Component. Guidelines for determining
actions that discriminate against handicapped persons are prescribed in
56.8.
32 CFR 56.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) (ASD(MRA&L)), or designee, shall monitor compliance with
this part. In discharging this responsibility, the ASD(MRA&L), or
designee, shall:
(1) Coordinate efforts of DoD Components to enforce this part.
(2) Assist in the development of standards and procedures promulgated
pursuant to 56.9.
(3) Perform the responsibilities assigned to the ASD(MRA&L) in 56.8,
9, and 10.
(4) Otherwise assist DoD Components in implementing this part.
(b) The Heads of DoD Components shall comply with this part. In
discharging this responsibility, they shall:
(1) Designate a policy-level official to ensure compliance with this
part receive and investigate complaints filed under this part and
otherwise manage DoD Component responsibilities under this part.
(2) Notify the ASD(MRA&L), or designee, of the name, position,
location, and telephone number of persons selected by them to be
policy-level officials within 15 calendar days of such a selection.
(3) Issue guidelines pursuant to 56.9.
(4) Cooperate fully with the ASD(MRA&L), or designee, in that
official's performance of the responsibilities assigned herein,
including furnishing to the ASD(MRA&L), or designee, in a timely fashion
any requested reports and information.
(5) Assign sufficient personnel to implement and to ensure effective
enforcement of this part.
32 CFR 56.6 Information requirements.
(a) Each DoD Component shall maintain a log of all complaints that
are filed with it or its recipients under this part. The log shall
contain the complainant's name (last name, first, and middle initial)
and address (street address, city, state, and zip code), the recipient's
name (if this refers to a person, last name, first, and middle initial)
and address (street address, city, state, and zip code), the nature of
the complaint, and the current status of the complaint investigation or
resolution. Each DoD Component shall submit a narrative summary report
on complaints by memorandum to the ASD(MRA&L), or designee, before July
15 and January 15 of each year. This reporting requirement has been
assigned Report Control Symbol DD-M(SA)1596.
(b) Each DoD Component shall submit a narrative report by memorandum
to the ASD(MRA&L), or designee, whenever, pursuant to enclosure 4 of
this directive, the DoD Component notifies an applicant or recipient
that noncompliance with this part is indicated. The report shall
include the recipient's name (if this refers to a person, last name,
first, and middle initial) and address (street address, city, state, and
zip code), the date (YYMMDD) and nature of the finding, and the name of
the applicable federally assisted program or activity. This reporting
requirement has been assigned Report Control Symbol DD-M(AR)1597.
(c) The recordkeeping requirements contained in 56.9(c)(2), have
been approved by the Office of Management and Budget (OMB) under 44
U.S.C. Chapter 35 and have been assigned OMB No. 0704-0102.
32 CFR 56.7 Programs and activities subject to this part.
(a) This part applies to all DoD Components and recipients of Federal
financial assistance disbursed by a DoD Component insofar as the
programs and activities of the DoD Components and recipients affect
handicapped persons in the United States. Existing programs and
activities that are assisted or conducted by a DoD Component and that
are subject to this part but do not appear in paragraph (b) or (c) of
this section, are covered even though not listed. DoD Components must
report new programs and activities that are subject to this part to the
ASD (MRA&L), or designee, within 15 calendar days of their creation or
funding.
(b) Federal financial assistance programs subject to this part
include: (1) Title 32, United States Code, Sections 101-716 (1976 and
Supp. III 1979): the Army and Air National Guard.
(2) Title 40, U.S. Code, sections 483, 484, and 512 (1976); title
49, U.S. Code, sections 1101 and 1107 (1976); and title 10, U.S. Code,
sections 2541, 2544, 2571, 2576, 2662, 7308, 7541, 7542, 7545, 7546, and
7547 (1976 and Supp. IV 1980): Various programs involving the loan or
other disposition of surplus, obsolete, or unclaimed property.
(3) Title 10 U.S. Code, sections 4307-4311 (1976), and the annual
Department of Defense Appropriations Act: National Program for the
Promotion of Rifle Practice.
(4) Secretary of the Navy Instruction 5720.19E, ''Navy Science
Cruiser Program,'' February 24, 1977.
(5) Title 10 U.S. Code, section 9441 (1976 and Supp. IV 1980): Civil
Air Patrol.
(6) Title 41 U.S. Code, sections 501-509 (Supp. III 1979): Federal
grants and cooperative agreements.
(7) Title 33 U.S. Code, section 426 (1976 and Supp. III 1979): Army
Corps of Engineers participation in cooperative investigations and
studies concerning the erosion of shores of coastal and lake waters.
(8) Title 33 U.S. Code, sections 426e-426h (1976): Army Corps of
Engineers assistance in the construction of works for the restoration
and protection of shores.
(9) Title 16 U.S. Code, section 460d (1976): Construction and
operation of public park and recreational facilities in water resource
development projects under the administrative jurisdiction of the
Department of the Army.
(10) Title 33 U.S. Code, section 701c-3 (1976): Payment to states of
lease receipts from lands acquired by the United States for flood
control, navigation, and allied purposes.
(11) Title 33 U.S. Code, sections 558c and 702d-1 (1976); title 10,
U.S. Code, sections 2668 and 2669 (1976); title 43, U.S. Code, section
961 (1976); and title 40, U.S. Code, section 319 (1976): Grants of
easements without consideration, or at a nominal or reduced
consideration, on land under the control of the Department of the Army
at water resource development projects.
(12) Title 33 U.S. Code, sections 540 and 577 (1976): Army Corps of
Engineers assistance in the construction of small boat harbor projects.
(13) Title 33 U.S. Code, section 701s (1976): Emergency bank
protection works constructed by the Army Corps of Engineers for
protection of highways, bridge approaches, and public works.
(14) Title 33 U.S. Code, section 633 (1976): Army Corps of Engineers
contracts for the protection, alteration, reconstruction, relocation, or
replacement of structures and facilities.
(15) Title 50 U.S. Code, section 453 (1976): Defense Logistics
Agency loans of industrial equipment to educational institutions (Tools
for Schools).
(16) Title 33 U.S. Code, section 610 (1976): Provision of
specialized services or technical information by the Army Corps of
Engineers to state and local governments for the control of aquatic
plant growths in rivers, harbors, and allied waters.
(17) Title 42 U.S. Code, section 1962d-16 (1976): Provision of
specialized services by the Army Corps of Engineers to any state for the
preparation of comprehensive plans for drainage basins located within
the boundaries of said state.
(18) Title 33 U.S. Code, section 603a (1976): Provision of
specialized services by the Army Corps of Engineers to improve channels
for navigation.
(19) Title 33 U.S. Code, section 701g (1976): Provision of
specialized services by the Army Corps of Engineers to reduce flood
damage.
(20) Title 24 U.S. Code, sections 44c and 47 (1976): United States
Soldiers' and Airmen's Home.
(21) Title 10 U.S. Code, Chapter 55, as implemented by DoD 6010.8-R,
''Civilian Health and Medical Program of the Uniformed Services
(CHAMPUS),'' January 10, 1977.
(c) All programs and activities conducted by the Department of
Defense that affect handicapped persons in the United States are subject
to this part. They include:
(1) Promulgation of rules and regulations for public comment in a
manner that grants handicapped persons a reasonable opportunity for such
comment (such as by making cassette recordings of proposed rules).
(2) Public meetings, conferences, or seminars sponsored or conducted
by a DoD Component but held in nongovernmental buildings.
(3) Public meetings, conferences, or seminars sponsored or conducted
by a DoD Component or by a non-DoD organization but held in a DoD
building.
(4) Open houses, memorial services, tours, or other ceremonies held
on or in DoD property.
(5) Military museums.
(6) Historic vessels.
(7) Historic buildings and properties maintained by a DoD Component
and properties designated as historic under a statute of the appropriate
state or local governmental body.
(8) Schools operated by the Department of Defense within the United
States pursuant to section 6 of Pub. L. 81-874, Title 20, U.S. Code,
section 241 (1976).
32 CFR 56.8 Guidelines for determining discriminatory practices.
(a) General prohibitions against discrimination. (1) No qualified
handicapped person shall, on the basis of handicap, be excluded from
participation in, be denied the benefit of, or otherwise be subjected to
discrimination under any program or activity that is conducted by the
Department of Defense or that receives or benefits from Federal
financial assistance disbursed by the Department of Defense.
(2) A recipient or DoD Component may not, directly or through
contractual, licensing, or other arrangements, on the basis of handicap:
(i) Provide different or separate aid, benefits, or services to
handicapped persons than is provided to others unless such action is
necessary to provide qualified handicapped persons with aid, benefits,
or services that are equal to those provided to others;
(ii) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(iii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iv) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective as that afforded to others; or
(v) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity granted to others
receiving the aid, benefit, or service.
(3) A recipient or DoD Component may not deny a qualified handicapped
person the opportunity to participate in programs or activities that are
not separate or different from regular programs or activities, even if
such separate or different programs and activities are permissible under
paragraph (a)(2)(i) of this section.
(4) A recipient or DoD Component may not provide assistance to an
agency, organization, or person that discriminates on the basis of
handicap in providing any aid, benefit, or service to beneficiaries of
the recipient's program or activity.
(5) A recipient of DoD Component may not deny, on the basis of
handicap, a qualified handicapped person the opportunity to participate
as a member of planning or advisory boards.
(6) A recipient or DoD Component may not use, directly or through
contractual or other arrangements, criteria or methods of administration
that:
(i) Subject qualified handicapped persons to discrimination on the
basis of handicap;
(ii) Defeat or substantially impair accomplishment of the objectives
of the recipient's or DoD Component's program or activity with respect
to handicapped persons; or
(iii) Perpetuate discrimination by another recipient if both
recipients are subject to common administrative control or are agencies
of the same state.
(7) In determining the site or location of a facility, a recipient or
DoD Component may not make selections that:
(i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
that receives or benefits from Federal financial assistance; or
(ii) Defeat or substantially impair, with respect to handicapped
persons, the accomplishment of the objectives of the program or
activity.
(8) Recipients and DoD Components shall administer programs and
activities in the most integrated setting appropriate to the needs of
qualified handicapped persons.
(9) Recipients and DoD Components shall take appropriate steps to
make communications with their applicants, employees, and beneficiaries
available to persons with impaired vision and hearing.
(10) This section may not be interpreted to prohibit the exclusion
of:
(i) Persons who are not handicapped from benefits, programs, and
activities limited by Federal statute or Executive order to handicapped
persons; or
(ii) One class of handicapped persons from a program or activity
limited by Federal statute or Executive order to a different class of
handicapped persons.
(11) Recipients and DoD Components shall take appropriate steps to
ensure that no handicapped individual is denied the benefits of,
excluded from participation in, or otherwise subjected to discrimination
under any program or activity receiving or benefiting from Federal
financial assistance disbursed by the Department of Defense or under any
program or activity conducted by the Department of Defense because of
the absence of auxiliary aids, such as certified sign-language
interpreters, telecommunication devises (TDDs), or other telephonic
devices for individuals with impaired sensory, manual, or speaking
skills.
(b) Prohibitions against employment discrimination by recipients.
(1) No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
that receives or benefits from Federal financial assistance disbursed by
the Department of Defense.
(2) The prohibition against discrimination in employment applies to
the following:
(i) Recruitment, advertising, and processing of applications for
employment.
(ii) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring.
(iii) Rates of pay or any other form of compensation and changes in
compensation.
(iv) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists.
(v) Leaves of absence, sick leave, or any other leave.
(vi) Fringe benefits available by virtue of employment, whether or
not administered by the recipient.
(vii) Selection and financial support for training, including
apprenticeship, professional meetings, conferences and other related
activities, and selection for leaves of absence for training.
(viii) Programs and activities sponsored by the employer, including
social and recreational programs.
(ix) Any other term, condition, or privilege of employment.
(3) A recipient may not participate in a contractual or other
relationship that subjects qualified handicapped applicants or employees
to discrimination prohibited by this section, including relationships
with employment and referral agencies, labor unions, organizations
providing or administering fringe benefits to employees of the
recipient, and organizations providing training and apprenticeship
programs.
(4) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program. Reasonable accommodation includes providing ramps, accessible
restrooms, drinking fountains, interpreters for deaf employees, readers
for blind employees, amplified telephones, TDDs such as Teletypewriters
or Telephone Writers (TTYs), and tactile signs on elevators.
(5) A recipient may not use employment tests or criteria that
discriminate against handicapped persons, and shall ensure that
employment tests are adapted for use by persons who have handicaps that
impair sensory, manual, or speaking skills.
(6) A recipient may not conduct a preemployment medical examination
or make a preemployment inquiry about whether an applicant is a
handicapped person or about the nature or severity of a handicap. A
recipient may make, however, a preemployment inquiry into an applicant's
ability to perform job-related functions.
(7) When a recipient is taking remedial action to correct the effects
of past discrimination or is taking voluntary action to overcome the
effects of conditions that have resulted in limited participation by
handicapped persons in its federally assisted program or activity, the
recipient may invite applicants for employment to indicate whether and
to what extent they are handicapped if:
(i) The recipient makes clear to the applicants that the information
is intended for use solely in connection with its remedial action
obligations or its voluntary affirmative action efforts.
(ii) The recipient makes clear to the applicants that the information
is being requested on a voluntary basis, that it will be kept
confidential as provided in paragraph (b)(9) in this section, that
refusal to provide it will not subject the applicants to any adverse
treatment, and that it will be used only in accordance with this part.
(8) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty if:
(i) All entering employees are subjected to such an examination,
regardless of handicap.
(ii) The results of such an examination are used only in accordance
with this part which prohibits discrimination against a qualified
handicapped person on the basis of handicap.
(9) Information obtained under this section concerning the medical
condition or history of applicants shall be collected and maintained on
separate forms that shall be accorded confidentiality as medical
records, except that:
(i) Supervisors and managers may be informed about restrictions on
the work or duties of handicapped persons and about necessary
accommodations.
(ii) First aid and safety personnel may be informed, when
appropriate, if a handicapping condition might require emergency
treatment.
(iii) Government officials investigating compliance with section 504,
Pub. L. 93-112, and this part shall be provided relevant information
upon request.
(c) Program accessibility -- (1) General requirements. No qualified
handicapped person shall, because a recipient's or DoD Component's
facilities are inaccessible to or not usable by handicapped persons, be
denied the benefits of, be excluded from participation in, or otherwise
be subjected to discrimination under any program or activity that
receives or benefits from Federal financial assistance disbursed by the
Department of Defense or under any program or activity conducted by the
Department of Defense.
(2) Existing facilities. (i) A recipient or DoD Component shall
operate each program or activity so that the program or activity, when
viewed in its entirety, is readily accessible to and usable by
handicapped persons. This does not necessarily require a recipient or
DoD Component to make each of its existing facilities or every part of
an existing facility accessible to and usable by handicapped persons.
For guidance in determining the accessibility of facilities, see Chapter
18 of DoD 4270.1-M, ''Department of Defense Construction Criteria
Manual,'' June 1, 1978, and Department of the Army, Office of the Chief
of Engineers, Manual EM 1110-1-103, ''Design for the Physically
Handicapped,'' October 15, 1976. Inquiries on specific accessibility
design problems may be addressed to the ASD (MRA&L), or designee.
(ii) When structural changes are necessary to make programs or
activities in existing facilities accessible to the exent required by
paragraph (c)(1) of this section.
(A) Such changes shall be made as soon as practicable, but not later
than 3 years after the effective date of this part however, if the
program or activity is a particular mode of transportation (such as a
subway station) that can be made accessible only through extraordinarily
expensive structural changes to, or replacement of, existing facilities
and if other accessible modes of transportation are available, the DoD
Component concerned may extend this period of time. This extension
shall be for a reasonable and definite period, which shall be determined
after consultation with the ASD(MRA&L), or designee.
(B) The recipient or DoD Component shall develop, with the assistance
of interested persons or organizations and within a period to be
established in each DoD Component's guidelines, a transition plan
setting forth the steps necessary to complete such changes.
(C) The recipient or DoD Component shall make a copy of the
transition plan available for public inspection. At a minimum, the plan
shall:
(1) Identify physical obstacles in the recipient's or DoD Component's
facilities that limit the accessibility of its program or activity to
handicapped persons.
(2) Describe in detail the methods that will be used to make the
facilities accessible.
(3) Specify the schedule for taking the steps necessary to achieve
full program accessibility and, if the time period of the transition
plan is longer than 1 year, identify steps that will be taken during
each year of the transition period.
(4) Indicate the person (last name, first, and middle initial)
responsible for implementation of the transition plan.
(iii) A recipient or DoD Component may comply with paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, through such means as the
acquisition or redesign of equipment, such as telecommunication or other
telephonic devices; relocation of classes or other services to
accessible buildings; assignment of aides to beneficiaries, such as
readers or certified sign-language interpreters; home visits; delivery
of health, welfare, or other services at accessible alternate sites;
alteration of existing facilities and construction of new facilities in
conformance with paragraph (c)(3) in this section; or any other method
that results in making the program or activity of the recipient or DoD
Component accessible to handicapped persons.
(iv) A recipient or DoD Component is not required to make structural
changes in existing facilities when other methods are effective in
achieving compliance with this section.
(v) In choosing among available methods for meeting the requirements
of this section, a recipient or DoD Component shall give priority to
those methods that offer programs and activities to handicapped persons
in the most integrated setting appropriate with nonhandicapped persons.
(3) New Construction. New facilities shall be designed and
constructed to be readily accessible to and usable by handicapped
persons. Alterations to existing facilities shall be designed and
constructed, to the maximum extent feasible, to be readily accessible to
and usable by handicapped persons. For guidance in determining the
accessibility of facilities, see Chapter 18 of DoD 4270.1-M and
Department of the Army, Office of the Chief of Engineers, Manual EM
1110-1-103. Inquiries about specific accessibility design problems may
be addressed to the ASD(MRA&L), or designee.
(4) Historic properties. (i) In the case of historic properties,
program accessibility shall mean that, when viewed in their entirety,
programs are readily accessible to and usable by handicapped persons.
Because the primary benefit of historic properties is the experience of
the property itself, DoD Components and recipients shall give priority
to those methods of achieving program accessibility that make the
historic property, or portions thereof, physically accessible to
handicapped persons.
(ii) Methods of achieving program accessibility include:
(A) Making physical alterations that give handicapped persons access
to otherwise inaccessible areas or features of historic properties.
(B) Using audiovisual materials and devices to depict otherwise
inaccessible areas or features of historic properties.
(C) Assigning individuals to guide handicapped persons into or
through otherwise inaccessible portions of historic properties.
(D) Adopting other innovative methods.
(iii) When program accessibility cannot be achieved without causing a
substantial impairment of significant historic features, the DoD
Component or recipient may seek a modification or waiver of access
standards from the ASD (MRA&L), or designee.
(A) A decision to grant a modification or waiver shall be based on
consideration of the following:
(1) Scale of the property, reflecting its ability to absorb
alterations.
(2) Use of the property, whether primarily for public or private
purposes.
(3) Importance of the historic features of the property to the
conduct of the program.
(4) Costs of alterations in comparison to the increase in
accessibility.
(B) The ASD(MRA&L), or designee, shall review periodically any waiver
granted under this paragraph and may withdraw it if technological
advances or other changes warrant.
(iv) The decision by the ASD(MRA&L), or designee, to grant a
modification or waiver of access standards is subject to Section 106 of
the National Historic Preservation Act, as amended, and shall be made in
accordance with the Advisory Council on Historic Preservation regulation
on ''Protection of Historic and Cultural Properties'' (36 CFR Part 800).
When the property is federally owned or when Federal funds may be used
for alterations, the ASD(MRA&L), or designee, shall obtain the comments
of the Advisory Council on Historic Preservation when required by
Section 106 of the National Historic Preservation Act and the Advisory
Council on Historic Preservation regulation on ''Protection of Historic
and Cultural Properties'' (36 CFR Part 800) prior to effectuation of
structural alterations.
(v) DoD Component guidelines prepared in accordance with 56.10 shall
include a listing of all historic properties, including historic ships,
subject to this part and a plan for compliance with paragraph (c)(4) of
this section.
(5) Military museums. (i) In the case of military museums, program
accessibility shall mean that exhibits, displays, tours, lectures,
circulating or traveling exhibits, and other programs of military
museums are accessible to and usable by handicapped persons. Methods of
meeting this requirement include the following:
(A) Museum programs may be made accessible to deaf and
hearing-impaired persons by means such as training museum staff, such as
docents, in sign language; providing qualified sign-language
interpreters to accompany deaf or hearing-impaired visitors; ensuring
that clear, concise language is used on all museum signs and display
labels; providing amplification devices; or providing printed scripts
for films, videotapes, lectures, or tours. DoD Components are
encouraged to use ''Museums and Handicapped Students: Guidelines for
Educators,'' published by the National Air and Space Museum, Smithsonian
Institution, Washington, D.C. 20560.
(B) Museum programs may be made accessible to blind and
visually-impaired persons by means such as providing museum catalogues
in a large-print edition printed over braille; providing cassette
tapes, records, or discs for museum tours or exhibits; providing
readers to accompany blind or visually impaired visitors; using
large-print and braille display cards at exhibits; providing
raised-line maps of the museum building; using raised-line drawings,
reproductions, or models of large exhibits to facilitate tactile
experiences when touching exhibits is prohibited; placing large-print
and braille signs to identify galleries, elevators, restrooms, and other
service areas; and permitting guide dogs in all museum facilities.
(C) Museum programs may be made accessible to other physically
impaired persons by means such as lowering display cases; spacing
exhibits to facilitate movement; using ramps in galleries; increasing
lighting in exhibit areas to facilitate viewing from a distance;
providing places to sit in exhibit areas; making restrooms accessible;
using large-print exhibit display cards to facilitate reading from a
distance; and sensitizing museum staff to consider the needs of
handicapped visitors when organizing exhibits.
(ii) DoD Component guidelines developed in accordance with paragraph
(c)(5) of this section shall identify military museums subject to
paragraph (c) of this section and shall contain a plan for making museum
programs accessible to handicapped persons. Technical assistance in the
preparation and content of these plans may be obtained from the National
Access Center, 1419 27th Street, NW., Washington, D.C. 20007 ((202)
333-1712 or TTY (202) 333-1339). In addition, community organizations
that serve handicapped persons and handicapped persons themselves shall
be consulted in the preparation of these plans.
(d) Reasonable accommodation. (1) A recipient or DoD Component shall
make reasonable accommodation to the known physical or mental
limitations of an otherwise qualified handicapped applicant or employee
unless the recipient or DoD Component demonstrates to the ASD(MRA&L), or
designee, that the accommodation would impose an undue hardship on the
operation of its program.
(2) Reasonable accommodation includes the following:
(i) Making facilities used by employees readily accessible to and
usable by handicapped persons.
(ii) Job restructuring; part-time or modified work schedules;
acquisition or modification of equipment or devices, such as
telecommunication or other telephonic instruments; the provision of
readers or certified sign-language interpreters; and similar actions.
(3) In determining whether an accommodation would impose an undue
hardship on the operation of a recipient's or DoD Component's program,
the ASD(MRA&L), or designee, shall consider the following factors, at a
minimum:
(i) The overall size of the recipient's or DoD Component's program or
activity, such as the number of employees, number and type of
facilities, and size of budget.
(ii) The size of the recipient's or DoD Component's operations,
including the composition and structure of the recipient's or DoD
Component's workforce.
(iii) The nature and cost of the accommodation needed.
(4) A recipient or DoD Component may not deny any employment
opportunity to a qualified handicapped employee or applicant for
employment if the basis for the denial is the need to make reasonable
accommodation to the physical or mental limitations of the employee or
applicant.
32 CFR 56.9 Ensuring compliance with this part in Federal financial
assistance programs and activities.
(a) Supplementary guidelines issued by DoD Components. (1) Whenever
necessary, DoD Components shall publish supplementary guidelines for
each type of program or activity to which they disburse Federal
financial assistance within 120 days of the effective date of this part
or of the effective date of any subsequent statute authorizing Federal
financial assistance to a new type of program or activity. DoD
Components shall obtain approval of these supplementary guidelines from
the ASD(MRA&L), or designee, before issuing them. Prior to their
issuance, the ASD(MRA&L), or designee, shall submit supplementary
guidelines prepared pursuant to paragraph (a)(1) of this section to the
Coordination and Review Section, Civil Rights Division, Department of
Justice, for review and approval. To the extent that supplementary
guidelines issued by DoD Components deal with the employment of
civilians in programs and activities subject to this part the
ASD(MRA&L), or designee, shall also obtain the approval of the Equal
Employment Opportunity Commission (EEOC) in accordance with Executive
Order 12067.
(2) The ASD(MRA&L), or designee, and DoD Components shall ensure that
their supplementary guidelines conform to the requirements of this part
and that they provide:
(i) A description of the types of programs and activities covered.
(ii) Examples of prohibited practices likely to arise with respect to
those types of programs and activities.
(iii) A list of the data collection and reporting requirements of the
recipients.
(iv) Procedures for processing and investigating complaints.
(v) Procedures for hearings to determine compliance by recipients
with this part.
(vi) Requirements or suggestions for affirmative action on behalf of
qualified handicapped persons.
(vii) Requirements for the dissemination of program and complaint
information to the public.
(viii) A description of the form of the assurances that must be
executed pursuant to paragraph (b) of this section, and sample
assurances.
(ix) Requirements concerning the frequency and nature of postapproval
reviews conducted pursuant to paragraph (h) of this section.
(x) A period of time, provided for by 56.8(c)(2)(ii)(B), for the
development of a transition plan that sets out the steps necessary to
complete structural changes that might be required by 56.8(c).
(xi) The maximum period of time that may be allowed for extensions
that might be granted pursuant to 56.8(c)(2)(ii).
(xii) An appendix that contains a list of identified programs and
activities of the type covered by the supplementary guidelines,
including the names of the programs and activities and the authorizing
statute, regulation, or directive for each program and activity.
(xiii) Requirements for the recipient to designate a responsible
official to coordinate the implementation of supplementary guidelines.
(xiv) Requirements for any other actions or procedures necessary to
implement this part.
(3) When the head of a DoD Component determines that it would not be
appropriate to include on or more of the provisions described in
paragraph (a)(2) of this section, in the supplementary guidelines of
that DoD Component or that it is not necessary to issue such guidelines
at all, the reasons for such determination shall be stated in writing
and submitted to the ASD(MRA&L), or designee, for review and approval.
Once that determination is approved, the DoD Component shall make it
available to the public upon request.
(4) The heads of DoD Components, or designees, shall be responsible
for keeping the supplementary guidelines current and accurate. When a
DoD Component determines that a program or activity should be added to
or deleted from the guidelines, the DoD Component shall notify the
ASD(MRA&L), or designee, in writing.
(b) Required assurances. (1) DoD Components shall require all
recipients to file written assurances that their programs or activities
will be conducted in accordance with this part and supplementary
guidelines promulgated by DoD Components. If a recipient fails to
provide an assurance that conforms to the requirements of this section,
the DoD Component shall attempt to effect compliance pursuant to
paragraphs (f) through (h) of this section, provided that if assistance
is due and payable to the recipient based on an application approved
prior to the effective date of this part the DoD Component shall
continue the assistance while any proceedings required by paragraphs (n)
through (v) of this section, are pending.
(2) DoD Components shall advise each recipient of the required
elements of the assurance and, with respect to each program or activity,
of the extent to which those receiving assistance from recipients shall
be required to execute similar assurances.
(3) DoD Component shall ensure that each assurance:
(i) Obligates the recipient to advise the DoD Component of any
complaints received that allege discrimination against handicapped
persons.
(ii) Obligates the recipient to collect and provide the items of
information that the DoD Component lists in its supplementary guidelines
pursuant to paragraph (a)(2)(iii) of this section.
(iii) Is made applicable to any Federal financial assistance that
might be disbursed by a DoD Component without the submission of a new
application.
(iv) Obligates the recipient, when the financial assistance is in the
form of proprerty, for the period during which the property is used
under a financial assistance agreement or is possessed by the recipient.
(v) Includes a provision recognizing that the U.S. Government has the
right to seek judicial enforcement of Section 504 and this part.
(c) Self-evaluation and consultation with interested persons and
organizations. (1) DoD Components shall require recipients to conduct,
within 6 months of the effective date of this part or of first receiving
Federal financial assistance disbursed by the Department of Defense, a
self-evaluation with the assistance of interested persons, including
handicapped persons or organizations that represent them. When
appropriate, DoD Components also shall require recipients to consult at
least annually with such persons. The ''Department of Health,
Education, and Welfare Section 504 Technical Assistance Reserve
Directory,'' April 1980, shall be consulted to identify likely sources
for consultation. In conducting its self-evaluation, each recipient
shall:
(i) Evaluate the effects of its policies and practices with respect
to its compliance with this part and the applicable DoD Component's
supplementary guidelines.
(ii) Modify any policies that do not meet such requirements.
(iii) Take appropriate remedial steps to eliminate the discriminatory
effects of any such policies or practices.
(2) For at least 3 years following the completion of a
self-evaluation required under paragraph (c)(1) of this section, a
recipient shall maintain on file, make available for public inspection,
and provide to the ASD(MRA&L), or designee, upon request:
(i) A list of the interested persons (last names, first names, and
middle initials) consulted.
(ii) A description of areas examined and problems identified, if any,
with respect to those areas.
(iii) A description of any modification made and remedial steps
taken.
(d) Dissemination of information. (1) Within 90 days of the
effective date of this part or of first receiving assistance from the
Department of Defense and on a continuing basis thereafter, each
recipient shall notify beneficiaries and employees of their rights under
this part and shall take appropriate steps to notify participants,
beneficiaries, applicants for employment and employees, including those
with impaired vision or hearing, and unions or professional
organizations involved in collective bargaining or professional
agreements with the recipient that the recipient does not discriminate
on the basis of handicap in violation of this part. The notification
shall state, when appropriate, that the recipient does not discriminate
in admitting or providing access to or treating or employing persons in
its programs and activities. Such notification may be accomplished by
posting notices, publishing announcements in newspapers and magazines,
placing notices in its publications, or distributing memoranda or other
written communications.
(2) If a recipient publishes or uses and makes available to
participants, beneficiaries, applicants for employment, or employees
recruitment materials or publications containing general information
about the recipient's programs and activities, it shall include in those
materials or publications a statement of the policy described in
paragraph (d)(1) of this section. This may be accomplished by including
appropriate inserts in existing materials and publications or by
revising and reprinting the materials and publications.
(3) Understandable materials developed in accordance with this
section shall be provided to ensure that all beneficiaries and employees
of the recipient understand the information. In addition, recipients
shall disseminate appropriate and comprehensive information about formal
and informal complaint and appeal procedures, including directions on
how and where to file complaints and to appeal DoD Component decisions.
(e) Intimidation and interference. Recipients and DoD Components
shall take reasonable steps to ensure that no person intimidates,
threatens, coerces, or discriminates against any individual for the
purpose of retaliating against, interfering with, or discouraging the
filing of a complaint, furnishing of information, or assisting or
participating in an investigation, compliance review, hearing, or other
activity related to the administration of this part.
(f) Staff responsibilities. All DoD Component determinations of
recipient compliance with this part shall be subject to reviews by the
ASD(MRA&L), or designee. When responsibility for approving applications
for Federal financial assistance disbursed by a DoD Component is
assigned to regional or area offices of the DoD Component, personnel in
such offices shall be designated to perform the functions described in
paragraphs (h) and (o) through (w) of this section.
(g) Access to records and facilities. Each recipient shall permit
access to its premises by DoD officials during normal business hours
when such access is necessary for conducting onsite compliance reviews
or complaint investigations, and shall allow such officials to
photograph facilities and to inspect and copy any books, records,
accounts, and other material relevant to determining the recipient's
compliance with this part. Information so obtained shall be used only
in connection with the administration of this part. If the recipient
does not have the information requested, it shall submit to the DoD
Component a written report that contains a certification that the
information is not available and describes the good-faith efforts made
to obtain the information.
(h) Compliance review. DoD Components shall determine the compliance
of each recipient with this part as follows: (1) General. Whenever
possible, DoD Components shall perform compliance reviews in conjunction
with their review and audit efforts implementing Title VI of the Civil
Rights Act of 1964.
(2) Desk audit application review. Before approving an application
for Federal financial assistance, the DoD Component concerned shall make
a written determination as to whether the recipient is in compliance
with this part, based on a review of the assurance of compliance
executed by a recipient pursuant to paragraph (b) of this section, and
other data submitted by the recipient. When a determination cannot be
made from the assurance and other data submitted by the recipient, the
DoD Component concerned shall require the recipient to submit additional
information and shall take other steps as necessary to determine the
recipient's compliance with this part. If this additional information
demonstrates that the recipient is in compliance with this part, the DoD
Component shall notify the recipient promptly that it is in compliance.
(3) Preapproval onsite review. (i) When a desk audit application
review conducted pursuant to paragraph (h)(2) of this section indicates
that the recipient might not be in compliance with this part, the DoD
Component concerned may conduct a preapproval onsite review at the
recipient's facilities before approving the disbursement of Federal
financial assistance to the recipient. The DoD Component shall conduct
such a review:
(A) When appropriate, if a desk audit application review reveals that
the recipient's compliance posture is questionable because of a history
of discrimination complaints, current discrimination complaints, a
noncompliance determination by another government agency or DoD
Component, or other indications of possible noncompliance; or
(B) If Federal financial assistance is requested for construction,
except under extraordinary circumstances, to determine whether the
location and design of the project would provide service on a
nondiscriminatory basis, in conformity with 56.8(c).
(ii) Preapproval onsite reviews shall be conducted under DoD
Component supplementary guidelines and in accordance with the provisions
of paragraph (h)(4) of this section, concerning postapproval reviews.
(4) Postapproval reviews. DoD Components shall: (i) Establish and
maintain effective programs of postapproval reviews.
(ii) Conduct such reviews of each recipient, the frequency and the
nature of which shall be prescribed in the DoD Component supplemetary
guidelines implementing this part.
(iii) Require recipients periodically to submit compliance reports to
them.
(iv) Record the results of the reviews, including findings of fact
and recommendations.
(5) A DoD Component shall complete a review within 180 calendar days
of initiating it unless an extension of time is granted by the
ASD(MRA&L), or designee, for good cause shown, and shall either:
(i) Find the recipient to be in compliance and notify the recipient
of that finding; or
(ii) Notify the recipient and the ASD(MRA&L), or designee, of a
finding of probable noncompliance, pursuant to paragraph (o) of this
section.
(i) Filing of complaints against recipients. (1) DoD Components
shall establish and publish in their supplementary guidelines procedures
for the prompt processing and disposition of complaints against
recipients, consistent with this section.
(2) A DoD Component shall consider all complaints that: (i) Are
filed with it within 180 days of the alleged discrimination or within a
longer period of time if an extension is granted for good cause by the
DoD Component with the approval of the ASD(MRA&L), or designee.
(ii) Include the name, address, and telephone number, if any, of the
complainant; the name and address of the recipient committing the
alleged discrimination; a description of the acts or omissions
considered to be discriminatory; and other pertinent information.
(iii) Are signed by the complainant or the complainant's authorized
representative (legal counsel or a person with power of attorney granted
by the complainant).
(3) DoD Components shall transmit a copy of each complaint filed with
them to the ASD(MRA&L), or designee, within 10 calendar days after its
receipt.
(4) If the information in a complaint is incomplete, the DoD
Component shall request the complainant to provide the additional
information required. If the DoD Component does not receive this
requested information within 30 calendar days of the date of the
request, the case may be closed and the complainant so notified in
writing.
(5) If a complaint concerning a program or activity is filed with a
DoD Component that does not have jurisdiction over it, the DoD Component
shall refer the complaint to the ASD(MRA&L), or designee, and advise the
complainant in writing of such referral. The ASD(MRA&L), or designee,
then shall refer the complaint to the appropriate DoD Component and so
notify the complainant in writing.
(j) Investigation by DoD components. (1) DoD Components shall
investigate complaints that involve recipients and that meet the
standards described in paragraph (i) of this section, unless good cause
for not investigating is stated in a written notification of the
disposition of the complaint provided to the complainant.
(2) If an investigation of a complaint is conducted, the DoD
Component concerned shall maintain a case record that contains:
(i) The name (last name, first, and middle initial), address (street
address, city, state, and zip code), and telephone number of each person
interviewed.
(ii) Copies, transcripts, or summaries of pertinent documents.
(iii) A reference to at least one program or activity conducted by
the recipient and receiving Federal financial assistance disbursed by a
DoD Component, and a description of the amount and nature of the
assistance.
(iv) A narrative report of the results of the investigation that
contains references to relevant exhibits and other evidence that relates
to the alleged violations.
(k) Investigations by recipients. (1) A DoD Component may require or
permit recipients to investigate complaints alleging violation of this
part. In such cases, the DoD Component shall:
(i) Ensure that the recipient investigates the complaints in
accordance with the standards, procedures, and requirements prescribed
in paragraph (j) of this section.
(ii) Require the recipient to submit a written report of each
complaint and investigation to the DoD Component.
(iii) Retain a review responsibility over the investigation and
disposition of each complaint.
(iv) Ensure that each complaint investigation is completed within 180
calendar days of the receipt of the complaint by the proper DoD
Component, unless an extension of time is granted for good cause by the
ASD(MRA&L), or designee.
(v) Require the recipient to maintain a log of all complaints filed
against it, as described in 56.6(a)(1).
(2) DoD Components that require or permit complaint investigations to
be conducted by recipients shall review recipient complaint
investigations pursuant to paragraphs (k) and (l) of this section.
(l) Results of investigations. (1) Within 180 days of the receipt of
a complaint, the DoD Component, recipient, or the ASD(MRA&L), or
designee, shall give written notification:
(i) Of the disposition of the complaint to the complainant and, as
the case may be, to the recipient or DoD Component.
(ii) To the complainant that within 30 calendar days of receipt of
the written notification, the complainant may request that the
ASD(MRA&L), or designee, review the findings in the notification
pursuant to paragraph (m) of this section.
(2) If the complaint investigation results in a determination by the
DoD Component that a recipient is not complying with this part the DoD
Component shall proceed as prescribed in paragraph (n) through (v) of
this section. If the DoD Component determines that the recipient is in
compliance, the DoD Component shall submit the complete case file to the
ASD(MRA&L), or designee, within 15 calendar days after the notification
of the disposition of the investigation to the complainant.
(m) Reviewing completed investigations. (1) The ASD(MRA&L), or
designee, may review all completed investigations.
(2) The ASD(MRA&L), or designee, shall review the results of any
investigation of a complaint if the complainant requests such a review
pursuant to paragraph (l)(1)(ii) of this section.
(3) After reviewing the results of an investigation, the ASD(MRA&L),
or designee, may:
(i) Find that no further investigation is necessary and approve the
results of the investigation;
(ii) Request further investigation by the DoD Component; or
(iii) Require the DoD Component to take appropriate corrective
action.
(n) Effecting compliance. (1) When a compliance review or complaint
investigation indicates that a recipient has violated this part, the
applicable DoD Component's supplementary guidelines, or the assurances
executed pursuant to paragraph (b) of this section, the responsible DoD
Component or the ASD(MRA&L), or designee, shall attempt to effect
compliance in accordance with paragraphs (o) and (p) of this section.
The inability of a DoD Component to comply with any time frame
prescribed by this part does not relieve a recipient of the
responsibility for compliance with this part.
(2) The DoD Component may require, when necessary to overcome the
effects of discrimination in violation of this part, a recipient to take
remedial action:
(i) With respect to handicapped persons who are no longer
participants in the recipient's program or activity but who were
participants in the program or activity when such discrimination
occurred.
(ii) With respect to handicapped persons who would have been
participants in the recipient's program or activity had the
discrimination not occurred.
(iii) With respect to handicapped persons presently in the
recipient's program or activity, but not receiving full benefits or
equal and integrated treatment within the program or activity.
(o) Written notice. After evaluating the investigative report, the
DoD Component shall issue to the recipient and, pursuant to paragraph
(n)(2) of this section to the ASD(MRA&L), or designee, a written notice
that:
(1) Describes the apparent violation and the corrective actions
necessary to achieve compliance.
(2) Extends an offer to meet informally with the recipient.
(3) Informs the recipient that failure to respond to the notice
within 15 calendar days of its receipt shall result in the initiation of
enforcement procedures described in paragraphs (r) through (v), of this
section.
(p) Attempting to achieve voluntary compliance by recipients. (1) If
a DoD Component issues a notice pursuant to paragraph (o) of this
section, the DoD Component shall attempt to meet with the recipient and
shall attempt to persuade it to take the steps necessary to achieve
compliance with this part.
(2) If a recipient agrees to take remedial steps to achieve
compliance, the DoD Component shall require that the agreement be in
writing and:
(i) Be signed by the head of the DoD Component concerned, or
designee, and by the principal official of the recipient.
(ii) Specify the action necessary to achieve compliance.
(iii) Be made available to the public upon request.
(iv) Be subject to the approval of the ASD(MRA&L), or designee.
(3) If satisfactory adjustment or a written agreement has not been
achieved within 60 calendar days of the recipient's receipt of the
notice issued pursuant to paragraph (o) of this section, the DoD
Component shall notify the ASD(MRA&L), or designee, and state the
reasons therefor.
(4) The DoD Component shall initiate the enforcement actions
prescribed in paragraphs (r) through (v) of this section if:
(i) The recipient does not respond to a notice pursuant to paragraph
(o) of this section, within 15 calendar days of its receipt and
satisfactory adjustments are not made within 45 calendar days of the
date of the recipient's response; or
(ii) The DoD Component or the ASD (MRA&L) determines at any time
within 90 days after the recipient receives a notice pursuant to
paragraph (o) of this section, that, despite reasonable efforts, it is
not likely that the recipient will comply promptly and voluntarily.
(5) If, pursuant to paragraph (p)(4) of this section, the DoD
Component initiates enforcement action, it also shall continue its
attempts to persuade the recipient to comply voluntarily.
(q) Imposing sanctions -- (1) Sanctions available. If a DoD
Component has taken action pursuant to paragraphs (o) and (p) of this
section, the DoD Component may, by order, subject to paragraph (q)(2)
and (q)(3) of this section:
(i) Terminate, suspend, or refuse to grant or continue assistance to
such recipient.
(ii) Refer the case to the Department of Justice for the initation of
enforcement proceedings at a Federal, State, or local level.
(iii) Pursue any remedies under state or local law.
(iv) Impose other sanctions upon consultation with the ASD (MRASL),
or designee.
(2) Terminating, suspending, or refusing to grant or continue
assistance. A DoD Component may not terminate or refuse to grant or
continue Federal financial assistance unless:
(i) Such action has been approved by the Secretary of Defense.
(ii) The DoD Component has given the recipient an opportunity for a
hearing pursuant to the procedures set out in paragraph (r) of this
section, and a finding of noncompliance has resulted.
(iii) Thirty calendar days have elapsed since the Secretary of
Defense has filed a written report describing the violation and action
to be taken with the committees of the House of Representatives and
Senate that have jurisdiction over the program or activity in which the
violation of this part exists.
(iv) Such action is limited to affect only the particular activity or
program, or portion thereof, of the recipient where the violation
exists.
(3) Other sanctions. A DoD Component may not impose the sanctions
set out in paragraphs (q)(1) (iii) and (iv) of this section, unless:
(i) The DoD Component has given the recipient an opportunity for a
hearing pursuant to paragraph (r) of this section, and a finding of
noncompliance has resulted.
(ii) The action has been approved by the Secretary of Defense.
(iii) Ten calendar days have elapsed since the mailing of a notice
informing the recipient of its continuing failure to comply with this
part the action necessary to achieve compliance, and the sanction to be
imposed.
(iv) During those 10 calendar days the DoD Component has made
additional efforts to persuade the recipient to comply.
(r) Hearings for recipients -- (1) General. When, pursuant to
paragraph (q)(2)(ii) of this section, an opportunity for a hearing is
given to a recipient, the DoD Component involved shall follow the
procedures prescribed in paragraphs (r)(2) through (r)(6) of this
section.
(2) Notice. The DoD Component concerned shall notify the recipient
of the opportunity for a hearing by registered or certified mail, return
receipt requested, when the recipient denies a tentative finding of
noncompliance with this part.
(i) The DoD Component shall ensure that the notice:
(A) Describes the proposed sanctions to be imposed.
(B) Cites the section of this part under which the proposed action is
to be taken.
(C) States the name and office of the DoD Component official who is
responsible for conducting the hearing (hereafter referred to as the
''responsible DoD official'').
(D) Outlines the issues to be decided at the hearing.
(E) Advises the recipient either of a date, not less than 20 calendar
days after the date that the notice is received, by which the recipient
may request that the matter be scheduled for a hearing, or of a
reasonable time and place of a hearing that is subject to change for
good cause shown.
(ii) When a time and place for a hearing are set, the DoD Component
shall give the recipient and the complainant, if any, reasonable notice
of such time and place.
(3) Waiver of a hearing. A recipient may waive a hearing and submit
to the responsible DoD official, in writing, information or arguments on
or before the date stated pursuant to paragraph (r)(2)(i)(E) of this
section.
(i) A recipient waives its right to a hearing if it fails to request
a hearing on or before a date stated pursuant to paragraph (r)(2)(i)(E)
of this section, or fails to appear at a hearing that has been scheduled
pursuant to that paragraph.
(ii) If a recipient waives its right to a hearing under this section,
the responsible DoD official shall decide the issues and render a final
decision that is based on the information available and that conforms to
the requirements of paragraph (s)(4) of this section.
(4) Hearing examiner. Hearings shall be conducted by the responsible
DoD official or by a hearing examiner designated by the official,
provided that the hearing examiner shall be a field grade officer or
civilian employee above the grade of GS-12 (or the equivalent) who is
admitted to practice law before a Federal court or the highest court of
a state, territory, commonwealth, or the District of Columbia.
(5) Right to counsel. In all proceedings under this section, the
recipient and the DoD Component may be represented by counsel. The
representation of the recipient will not be at U.S. Government expense.
(6) Procedures. Hearings authorized under this section shall be
subject to the following: (i) Hearings shall be open to the public.
(ii) Formal rules of evidence will not apply. The DoD Component
concerned and the recipient shall be entitled to introduce all relevant
evidence on the issues stated in the notice of hearing issued pursuant
to paragraph (r)(2) of this section, and those designated by the
responsible DoD official or the hearing examiner at the outset of or
during the hearing. The responsible DoD official or hearing examiner,
however, may exclude irrelevant, immaterial, or repetitious evidence.
(iii) All witnesses may be examined or cross-examined, as the case
may be, by each party.
(iv) All parties shall have the opportunity to examine all evidence
offered or admitted for the record.
(v) A transcript of the proceedings shall be maintained in either
electronic or typewritten form and made available to all parties.
(s) Decisions -- (1) Initial or proposed decisions by a hearing
examiner. If a hearing is conducted by a hearing examiner who is
designated by the responsible DoD official pursuant to paragraph (r)(4)
of this section, the hearing examiner shall either:
(i) Make an initial decision, if so authorized, that conforms to the
requirements of paragraph (s)(4) of this section; or
(ii) Certify the entire record and submit to the responsible DoD
official recommended findings and a proposed decision.
(2) Review of initial decisions. Initial decisions made by a hearing
examiner pursuant to paragraph (s)(1)(i) of this section, shall be
reviewed as follows:
(i) A recipient may file exceptions to an initial decision within 30
calendar days of receiving notice of such initial decision. Reasons
shall be stated for each exception.
(ii) If the recipient does not file exceptions pursuant to paragraph
(s)(2)(i) of this section, the responsible DoD official may notify the
recipient within 45 calendar days of the initial decision that the
responsible DoD official will review the decisions.
(iii) If exceptions are filed pursuant to paragraph (s)(2)(i) of this
section, or a notice of review is issued pursuant to paragraph
(s)(2)(ii) of this section, the responsible DoD official shall review
the initial decision and, after giving the recipient reasonable
opportunity to file a brief or other written statement of its
contentions, issue a final decision that addresses each finding and
conclusion in the initial decision and each exception, if any.
(iv) If the exceptions described in paragraph (s)(2)(i) of this
section are not filed and the responsible DoD official does not issue
the notice of review described in paragraph (s)(2)(ii) of this section,
the initial decision of the hearing examiner shall constitute the final
decision of the responsible DoD official.
(3) Decisions by the responsible DoD official who conducts a hearing
or receives a certified record. If a hearing examiner who is designated
by the responsible DoD official certifies the entire record and submits
recommended findings and a proposed decision to the responsible DoD
official pursuant to paragraph (s)(1)(ii) of this section, or if the
responsible DoD official conducts the hearing, after giving the
recipient a reasonable opportunity to file a brief or other written
statement of its contentions, the responsible DoD official shall render
a final decision that conforms to paragraph (s)(4) of this section.
(4) Contents of decisions. Each decision of a hearing examiner or
responsible DoD official shall state all findings and conclusions and
identify each violation of this part. The final decision may contain an
order pursuant to paragraph (q) of this section, providing for the
suspension or termination of or refusal to grant or continue all or some
of the Federal financial assistance under the program or activity
involved and contain terms, conditions, and other provisions that are
consistent with and intended to achieve compliance with this Directive.
(5) Notice of decisions and certifications. The responsible DoD
official shall provide a copy of any certified record of a hearing and
any initial or final decision to the recipient and the complainant, if
any.
(6) Review by the Secretary of Defense. The responsible DoD official
shall transmit promptly any final decision that orders a suspension,
termination, or denial of Federal financial assistance through the
ASD(MRA&L) to the Secretary of Defense. The Secretary may;
(i) Approve the decision;
(ii) Vacate the decision; or
(iii) Remit or mitigate any sanction imposed.
(t) Restoring eligibility for financial assistance. (1) A recipient
that is affected adversely by a final decision issued under paragraph
(s) of this section, may at any time request the responsible DoD
official to restore fully its eligibility to receive Federal financial
assistance.
(2) If the responsible DoD official determines that the information
supplied by the recipient demonstrates that it has satisfied the terms
and conditions of the order entered pursuant to paragraph (s) of this
section, and that is complying with and has provided reasonable
assurance that it will continue to comply with this part the responsible
DoD official shall restore such eligibility immediately.
(3) If the responsible DoD official denies a request for restoration
of eligibility, the recipient may submit a written request for a hearing
that states why it believes the responsible DoD official erred in
denying the request. Following such a written request, the recipient
shall be given an expeditious hearing under rules of procedure issued by
the responsible DoD official to determine whether the requirements
described in paragraph (t)(2) of this section, have been met. While any
such proceedings are pending, the sanctions imposed by the order issued
under paragraph (s) of this section, shall remain in effect.
(u) Interagency cooperation and delegation. (1) When several
recipients are receiving assistance for the same or similar purposes
from a DoD Component and another Federal agency, the DoD Component shall
notify the ASD (MRA&L), or designee. Such notification shall be in
writing and shall contain:
(i) A description of the programs and activities involved.
(ii) A statement of the amount of money expended on the programs and
activities in the previous and current fiscal year by the DoD Component
and the agency.
(iii) A list of the known primary recipients.
(2) The ASD(MRA&L), or designee, shall attempt to negotiate with the
Federal agency a written delegation agreement that designates the agency
or the DoD Component as the primary agency for purposes of ensuring
compliance with section 504 of Pub. L. 93-112, as amended, and this
part depending upon which of them administers a larger financial
assistance program with the common recipients and other relevant
factors. If necessary, the agreement shall establish procedures to
ensure the enforcement of section 504 of Pub. L. 93-112, as amended,
and this part. The ASD(MRA&L), or designee, shall provide written
notification to recipients of an agreement reached under this
subsection.
(3) When several recipients are receiving assistance for the same or
similar purposes from two or more DoD Components, the DoD Components may
negotiate a proposed written delegation agreement that:
(i) Assigns responsibility for ensuring that the recipient complies
with this part to one of the DoD Components.
(ii) Provides for the notification to recipients and the responsible
program officials of the DoD Components involved of the assignment of
enforcement responsibility.
(4) No delegation agreement reached in accordance with paragraph
(u)(3) to this section shall be effective until it is approved by the
ASD(MRA&L), or designee.
(5) When possible, existing delegation agreements relating to Title
VI of the Civil Rights Act of 1964 shall be amended to provide for the
enforcement of this part.
(6) Any DoD Component conducting a compliance review or investigating
a complaint of an alleged violation by a recipient shall notify any
other affected agency or DoD Component through the ASD(MRA&L), or
designee, upon discovery that the agency or DoD Component has
jurisdiction over the program or activity in question and shall
subsequently inform it of the finding made. Such reviews or
investigations may be conducted on a joint basis.
(7) When a compliance review or complaint investigation under this
part reveals a possible violation of Executive Order 11246, Titles VI or
VII of the Civil Rights Act of 1964, or any other Federal law, the DoD
Component shall notify the appropriate agency, through the ASD(MRA&L),
or designee.
(v) Coordination with Sections 502 and 503. (1) DoD Components shall
use DoD 4270.1-M and Department of the Army, Office of the Chief of
Engineers, Manual EM 1110-1-103, in developing requirements for the
accessibility of facilities. If DoD Components encounter issues with
respect to Section 502 of the Rehabilitation Act of 1973, as amended,
that are not covered by these publications, the ASD(MRA&L), or designee,
may be consulted. If necessary, the ASD(MRA&L), or designee, shall
consult with the Architectural and Transportation Barriers Compliance
Board in resolving such problems.
(2) DoD Components may advise recipients to consult directly with the
Architectural and Transportation Barriers Compliance Board in developing
accessibility criteria.
(3) DoD Components shall coordinate enforcement actions relating to
the accessibility of facilities with the Architectural and
Transportation Barriers Compliance Board and shall notify the
ASD(MRA&L), or designee, of such coordination.
(4) If a recipient is also a Federal contractor subject to Section
503 of the Rehabilitation Act of 1973, as amended, and the regulations
thereunder (41 CFR Part 60-741) and if a DoD Component has reason to
believe that the recipient is in violation thereof, the DoD Component
shall coordinate enforcement actions with the Department of Labor,
Office of Federal Contract Compliance Programs. The DoD Component shall
notify the ASD(MRA&L), or designee, of such coordination.
32 CFR 56.10 Ensuring compliance with this part in programs and
activities conducted by the Department of Defense.
(a) Supplementary guidelines. (1) Whenever necessary, the
ASD(MRA&L), or designee, shall publish supplementary guidelines for
programs and activities that are conducted by DoD Components and that
are subject to this Directive. Prior to their issuance, the ASD(MRA&L),
or designee, shall submit supplementary guidelines prepared pursuant to
this subsection to the Coordination and Review Section, Civil Rights
Division, Department of Justice, for review.
(2) The heads of DoD Components, or designees, shall be responsible
for keeping the supplementary guidelines described in this section
current and accurate. When a DoD Component head determines that a
program or activity should be added to or deleted from the guidelines,
that official shall notify the ASD(MRA&L), or designee, in writing.
(b) Staff responsibilities. The ASD(MRA&L), or designee, shall
determine DoD Component compliance with this part as it pertains to
programs and activities that are conducted by DoD Components and are
subject to this part.
(c) Filing of complaints. (1) Complaints of discrimination in a
program or activity conducted by a DoD Component may be filed directly
with the ASD(MRA&L), or designee.
(2) DoD Components shall develop procedures, such as posters or other
devices, to notify participants in the programs and activities listed in
56.7(c) of their right to be free of discrimination because of handicap
in those programs and activities and of their right to file complaints
of discrimination with the ASD(MRA&L), or designee.
(d) Investigations of complaints. (1) The ASD(MRA&L), or designee,
shall investigate complaints of discrimination in programs and
activities that are conducted by DoD Components and are subject to this
part.
(2) A case record of each investigation shall be compiled in
accordance with 56.9(j)(2).
(e) Results of investigations. If the complaint investigation
results in a determination by the ASD(MRA&L), or designee, that a DoD
Component's program or activity is not complying with 56.9, the
ASD(MRA&L), or designee, shall proceed as prescribed in 56.9 (n)
through (v). Hearings prescribed under 56.9(r) however, need not be
conducted. If the ASD(MRA&L), or designee, determines that the DoD
Component is in compliance, the ASD(MRA&L), or designee, shall notify
the complainant within 15 calendar days of such determination.
(f) Written notice. If an investigative report concludes that there
has been a violation of this part in a program or activity conducted by
a DoD Component and the ASD(MRA&L), or designee, accepts that
conclusion, that official shall issue to the head of the DoD Component a
written notice describing the apparent violation, the corrective actions
necessary to achieve compliance, and a suspense date for completion of
the corrective actions.
(g) Effecting compliance. When necessary to overcome the effects of
discrimination in violation of this part the ASD(MRA&L), or designee,
may require a DoD Component to take remedial action similar to that in
56.9(n)(2).
(h) Employment. DoD Components that conduct Federal programs or
activities covered by this part that involve employment of civilian
persons to conduct such a program or activity must comply with Section
501 of the Rehabilitation Act of 1973, as amended, and the implementing
rules and regulations of the EEOC.
32 CFR 56.10 PART 57 -- EDUCATION OF HANDICAPPED CHILDREN IN THE DoD
DEPENDENTS SCHOOLS
Sec.
57.1 Purpose.
57.2 Applicability and scope.
57.3 Policy.
57.4 Responsibilities.
57.5 Definitions.
Appendix 1 to Part 57 -- Procedures for Educational Programs and
Services for Handicapped Children
Appendix 2 to Part 57 -- Hearing Procedures
Authority: Pub. L. 94-142, as amended; Pub. L. 95-561, as amended.
Source: 46 FR 62260, Dec. 23, 1981, unless otherwise noted.
32 CFR 57.1 Purpose.
This part establishes policies and procedures for providing a free
appropriate public education to handicapped children receiving or
entitled to receive educational instruction from the DoD Dependents
Schools (DoDDS) pursuant to Pub. L. 94-142 and Pub. L. 95-561 and in
accordance with Part 69 of this title; establishes an Overseas
Dependents Schools National Advisory Panel on the Education of
Handicapped Dependents (National Advisory Panel) consistent with the
provisions of DoD Directive 5105.18,1 ''Department of Defense Committee
Management Program,'' April 25, 1975, and a DoD Coordinating Committee
on Special Education and Related Services.
1Copies may be obtained, if needed, from the U.S. Naval Publications
and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120, Attention:
Code 301.
32 CFR 57.2 Applicability and scope.
(a) The provisions of the part apply to the Office of the Secretary
of Defense and its field activity, DoDDS and DoDDS constituent elements;
the Military Departments; the Organization of the Joint Chiefs of
Staff; the Unified and Specified Commands; and the Defense Agencies
(collectively DoD Components).
(b) The provisions encompass children receiving or entitled to
receive educational instruction from DoDDS, and the parents of those
children.
(c) The provisions do not apply to schools operated by the Department
of Defense within the United States.
32 CFR 57.3 Policy.
(a) All handicapped children receiving or entitled to receive
educational instruction from DoDDS shall be provided a free appropriate
public education under the provisions of this part.
(b) DoDDS shall have the responsibility of providing a free
appropriate public education to all handicapped children enrolled in its
schools.
(c) Handicapped children receiving or entitled to receive educational
instruction from DoDDS shall have a free appropriate public education,
the same educational opportunities and services offered by DoDDS to
nonhandicapped children, and an equal opportunity to participate in
school activities.
(d) Physical education services, modified or specially designed if
necessary, shall be available to every handicapped child receiving a
free appropriate public education from DoDDS.
(e) When appropriate, a qualified military medical authority shall
conduct or verify a medical evaluation and participate with DoDDS
personnel in determining whether a child has a handicapping condition
requiring special education and related services.
32 CFR 57.4 Responsibilities.
(a) The Director, Department of Defense Dependents Schools, and his
subordinate organizational structure, shall: (1) Ensure that
handicapped children receiving educational instruction from DoDDS are
provided a free appropriate public education and that the educational
needs of handicapped and nonhandicapped children are met comparably,
using the procedures established by this part.
(2) Ensure that educational facilities and services operated by DoDDS
for handicapped children are comparable to DoDDS educational facilities
and services for nonhandicapped children.
(3) Maintain records on special education and related services
provided to handicapped children.
(4) Provide any or all special education and related services
required by a handicapped child, other than those furnished by the
Secretaries of the Military Departments. In fulfilling this
responsibility, the Director and his subordinate organizational
structure may use interagency, intra-agency, and interservice
arrangements, or act through contracts with private parties, when funds
are authorized and appropriated.
(5) Develop and implement a comprehensive system of personnel
development.
(6) Monitor compliance with this Instruction.
(7) Provide technical assistance.
(8) Undertake evaluation activities to ensure compliance with this
part.
(b) The Secretaries of the Military Departments shall provide those
related services that are supplied by a physician or that require
professional medical supervision. In general, those services, which are
diagnostic and therapeutic in nature, shall be provided to DoDDS by the
appropriate military command having responsibility for medical care in
the geographical region. The services provided by the Secretaries of
the Military Departments include medical services for diagnostic and
evaluation purposes, occupational therapy, physical therapy, and
audiology as may be required to assist a handicapped child to benefit
from special education.
(c) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) (ASD(MRA&L)), in consultation with the Assistant
Secretary of Defense (Health Affairs) and the Secretaries of the
Military Departments, shall assign specific functions and geographical
areas of responsibility for all related services.
(d) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics), or designee, shall: (1) Chair the DoD Coordinating
Committee on Special Education and Related Services, which shall be
composed of representatives of the Secretaries of the Military
Departments, the ASD(MRA&L), the Assistant Secretary of Defense (Health
Affairs), the General Counsel of the Department of Defense, and DoDDS.
(2) Through the Committee, monitor the provision of related services
furnished under this Instruction, and ensure that related services and
DoDDS special education programs are properly coordinated.
(3) Ensure that impartial due process hearings concerning disputes
arising under this part are provided in conformity with this part.
(e) The National Advisory Panel shall: (1) Consist of members
appointed by the Secretary of Defense, or designee. Membership shall
include at least one representative from each of the following groups:
(i) Handicapped persons.
(ii) DoDDS special education teachers.
(iii) DoDDS regular education teachers.
(iv) Parents of handicapped children.
(v) DoDDS headquarters.
(vi) DoDDS regional offices.
(vii) DoDDS special educational program administrators.
(viii) Military Departments and overseas commands, including
providers of related services.
(ix) Other appropriate persons.
(2) Meet as often as necessary.
(3) Perform the following duties:
(i) Review information regarding improvements in services provided to
handicapped students in DoDDS.
(ii) Receive and consider the views of various parent, student, and
professional groups, and handicapped individuals.
(iii) When necessary, establish committees for short-term purposes
composed of representatives from parent, student, and professional
groups, and handicapped individuals.
(iv) Review the findings of fact and decision of each impartial due
process hearing conducted pursuant to this part.
(v) Assist in developing and reporting such information and
evaluations as may aid DoDDS in the performance of its duties under this
part.
(vi) Make recommendations, based on program and operational
information, for changes in the budget, organization, and general
management of the special education program, and in policy and
procedure.
(vii) Comment publicly on rules or standards regarding the education
of handicapped children.
(viii) Perform such other tasks as may be requested by the Director.
(4) Submit an annual report of its activities and suggestions to the
Director, DoDDS, by July 31, of each year. This report is exempt from
formal review and licensing pursuant to subsection VII.C. of enclosure 3
to DoD Directive 5000.19,1 ''Policies for the Management and Control of
Information Requirements,'' March 12, 1976.
1See footnote in 57.1.
32 CFR 57.5 Definitions.
(a) Child-find. The ongoing process used by DoDDS and the Military
Departments to seek and identify children (from birth to 21 years of
age) who show indications that they might be in need of special
education and related services Child-find activities include the
dissemination of information to the public and identification,
screening, and referral procedures.
(b) Consent. This term means that: (1) The parent of a handicapped
child has been fully informed, in his or her native language or in
another mode of communication, of all information relevant to the
activity for which permission is sought.
(2) The parent understands and agrees in writing to the
implementation of the activity for which his or her permission is
sought. The writing must describe that activity, list the child's
records that will be released and to whom, and acknowledge that the
parent understands consent is voluntary and may be prospectively revoked
at any time.
(c) Evaluation. Procedures used to determine whether a child is
handicapped and the nature and extent of the special education and
related services that the child needs. To qualify as an evaluation,
these procedures must be used selectively with an individual child and
may not include basic tests administered to, or used with, all children
in a school, grade, or class.
(d) Free appropriate public education. Special education and related
services that:
(1) Are provided at no cost to parents or handicapped children and
are under the general supervision and direction of DoDDS.
(2) Provide appropriate preschool, elementary, or secondary school
education.
(3) Are provided in conformity with an Individualized Education
Program.
(4) Meet the requirements of this part.
(e) Handicapped children. Those children, evaluated in accordance
with this part who are mentally retarded, hard of hearing, deaf, speech
impaired, visually handicapped, seriously emotionally disturbed,
orthopedically impaired, other health impaired, deaf-blind, or
multihandicapped, or have specific learning disabilities, and who
because of such impairments need special education and related services.
(1) Deaf. A hearing loss or deficit so severe that the child is
impaired in processing linguistic information through hearing, with or
without amplification, to the extent that his or her educational
performance is adversely affected.
(2) Deaf-blind. 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. A hearing impairment, whether permanent or
fluctuating, that adversely affects a child's educational performance
but that does not consitute deafness.
(4) Mentally retarded. Significantly subaverage general intellectual
functioning, existing concurrently with deficits in adaptive behavior
and manifested during the developmental period, that adversely affects a
child's educational performance.
(5) Multihandicapped. Concomitant impairments (such as mentally
retarded-blind or mentally retarded-orthopedically impaired), the
combination of which causes such severe educational problems that they
cannot be accommodated in special educational programs solely for one of
the impairments.
(6) Orthopedically impaired. A severe orthopedic impairment that
adversely affects a child's educational performance. The term includes
congenital impairments (such as clubfoot and absence of some member),
impairments caused by disease (such as poliomyelitis and bone
tuberculosis), and impairments from other causes (such as cerebral
palsy, amputations, and fractures or burns causing contractures).
(7) Other health impaired. Limited strength, vitality, or alertness
due to chronic or acute health problems that adversely affect a child's
educational performance, including heart condition, tuberculosis,
rheumatic fever, nephritis, asthma, sickle-cell anemia, hemophilia,
epilepsy, lead poisoning, leukemia, diabetes, or autism.
(8) Seriously emotionally disturbed. A condition that has been
confirmed by clinical evaluation and diagnosis and that, over a long
period of time and to a marked degree, adversely affects educational
performance, and that exhibits one or more of the following
characteristics:
(i) An inability to learn that 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 under normal circumstances.
(iv) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(v) A general pervasive mood of unhappiness or depression.
The term includes children who are schizophrenic, but does not
include children who are socially maladjusted, unless it is determined
that they are seriously emotionally disturbed.
(9) Specific learning disability. A disorder in one or more of the
basic psychological processes involved in understanding or in using
spoken or written language that may manifest itself as an imperfect
ability to listen, think, speak, read, write, spell, or 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 that are primarily the result of visual, hearing, or
motor handicaps, mental retardation, emotional disturbance, or
environmental, cultural, or economic differences.
(10) Speech impaired. A communication disorder, such as stuttering,
impaired articulation, language impairment, or a voice impairment, that
adversely affects a child's educational performance.
(11) Visually handicapped. A visual impairment that, even with
correction, adversely affects a child's educational performance. The
term includes both partially seeing and blind children.
(f) Include; Such As. Not all the possible items are covered,
whether like or unlike the ones named.
(g) Independent evaluation. An evaluation conducted by a qualified
examiner who is not employed by the DoDDS school with responsibility for
educating the child being evaluated.
(h) Individualized Education Program (IEP). A written statement for
a handicapped child that is developed and implemented in accordance with
this part.
(i) Native language. When used with reference to an individual of
limited English proficiency, the language normally used by such
individual, or in the case of a child, the language normally used by the
parent of the child.
(j) Non-DoDDS placement. An assignment by DoDDS of a handicapped
child to a non-DoDDS school or facility.
(k) Non-DoDDS school or facility. A public or private school or
other institution not operated by DoDDS.
(l) Parent. A parent or guardian of a child who is receiving or is
entitled to receive educational instruction from DoDDS.
(m) Qualified. A person who has met DoDDS requirements and
educational standards in the area in which he or she is providing
special education or related services to handicapped children.
(n) Regional Director. The Regional Director of a DoDDS region, or
designee.
(o) Related services. Transportation and such developmental,
corrective, and other supportive services as are required to assist a
handicapped child to benefit from special education pursuant to that
child's IEP. The term includes speech therapy 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 evaluative
purposes. The term also includes school health services, social work
counseling services in schools, and voluntary parent counseling.
(1) Audiology. This term includes: (i) Identification of children
with hearing loss.
(ii) Determination of the range, nature, and degree of hearing loss,
including referral for medical or other professional attention designed
to ameliorate or correct that loss.
(iii) Provision of ameliorative and corrective activities, including
language and auditory training, speech-reading (lip-reading), hearing
evaluation, speech conservation, the recommendation of amplification
devices, and other aural rehabilitation services.
(2) Counseling services. Services provided by qualified social
workers, psychologists, guidance counselors, or other qualified
personnel.
(3) Early identification. The implementation of a formal plan for
identifying a disability as early as possible in the child's life.
(4) Medical services. Services provided by a licensed physician to
determine and diagnose, in conjunction with the Case Study Committee
(CSC), whether a child has a medically related handicapping condition
that results in the child's need for special education and related
services.
(5) Occupational therapy. Services provided or supervised by a
qualified occupational therapist.
(6) Parent counseling and training. Assisting parents in
understanding the special needs of their child's development and special
education.
(7) Physical therapy. Services provided or supervised by a qualified
physical therapist.
(8) Psychological services. This term includes: (i) Administering
psychological and educational tests and other assessment procedures.
(ii) Interpreting test and assessment results.
(iii) Obtaining, integrating, and interpreting information about a
child's behavior and conditions relating to his or her learning.
(iv) Consulting with other staff members in planning school programs
to meet the special needs of children, as indicated by psychological
tests, interviews, and behavioral evaluations.
(v) Planning and managing a program of psychological services,
including psychological counseling for children.
(9) Recreation. This term includes: (i) Therapeutic recreational
activities.
(ii) Recreational programs in schools and community agencies.
(10) School health services. Services provided by a qualified school
nurse or other qualified health professional. The term does not include
catheterization, injections, transfusions, or administration of any drug
or substance, whether or not prescribed, recommended, or authorized by
any physician, nurse, another health professional, or other person. The
term also does not include any medical or nonmedical procedure,
treatment, or course of treatment necessary to sustain or maintain a
child's life, life function, or life support function. Nothing herein
shall be construed to preclude a duly trained, certified, or licensed
DoDDS employee from performing any of the foregoing activities when
authorized or directed by a DoDDS regional director.
(11) Social work counseling services in schools. This term includes:
(i) Preparing a social or developmental history on a handicapped child.
(ii) Counseling the child and his or her family on a group or
individual basis.
(iii) Working with those problems in a child's home, school, and
community that adversely affect the child's adjustment in school.
(iv) Using school and community resources to enable the child to
receive maximum benefit from his or her educational program.
(12) Speech therapy. This term includes the: (i) Identification of
children with speech or language disorders.
(ii) Diagnosis and appraisal of specific speech or language
disorders.
(iii) Referral for medical or other professional attention to correct
or ameliorate speech or language disorders.
(iv) Provision of speech and language services for the correction,
amelioration, and prevention of communicative disorders.
(v) Counseling and guidance of children, parents, and teachers for
speech and language disorders.
(13) Transportation. This term includes the following services
rendered pursuant to the IEP of a handicapped child:
(i) Travel to and from school and between schools, including travel
necessary to permit participation in educational and recreational
activities and related services.
(ii) Travel in and around school buildings.
(iii) Specialized equipment (including special of adapted buses,
lifts, and ramps), if required to provide special transportation from a
handicapped child.
(p) Separate facility. A school or a portion of a school, regardless
of whether it is operated by DoDDS, that is only attended by handicapped
children.
(q) Special education. Specially designed instruction, at no cost to
the child or parent, to meet the unique educational needs of a
handicapped child, including education provided in a school, at home, in
a hospital or in an institution, physical education programs, and
vocational education programs.
(1) At no cost. With respect to a child attending a DoDDS school on
a nontuition basis, specially designed instruction and related services
are provided without charge, but incidental fees that are normally
charged to nonhandicapped students or their parents as a part of the
regular educational program may be imposed. With respect to a child
attending a DoDDS school on a tuition basis, the term does not preclude
the imposition of additional charges to reflect the cost of special
education and related services.
(2) Physical education. The development of: (i) Physical and motor
fitness.
(ii) Fundamental motor skills and patterns.
(iii) Skills in aquatics, dance, and individual and group games and
sports (including intramural and lifetime sports).
(3) Vocational education. Organized educational programs directly
related to the preparation for paid or unpaid employment or for
additional training in a career requiring other than a baccalaureate or
advanced degree.
32 CFR 57.5 Pt. 57, App. 1
32 CFR 57.5 Appendix 1 to Part 57 -- Procedures for Educational
Programs and Services for Handicapped Children
1. DoDDS shall locate, identify, and, with the consent of the child's
parent, evaluate all children who are receiving or are entitled to
receive an education from DoDDS and who need special education and
related services because they are handicapped, as defined in this part.
2. DoDDS shall:
a. Provide screening, by using basic skills tests in reading language
arts, and mathematics, and by reviewing records of all children entering
DoDDS schools for the first time, to determine whether a child may be in
need of special education and related services.
b. Analyze school health data for those children who demonstrate
possible handicapping conditions. Such data shall include:
(1) Results of formal hearing, vision, speech, and language tests.
(2) Reports from physicians and public health service personnel.
(3) Reports from other appropriate professional health personnel as
may be necessary to aid in identifying possible handicapping conditions.
c. Analyze other pertinent information, including suspensions,
exclusions, withdrawals, and disciplinary actions, compiled and
maintained by schools that may aid in identifying possible handicapping
conditions.
d. Provide direction and guidelines for child-find activities.
3. Each DoDDS regional office, in cooperation with the Military
Departments, shall conduct ongoing child-find activities that are
designed to identify all children with possible handicapping conditions
who are or will be entitled to receive an education from DoDDS.
4. If an element of DoDDS, a qualified professional authorized to
provide related services, or another source determines that a child has
a possible handicapping condition, the child shall be referred to the
appropriate CSC.
5. A school CSC consists of the participants in the child's IEP
meeting as prescribed in paragraph C.6 of appendix, below. In addition,
a school CSC shall contain the DoDDS school principal, or designee, and
one or more persons selected by the principal from any or all of the
following groups:
a. DoDDS or Military Department resource educators, including
psychologists, guidance counselors, social workers, reading improvement
specialists, school health personnel, occupational therapists, physical
therapists, and speech therapists.
b. DoDDS regular classroom teachers.
c. DoDDS special education personnel.
6. Members of a regional CSC shall be appointed by the DoDDS Regional
Director and shall include one or more persons belonging to either or
both of the following groups: DoDDS or Military Department resource
educators, such as psychologists, guidance counselors, social workers,
reading improvement specialists, school health personnel, occupational
therapists, physical therapists, and speech therapists; and DoDDS
special education personnel. The regional CSC shall act in the absence
of a school CSC, and members of a regional CSC may be assigned to a
school CSC.
7. A school or regional CSC shall assist in identifying handicapped
children.
1. Any child who is receiving or entitled to receive educational
instruction from DoDDS and who is referred to a CSC for a possible
handicapping condition shall receive a full and comprehensive diagnostic
evaluation of his or her educational needs. An evaluation in accordance
with this Instruction shall be administered before any action is taken
regarding development of the IEP or placement in a special education
program.
2. A CSC shall:
a. Assess the nature and extent of the handicapping condition and
determine if special education and related services are required.
b. Ensure appropriate involvement of parents.
c. Develop, review, and revise IEPs, and monitor their
implementation.
d. Determine whether a handicapped child's conduct that either
violates school rules and regulations or disrupts classroom activities
results in whole or in part from a handicapping condition.
e. Use all locally available community, medical, and school resources
to facilitate the implementation of a child's IEP before the Regional
Director with educational responsibility for the child determines that
the child's need for special education and related services exceeds
local capabilities.
3. Assessment materials, evaluation procedures, and tests shall be:
a. Racially and culturally nondiscriminatory.
b. Administered in the native language or mode of communication of
the child, unless it clearly is not feasible to do so.
c. Validated for the specific purpose for which they are used or
intended to be used.
d. Administered by qualified personnel, such as a special educator,
school psychologist, speech therapist, or a reading improvement
specialist, in conformity with the instructions provided by the
producers of the testing device.
e. Administered in a manner so that no single procedure is the sole
criterion for determining an appropriate educational program for a
handicapped child.
f. Selected to assess specific areas of educational need, not merely
to provide a single general intelligence quotient.
4. The evaluation shall be conducted by a multidisciplinary team or
group of persons, and shall include a teacher or other specialist with
knowledge in the area of the suspected disability.
5. The child shall be evaluated in all areas related to the suspected
disability. When necessary, the evaluation shall include:
a. The current level of functioning academically, socially, and
within the family.
b. Visual and auditory acuity.
c. Observation in an educational environment.
d. Current physical status, including perceptual and motor abilities.
e. Vocational educational assessment.
6. The regional or school CSC shall issue a written report that
contains, when necessary:
a. A description of the nature and severity of the child's
handicapping condition.
b. A review of the formal and informal diagnostic evaluation findings
of the multidisciplinary team.
c. A summary of information from the parents, the child, or other
persons having significant previous contact with the child.
d. A description of the child's current academic progress, including
a statement of the child's learning style.
7. The appropriate CSC shall meet as soon as practicable after the
child's formal evaluation to determine whether he or she is in need of
special education and related services. The child's parents shall be
afforded the opportunity to participate in such a meeting.
8. A handicapped child shall receive an individual comprehensive
diagnostic evaluation every 3 years, or more frequently if conditions
warrant. The scope and nature of the reevaluation shall be determined
individually, based upon the child's performance, behavior, and needs
when the reevaluation is conducted.
1. DoDDS shall ensure that an IEP is developed and implemented for
each handicapped child enrolled in a DoDDS school or placed in another
institution by DoDDS pursuant to this Instruction.
2. Each IEP shall include:
a. A statement of the present levels of educational performance of
the child.
b. A statement of annual goals, including short-term instructional
objectives.
c. A statement of specific special educational and recreational
activities and related services to be provided to the child, and the
extent to which the child may be able to participate in regular
educational programs.
d. The projected date for the initiation and the anticipated length
of such activities and services.
e. Appropriate objective criteria and evaluation procedures and
schedules for determining, on an annual basis, whether educational
objectives are being achieved.
f. A statement indicating the frequency (number of times per month)
and intensity (amount of time each day) of related services.
3. The IEP of each handicapped child shall provide for the
opportunity to participate, with adaptations when appropriate, in the
regular physical education program available to nonhandicapped children
unless:
a. The handicapped child is enrolled full-time in a separate
facility; or
b. The handicapped child needs specially designed physical education,
as prescribed in the child's IEP.
4. If specially designed physical education services are prescribed
in a handicapped child's IEP, DoDDS shall provide such education
directly, or shall make arrangements for the services to be provided
through non-DoDDS schools or facilities.
5. DoDDS shall ensure that a handicapped child enrolled in a separate
facility receives appropriate physical education services in compliance
with this part.
6. The IEP for each handicapped child shall be developed, later
reviewed, and, if appropriate, revised at least annually in meetings
that include the following participants:
a. The child's regular teacher.
b. A teacher of special education.
c. The principal or a representative of the DoDDS school, other than
the child's teacher, who is qualified to provide, or supervise the
provision of, special education.
d. One or both of the child's parents.
e. The child, if appropriate.
f. A member of the evaluation team, the child's teacher, or another
person knowledgeable about the evaluation procedures used with the child
and familiar with the results of the evaluation.
g. Other individuals, at the reasonable discretion of the parents or
DoDDS.
7. Each DoDDS school shall:
a. Ensure that an IEP is in effect before a child receives special
education and related services. If a child with a current IEP transfers
to or from a school within DoDDS, the CSC of the receiving school or
region may implement, at its discretion, the current IEP, initiate a
meeting to revise the current IEP, or initiate an evaluation of the
child.
b. Ensure that an IEP meeting is held following a determination by
the school or regional CSC that the child needs special education and
related services.
c. Afford the child's parents the opportunity to participate in every
IEP meeting concerning their child by:
(1) Providing the parents adequate notice of the time and place of
the meeting.
(2) Attempting to schedule the meeting at a mutually agreeable time
and place.
8. A meeting may be conducted without a parent in attendance if the
school is unable to convince a parent to attend. In this case, the
school must have a written record of its attempts to arrange a mutually
acceptable time and place.
9. If the parents attend the IEP meeting, the school shall take
necessary action to ensure that at least one of the parents understands
the proceedings at the meeting, including providing an interpreter for a
parent who is deaf or whose native language is other than English.
10. If neither parent can attend the meeting, other methods to
promote participation by a parent, such as telephone conversations and
letters, shall be used.
11. The school shall give a parent a copy of the child's IEP.
12. Each DoDDS school shall provide special education and related
services, in accordance with an IEP, provided that DoDDS, its
constituent elements, or its personnel are not accountable if a child
does not achieve the growth projected in the IEP.
13. DoDDS shall ensure that an IEP is developed and implemented for
each handicapped child whom DoDDS places in a non-DoDDS school or other
facility.
1. The placement of a child in any special education program by DoDDS
shall be effected only pursuant to an IEP after a determination, under
this Instruction, has been made that a child is handicapped and needs
special education and related services.
2. The appropriate CSC shall meet as soon as is practicable following
the development of a handicapped child's IEP to identify the personnel
who will provide the child with special education and related services
pursuant to the IEP.
3. A placement decision may not be implemented without the consent of
a parent of the child, except as otherwise provided herein.
4. The placement decision must be designed to educate a handicapped
child in the least restrictive environment so that the child is educated
to the maximum extent appropriate with children who are not handicapped.
Special classes, separate schooling, or other removal of handicapped
children from the regular educational environment shall occur only when
the nature or severity of the handicap is such that the child cannot be
educated satisfactorily in regular classes with the use of supplementary
aids and services.
5. Each handicapped child's educational placement shall be:
a. Determined at least annually by the appropriate CSD.
b. Based on the child's IEP.
c. Located as close as possible to the residence of the parent who is
sponsoring the child for attendance in a DoDDS school.
d. Designed to assign the child to the school the child would attend
if he or she were not handicapped, unless the IEP requires some other
arrangement.
e. Predicated on the consideration of all factors affecting the
child's well-being, including the effects of separation from parents.
f. To the maximum extent appropriate, designed such that the child
participates in school activities, including meals and recess periods,
with children who are not handicapped.
1. Handicapped children eligible to receive instruction in DoDDS who
are referred to a non-DoDDS school or facility by DoDDS have all the
rights of handicapped children who are enrolled in DoDDS schools.
a. If DoDDS places a handicapped child in a non-DoDDS school or
facility as a means of providing special education and related services,
the program of that institution, including nonmedical care, room, and
board, as set forth in the child's IEP, must be at no cost to the child
or the child's parents.
b. DoDDS may place a handicapped child in a non-DoDDS school or
facility only if required by an IEP. An IEP for a student placed in a
non-DoDDS school is not valid until signed by an authorized DoDDS
official. The IEP shall include determinations that:
(1) DoDDS does not currently have an educational program appropriate
to meet the needs of the handicapped child.
(2) The non-DoDDS school or facility and its educational program
conform to this part.
2. DoDDS is not responsible for the cost of a non-DoDDS placement,
unless it is authorized by the appropriate DoDDS regional office in
coordination with DoDDS Headquarters pursuant to a valid IEP or is
directed by an impartial hearing officer or court of competent
jurisdiction.
3. Non-DoDDS placements by DoDDS shall be:
a. In accordance with host nation requirements.
b. Subject to all treaties, executive agreements, and status of
forces agreements between the United States and host nations, and all
DoD and DoDDS regulations.
c. As close as possible to the DoDDS school that the handicapped
child attends or would otherwise attend.
4. Before DoDDS places a handicapped child in a non-DoDDS school or
facility, DoDDS shall conduct a meeting in accordance with this part to
develop an IEP for the child.
1. Parents shall be given written notice before DoDDS proposes to
initiate or change, or refuses to initiate or change, either the
identification, evaluation, or educational placement of a child
receiving or entitled to receive special education and related services
from DoDDS, or the provision of a free appropriate public education by
DoDDS to the child. The notice shall fully inform a parent of the
procedural rights conferred by this part and shall be given in the
parent's native language, unless it clearly is not feasible to do so.
2. The consent of a parent of a child who is handicapped or is
suspected of having a handicapping condition shall be obtained before
any:
a. Initiation of formal evaluation procedures.
b. Initial educational placement.
c. Change in educational placement.
3. If the parent refuses consent to any formal evaluation or initial
placement in a special education program, DoDDS may initiate an
impartial due process hearing under this part to show cause why an
evaluation or placement in a special education program should occur
without such consent. If the hearing officer sustains the DoDDS
position in the impartial due process hearing, the appropriate DoDDS
school may evaluate or provide special education and related services to
the child without the consent of a parent, subject to the parent's due
process rights.
4. A parent is entitled to an independent evaluation of his or her
child at DoDDS expense if the parent disagrees with the findings of an
evaluation of the child conducted by the school and the parent
successfully challenges the evaluation in an impartial due process
hearing.
a. If an independent evaluation is provided at the expense of DoDDS,
it must meet the following criteria:
(1) Conform to the requirements of this part.
(2) Be conducted, when possible, within the area where the child
resides.
(3) Follow all DoD regulations regarding the host nation.
(4) Meet DoDDS standards governing persons qualified to conduct an
educational evaluation.
b. If the final decision rendered in an impartial due process hearing
sustains the evaluation of the CSC, the parent has the right to an
independent evaluation, but not at DoDDs expense.
5. The parents of a handicapped child shall be afforded an
opportunity to inspect and review all educational records concerning not
only the identification, evaluation, and educational placement of the
child, but also the provision of a free appropriate public education to
the child.
6. Upon complaint presented in a written petition, the parent of a
handicapped child or DoDDs shall have the opportunity for an impartial
due process hearing provided by DoDDS, in accordance with this part.
7. During the pendency of any impartial due process hearing or
judicial proceeding regarding the identification, evaluation, or
educational placement of a handicapped child receiving an education from
DoDDS or the provision of a free appropriate public education to such a
child, unless DoDDS and a parent of the child agree otherwise, the child
shall remain in his or her present educational placement, subject to the
disciplinary procedures prescribed by this part.
8. If a handicapped child who is entitled to receive educational
instruction from DoDDS is applying for initial admission to a DoDDS
school, the child shall enter the DoDDS system on the same basis as a
nonhandicapped child. However, a handicapped child, with the consent of
a parent and DoDDS, may receive an initial placement in a special
education program comparable to the child's program prior to entering
DoDDS, until all due process and judicial proceedings have been
completed.
9. The General Counsel of the Department of Defense shall coordinate
on modifications to Appendix 2 of this part.
10. The parent of a handicapped child or a DoD employee may file a
written complaint with the appropriate DoDDs regional office concerning
a possible violation of this Instruction or Pub. L. 94-142.
DoDDS shall maintain all student records under this part in
conformity with 32 CFR 286a.
1. All regular disciplinary rules and procedures applicable to
children receiving educational instruction in DoDDS shall apply to
handicapped children who violate school rules and regulations or disrupt
regular classroom activities, subject to the provisions of this section.
2. Prior to the suspension or expulsion of a handicapped child, the
appropriate CSC or, in the case of a handicapped child in a non-DoDDS
school, authorized DoDDS officials shall determine whether the child's
conduct is the result of the child's handicapping condition.
3. If the CSC or authorized DoDDS officials determine that the
child's conduct results in whole or part from his or her handicapping
condition, the child may not be subject to any regular disciplinary
rules and procedures, and:
a. The child's parents shall be notified in accordance with this part
of the right to have an IEP meeting before any change in the child's
educational placement.
b. The CSC or authorized DoDDS officials shall ensure that a meeting
is held to determine the appropriate educational placement for the child
in consideration of his or her conduct.
4. A handicapped child shall neither be suspended nor expelled, and
his or her educational placement shall not otherwise be changed for
disciplinary reasons, unless in accordance with this section, except
that:
a. This section shall be applicable only to children determined to be
handicapped under this part.
b. Nothing contained herein shall preclude the emergency suspension
of any handicapped child who endangers or reasonably appears to endanger
the health, welfare, or safety of himself or herself, or any other
child, teacher, or school personnel, provided that:
(1) The appropriate CSC or authorized DoDDS officials shall
immediately meet to determine whether the child's conduct results from
his or her handicapping condition and what change in educational
placement is appropriate for the child.
(2) The child's parents shall be notified immediately of the child's
suspension, and of the time and location of, and their right to attend
the meeting.
(3) The suspension of the child is only effective for the duration of
the emergency.
32 CFR 57.5 Pt. 57, App. 2
32 CFR 57.5 Appendix 2 to Part 57 -- Hearing Procedures
This Appendix establishes adjudicative requirements whereby the
parents of handicapped children and DoDDS are afforded impartial due
process hearings with respect to the identification, evaluation, and
educational placement of, and the free appropriate public education
provided to, such children by the Department of Defense, in accordance
with Pub. L. 94-142 and Pub. L. 95-561.
1. The DoDDS Regional Director with responsibility for the
handicapped child whose education is at issue shall be responsible for
the hearings conducted under this part.
2. This part shall be administered to ensure that the findings,
judgments, and determinations made are prompt, fair, and impartial.
3. Impartial hearing officers shall be appointed by the ASD(MRA&L),
or designee, and shall be attorneys who are independent of DoDDS and
members in good standing of the bar of any state, the District of
Columbia, or a territory or possession of the United States.
4. Counsel normally shall appear and represent DoDDS in proceedings
conducted under this part. A parent shall have the right to be
represented in such proceedings at no cost to the government by counsel
or a personal representative.
1. Mediation can be initiated by either a parent or DoDDS in order to
resolve informally a disagreement with respect to the identification,
evaluation, or educational placement of, or the free appropriate public
education provided to, a 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.
2. Mediation must be conducted, attempted, or refused in writing by a
parent 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 DoDDS for a hearing under this part shall state how this
requirement has been satisfied. No stigma may be attached to the
refusal of a parent to mediate or to an unsuccessful attempt to mediate.
1. Hearing. a. Should mediation be refused or otherwise fail to
resolve the issues concerning the provision of a free appropriate public
education to a handicapped child or the identification, evaluation, or
educational placement of the child, the child's parent or the school
principal having jurisdiction over the child may request and shall
receive a hearing before a hearing officer to resolve the matter. The
parents of a handicapped child whose education is at issue and DoDDS
shall be the only parties to a hearing conducted under this part.
b. The party seeking the hearing shall submit a written request, in
the form of a petition, setting forth the facts, issues, and proposed
relief, to the DoDDS Regional Director who has responsibility for the
handicapped child. The petitioner shall deliver a copy of the petition
to the opposing party (that is, the parent or, on behalf of DoDDS, the
school principal), either in person or by first-class mail, postage
prepaid. Delivery is complete upon mailing. When DoDDS petitions for a
hearing, it shall inform the other parties of the deadline for filing an
answer under paragraph D.1.c., below, and shall provide the other
parties with a copy of this part.
c. An opposing party shall submit an answer to the petition to the
appropriate Regional Director, with a copy to the petitioner, within 15
calendar days of receipt of the petition. The answer shall be as full
and complete as possible, addressing the issues, facts, and proposed
relief.
d. Within 10 calender days after receiving the petition, the Regional
Director shall obtain the assignment of a hearing officer, who then
shall have jurisdiction over the resulting proceeding. The Regional
Director promptly shall forward all pleadings to the hearing officer.
e. The questions for adjudication shall be based on the petition and
the answer, provided that a party may amend a pleading if the amendment
is filed with the hearing officer and is received by the other parties
at least 5 calendar days before the hearing.
f. The Regional Director shall arrange for the time and place of the
hearing, and shall provide administrative support. Such arrangements
shall be reasonably convenient to the parties.
g. The purpose of a hearing is to establish the relevant facts
necessary for the hearing officer to reach a fair and impartial
determination of the case. Oral and documentary evidence that is
relevant and material may be received. The technical rules of evidence
shall be relaxed to permit the development of a full evidentiary record,
with the Federal Rules of Evidence, Title 28, U.S.C. serving as a guide.
h. The hearing officer shall be the presiding officer, with judicial
powers to manage the proceeding and conduct the hearing. Those powers
shall include the authority to order an independent evaluation of the
child at the expense of DoDDS and to call and question witnesses.
i. Those normally authorized to attend a hearing shall be the parents
of the child, the counsel and personal representative of the parents,
the counsel and professional employees of DoDDS, the hearing officer,
and an individual qualified to transcribe or record the proceedings.
The hearing officer may permit other persons to attend the hearing,
consistent with the privacy interests of the parents and the child,
provided the parents have the right to an open hearing upon waiving in
writing their privacy rights and those of the child.
j. A verbatim transcription of the hearing shall be made in written
or electronic form and shall become a permanent part of the record. A
copy of the written transcript or electronic recording shall be made
available to a parent upon request and without cost. The hearing
officer may allow corrections to the written transcript or electronic
recording for the purpose of conforming it to actual testimony after
adequate notice of such changes is given to all parties.
k. The hearing officer's decision of the case shall be based on the
record, which shall include the petition; the answer; the written
transcript or the electronic recording of the hearing; exhibits
admitted into evidence; pleadings or correspondence properly filed and
served on all parties; and such other matter as the hearing officer may
include in the record, provided that such matter is made available to
all parties before the record is closed under paragraph D.1.m., below.
l. The hearing officer shall make a full and complete record of a
case presented for adjudication.
m. The hearing officer shall decide when the record in a case is
closed.
n. The hearing officer shall issue findings of fact and render a
decision in a case not later than 50 calendar days after being assigned
to the case, unless a discovery request under subsection D.2., below, is
pending.
2. Discovery. a. Full and complete discovery shall be available to
parties to the proceeding, with the Federal Rules of Civil Procedure,
Title 28, U.S.C. serving as a guide.
b. If voluntary discovery cannot be accomplished, a party seeking
discovery may file a motion to accomplish discovery, provided such
motion is founded on the relevance and materiality of the proposed
discovery to the issues. An order granting discovery shall be
enforceable as is an order compelling testimony or the production of
evidence.
c. A copy of the written or electronic transcription of a deposition
taken by DoDDS shall be made available free of charge to a parent.
3. Witnesses; Production of Evidence. a. All witnesses testifying
at the hearing shall be advised that it is a criminal offense knowingly
and willfully to make a false statement or representation to a
department or agency of the United States Government as to any matter
within the jurisdiction of that department or agency. All witnesses
shall be subject to cross-examination by the parties.
b. A party calling a witness shall bear the witness' travel and
incidental expenses associated with testifying at the hearing. DoDDS
shall pay such expenses when a witness is called by the hearing officer.
c. The hearing officer may issue an order compelling the attendance
of witnesses or the production of evidence upon his own motion or, if
good cause be shown, upon motion of a party.
d. When the hearing officer determines that a person has failed to
obey an order to testify or to produce evidence, and such failure is in
knowing and willful disregard of the order, the hearing officer shall so
certify.
e. The party or the hearing officer seeking to compel testimony or
the production of evidence may, upon the certification provided for in
paragraph D.3.d., above, file an appropriate action in a court of
competent jurisdiction to compel compliance with the hearing officer's
order.
4. Hearing Officer's Findings of Fact and Decision. a. The hearing
officer shall make written findings of fact and shall issue a decision
setting forth the questions presented, the resolution of those
questions, and the rationale for the resolution. The hearing officer
shall file the findings of fact and decision with the appropriate
Regional Director, with a copy to the parents, the school principal, and
the Director of DoDDS.
b. The Regional Director shall forward a copy of the hearing
officer's findings of fact and decision, with all personally
indentifiable information deleted, to the National Advisory Panel.
c. The hearing officer shall have the authority to impose financial
responsibility for educational placements, evaluation, and related
services under his or her findings of fact and decision.
d. The findings of fact and decision of the hearing officer shall
become final unless a notice of appeal is filed under subsection F.1.,
below. DoDDS shall implement a decision as soon as practicable after it
becomes final.
1. At the request of a parent of the handicapped child whose
education is at issue, the requirement for a hearing may be waived, and
the case may be submitted to the hearing officer on written documents
filed by the parties. The hearing officer shall make findings of fact
and issue a decision within the period fixed by paragraph D.1.n., above.
2. DoDDS may oppose a request to waive the hearing. In that event,
the hearing officer shall rule on the request.
3. Documents submitted to the hearing officer in a case determined
without a hearing shall comply with paragraph D.1.g., above. A party
submitting such documents shall provide copies to all other parties.
1. A party may appeal the hearing officer's findings of fact and
decision by filing a written notice of appeal with the ASD (MRA&L), or
designee, within 5 calendar days of receipt of the findings of fact and
decision. The notice of appeal must contain the appellant's
certification that a copy of the notice of appeal has been provided to
all other parties. Filing is complete upon mailing.
2. Within 10 calendar days of filing the notice of appeal, the
appellant shall submit a written statement of issues and arguments to
the ASD(MRA&L), or designee, with a copy to the other parties. The
other parties shall submit a reply or replies to the ASD(MRA&L), or
designee, within 15 calendar days of receiving the statement, and shall
deliver a copy of each reply to the appellant. Submission is complete
upon mailing.
3. The ASD(MRA&L), or designee, shall determine the matter on appeal,
including the making of interlocutory rulings, within 20 calendar days
of receiving timely submitted replies under subsection F.2., above. The
ASD(MRA&L), or designee, may request oral argument at a time and place
reasonably convenient to the parties.
4. The determination of the ASD(MRA&L), or designee, shall be a final
administrative decision and shall be in written form. It shall address
the issues presented and set forth a rationale for the decision reached.
A determination denying the appeal of a parent in whole or in part
shall state that the parent has the right under Pub. L. 94-142 to bring
a civil action with respect to the matters in dispute in any state court
of competent jurisdiction or in a district court of the United States
without regard to the amount in controversy.
5. No provision of this Instruction or other DoD guidance may be
construed as conferring a further right of administrative review. A
party must exhaust all administrative remedies afforded by this
Instruction before seeking judicial review of a determination made under
this Instruction.
Final decisions in cases arising under this part shall be published
and indexed in accordance with 32 CFR 286 to protect the privacy rights
of the parents and children who are parties in those cases.
32 CFR 57.5 PART 58 -- HUMAN IMMUNODEFICIENCY VIRUS (HIV-1)
Sec.
58.1 Purpose.
58.2 Applicability.
58.3 Definitions.
58.4 Policy.
58.5 Responsibilities.
58.6 Procedures.
Appendix A to Part 58 -- Administration of Officer Applicants
Appendix B to Part 58 -- HIV-1 Testing of DoD Civilian Employees
Appendix C to Part 58 -- Personnel Notification and Epidemiological
Investigation
Authority: 10 U.S.C. 113.
Source: 56 FR 15281, Apr. 16, 1991, unless otherwise noted.
32 CFR 58.1 Purpose.
This part supersedes Deputy Secretary of Defense Memorandum, ''Policy
on Identification, Surveillance, and Administration of Personnel
Infected with Human Immunodeficiency Virus (HIV),'' August 4, 1988,
Deputy Secretary of Defense Memorandum, ''Recommendations for Revision
of DoD Human Immunodeficiency Virus (HIV) Policies,'' March 8, 1988,
Assistant Secretary of Defense (Health Affairs) Memorandum, ''Policy on
Clinical Evaluation, Staging and Disease Coding of Military Personnel
Infected with Human Immunodeficiency Virus (HIV),'' September 11, 1987,
Assistant Secretary of Defense (Health Affairs) Memorandum, ''The DoD
HTLV-III Testing Program,'' December 5, 1985, Assistant Secretary of
Defense (Health Affairs) Memorandum, ''Military Implementation of Public
Health Service Provisional Recommendations Concerning Testing Blood and
Plasma for Antibodies to HTLV-III,'' July 17, 1985, to update policy,
responsibilities, and procedures on identification, surveillance, and
administration of civilian and military personnel infected with HIV-1.
32 CFR 58.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments (including their Reserve components), the Chairman
of the Joint Chiefs of Staff and the Joint Staff, the Unified and
Specified Commands, and the Defense Agencies (hereafter referred to
collectively as ''the DoD Components''). The term ''Military
Services,'' as used herein, refers to the Army, the Navy, the Air Force,
and the Marine Corps.
32 CFR 58.3 Definitions.
(a) Human Immunodeficiency Virus-1 (HIV-1). The virus most commonly
associated with the Acquired Immune Deficiency Syndrome (AIDS) in the
United States.
(b) HIV-1 and/or AIDS Education Program. Any combination of
information, education, and behavior-change strategies designed to
facilitate behavioral alteration that will improve or protect health.
Included are those activities intended to support or influence
individuals in managing their own health through lifestyle decisions and
self-care. Operationally, such programs include community, worksite,
and clinical aspects using appropriate public health education
methodologies.
(c) Serologic Evidence of HIV-1 Infection. A reactive result given
by a Food and Drug Administration (FDA)-approved enzyme-linked
immunosorbent assay (ELISA) serologic test that is confirmed by a
reactive and diagnostic immunoelectrophoresis test (Western blot (WB))
test on two separate samples.
(d) Host Nation. A foreign nation to which DoD U.S. civilian
employees are assigned to perform their official duties.
(e) DoD Civilian Employees. Current and prospective DoD U.S.
civilian employees, including appropriated and nonappropriated fund
personnel. This does not include members of the family of DoD civilian
employees, employees of, or applicants for, positions with contractors
performing work for the Department of Defense, or their families.
(f) Epidemiological Assessment. The process by which personal and
confidential information on the possible modes of transmission of HIV-1
are obtained from an HIV-1 infected person. This information is used to
determine if previous, present, or future contacts of the infected
individual are at risk for infection with HIV-1 and to prevent further
transmission of HIV-1.
32 CFR 58.4 Policy.
It is DoD policy to:
(a) Deny eligibility for appointment or enlistment for Military
Service to individuals with serologic evidence of HIV-1 infection.
(b) Screen active duty (AD) and Reserve component military personnel
periodically for serologic evidence of HIV-1 infection.
(c) Refer AD personnel with serologic evidence of HIV-1 infection for
a medical evaluation of fitness for continued service in the same manner
as personnel with other progressive illnesses, as specified in DoD
Directive 1332.18. /1/ Medical evaluation shall be conducted in
accordance with the standard clinical protocol, as described in the
Standard Clinical Protocol. /2/ Individuals with serologic evidence of
HIV-1 infection who are fit for duty shall not be retired or separated
solely on the basis of serologic evidence of HIV-1 infection. AD
personnel with serological evidence of HIV-1 infection or who are ELISA
repeatedly reactive, but WB negative or indeterminate, shall be advised
to refrain from donating blood.
(d) Deny eligibility for extended AD (duty for a period of more than
30 days) to those Reserve component members with serologic evidence of
HIV-1 infection (except under conditions of mobilization and on the
decision of the Secretary of the Military Department concerned).
Reserve component members who are not on extended AD or who are not on
extended full-time National Guard duty, and who show serologic evidence
of HIV-1 infection, shall be transferred involuntarily to the Standby
Reserve only if they cannot be utilized in the Selected Reserve.
(e) Retire or separate AD or Reserve Service members infected with
HIV-1 who are determined to be unfit for further duty, as implemented in
DoD Directive 1332.18.
(f) Ensure the safety of the blood supply through policies of the
Head of the Armed Services Blood Program Office, the FDA guidelines, and
the accreditation requirements of the Head of the American Association
of Blood Banks.
(g) Comply with applicable statutory limitations on the use of the
information obtained from a Service member during, or as a result of, an
epidemiologic assessment interview and the results obtained from
laboratory tests for HIV-1, as provided in this part.
(h) Control transmission of HIV-1 through an aggressive disease
surveillance and health education program.
(i) Provide education and voluntary HIV-1 serologic screening for DoD
healthcare beneficiaries (other than Service members).
(j) Comply with host-nation requirements for HIV-1 screening of DoD
civilian employees, as described in appendix B to this part.
/1/ Copies may be obtained at cost, from the National Technical
Information Services, 5285 Port Royal Road, Springfield, VA 22161.
/2/ Forward requests for copies to the Office of the Assistant
Secretary of Defense (Health Affairs), the Pentagon, Washington, DC
20301-1200.
32 CFR 58.5 Responsibilities.
(a) The Assistant Secretary of Defense (Health Affairs), in
coordination with the Assistant Secretary of Defense (Force Management
and Personnel) (ASD(FM&P)), the General Counsel of the Department of
Defense (GC, DoD), and the Assistant Secretary of Defense (Reserve
Affairs), is responsible for establishing policies, procedures, and
standards for the identification, surveillance, and administration of
personnel infected with HIV-1. The Assistant Secretary of Defense
(Health Affairs) (ASD(HA)) shall provide overall policy guidance and
approval for the HIV-1 and/or AIDS education and information efforts and
shall establish the HIV-1 and/or AIDS Information and Education
Coordinating Committee.
(b) The Secretaries of the Military Departments shall establish
Service policies, procedures, and standards for the identification,
surveillance, education, and administration of personnel infected with
HIV-1, based on and consistent with all sections of this part.
(c) The Assistant Secretary of Defense (Force Management and
Personnel) shall establish and revise policies governing HIV-1 screening
of DoD civilian employees assigned to, performing official travel in, or
deployed on ships with ports of call at host nations, in coordination
with the ASD(HA), the Assistant Secretary of Defense (International
Security Affairs), and the GC, DoD.
(d) The Assistant Secretary of Defense (International Security
Affairs) shall identify or confirm host-nation HIV-1 screening
requirements for DoD civilians, transmit this information to the
ASD(FM&P), and coordinate requests for screening with the Secretary of
State.
(e) The Heads of the DoD Components shall implement HIV-1 screening
policies and procedures for DoD civilian employees identified in
58.5(c) and shall take the following actions:
(1) Report newly established host-nation HIV-1 screening requirements
to the ASD(FM&P) and provide sufficient background information to
support a decision. This reporting requirement is exempt from
licensing, in accordance with DoD 7750.5-M, /3/ paragraph E.4.b.
(2) Develop and distribute policy implementing instructions.
(3) Establish procedures to notify individuals who are evaluated as
HIV-1 seropositive and provide initial counseling to them.
/3/ See footnote 1 to 58.4(c)
32 CFR 58.6 Procedures.
(a) Applicants for Military Service and, periodically, AD and Reserve
component military personnel shall be screened for serologic evidence of
HIV-1 infection. Testing and interpretation of results shall be in
accordance with the procedures in HIV-1 Testing and Interpretation of
Results. /4/ Test results shall be reported to the Reportable Disease
Data Base, as described in the ASD(HA) Memorandum.
(b) Applicants for enlisted service shall be screened at the Military
Entrance Processing Stations or the initial point of entry to Military
Service. Applicants who enlist under a delayed enlistment program, but
before entry on AD and who exhibit serologic evidence of HIV-1
infection, may be discharged due to erroneous enlistment.
(c) Officer candidates shall be screened during their preappointment
and/or precontracting physical examination. The disposition of officer
applicants who are ineligible for appointment due to serologic evidence
of HIV-1 infection shall be in accordance with the procedures in
appendix A of this part.
(d) Applicants for Reserve components shall be screened during the
normal entry physical examinations or in the preappointment programs
established for officers. Those individuals with serologic evidence of
HIV-1 infection who are required to meet accession medical fitness
standards to enlist, or be appointed, are not eligible for Military
Service with the Reserve components.
(e) Initial testing and periodic retesting of AD and Reserve
component personnel shall be accomplished in the priority listed in
Disease Surveillance and Health Education. /5/
(f) AD personnel (including Active Guard and/or Reserve) who exhibit
serologic evidence of HIV-1 infection shall receive a medical
evaluation. Guard and Reserve personnel, not on extended AD, must
obtain a medical evaluation from a civilian physician.
(g) The Head of each Military Service shall appoint an HIV-1 and/or
AIDS education program coordinator to serve as the focal point for all
HIV-1 and/or AIDS education program issues and to integrate the
educational activities of the medical and personnel departments.
(h) An HIV-1 and/or AIDS Information and Education Coordinating
Committee shall be established to enhance communication among the Heads
of the Military Services, recommend joint education policy and program
actions, review education program implementation, and recommend
methodologies and procedures for program evaluation. That committee
shall be chaired by a representative of the ASD(HA). Members shall
include two representatives from the Office of the ASD(FM&P)
(OASD(FM&P)), and the HIV-1 and/or AIDS education program coordinator
from each Military Service. Additional members shall represent the
Armed Services Blood Program Office and, on an ad hoc basis, the Office
of the ASD(HA). Policy and program proposals shall be coordinated with
the Secretaries of the Military Departments.
(i) The Head of each Military Service shall prepare a plan for the
implementation of a comprehensive HIV-1 and/or AIDS education program
that includes specific objectives with measurable action steps. The
plan shall address information, education, and behavior-change
strategies, as described in Disease Surveillance and Health Education.
(j) Civilians may not be mandatorily tested for serologic evidence of
HIV-1 infection except as necessary to comply with valid host-nation
requirements for screening of DoD employees. Procedures for mandatory
screening of DoD civilians shall be in accordance with appendix B of
this part.
(k) The medical assessment of each exposure to, and/or case of, HIV-1
infection seen at a military medical treatment facility (MTF) shall
include an epidemiological assessment of the potential transmission of
HIV-1 to other persons at risk of infection, including sexual and other
intimate contacts and family of the patient, and transfusion history.
The occurrence of HIV-1 infection or serologic evidence of HIV-1
infection may not be used as a basis for any disciplinary action against
an individual, except as described in Limitations on the Use of
Information. /6/
(l) Each Head of a military medical service shall ensure conduction
of an ongoing clinical evaluation of each AD Service member with
serological evidence of HIV-1 infection at least annually. CD4
lymphocyte percentages or counts shall be monitored at least every 6
months. Appropriate preventive medicine counseling shall also be
provided to all individual patients, and public health education
materials shall be made available to that medical services' beneficiary
population. Each Head of a military medical service shall ensure
conduction of longitudinal clinical evaluations of AD Service members
with serologic evidence of HIV-1 infection and shall ensure preparation
of internal reports to facilitate timely review and reassessment of
current policy guidelines.
(m) All Heads of the military MTFs shall notify promptly the
cognizant military health authority, when there is clinical or
laboratory evidence indicative of infection with HIV-1, in accordance
with appendix C of this part.
(n) The Secretary of each Military Department shall ensure that a
mechanism is established to gather data on the epidemiology of HIV-1
infection of its members. Such epidemiological research shall be
accomplished to ensure appropriate protection of information given by
the Service member on the means of transmission.
(o) The Secretary of the Army, as the Head of the lead Agency for
infectious disease research within the Department of Defense, shall
budget for and fund tri-Military Department DoD HIV-1 research efforts,
in accordance with guidance provided by the ASD(HA). The research
program shall focus on the epidemiology and natural history of HIV-1
infections in military and military associated populations; on
improving the methods for rapid diagnosis and patient evaluation; and
on studies of the immune response to HIV-1 infection, including the
potential for increased risk in the military operational environment.
(p) Service members with serologic evidence of HIV-1 infection shall
be assigned within the United States, including Alaska, Hawaii, and
Puerto Rico, due to the high priority assigned to the continued medical
evaluation of military personnel. The Secretaries of the Military
Departments may restrict such individuals to nondeployable units or
positions for purposes of force readiness. To protect the health and
safety of Service members with serologic evidence of HIV-1 infection and
of other Service members (and for no other reason), the Secretaries of
the Military Departments may, on a case-by-case basis, limit assignment
of HIV-1-infected individuals on the nature and location of the duties
performed in accordance with operational requirements.
(q) AD and Reserve component personnel with serologic evidence of
HIV-1 infection shall be retained or separated in accordance with
Retention and Separation. /7/
(r) The ASD(HA), in coordination with the Heads of the Military
Services, shall revise Standard Clinical Protocol, HIV-1 Testing and
Interpretation of Results, Disease Surveillance and Health Education,
Procedure for Evaluating T-Helper Cell Count, as appropriate. The
ASD(FM&P) shall revise appendix B to this part, as appropriate, through
publication in the Federal Register. Revisions under this paragraph
shall be in coordination with the GC, DoD.
/4/ See footnote 2 to 58.4(c)
/5/ See footnote 2 to 58.4(c).
/6/ See footnote 2 to 58.4(c).
/7/ See footnote 2 to 58.4(c).
32 CFR 58.6 Pt. 58, App. A
32 CFR 58.6 Appendix A to Part 58 -- Administration of Officer
Applicants
Administration of officer applicants who are ineligible for
appointment, due to serologic evidence of HIV-1 infection, shall be in
accordance with the following provisions:
A. Enlisted members who are candidates for appointment through
Officer Candidate School (OCS) or Officer Training School (OTS) programs
shall be disenrolled immediately from the program. If OCS and/or OTS is
the individual's initial entry training, the individual shall be
discharged. If the sole basis for discharge is serologic evidence of
HIV-1 infection, an honorable or entry-level discharge, as appropriate,
shall be issued. A candidate who has completed initial entry training
during the current period of service before entry into candidate status
shall be administered in accordance with Service regulations for
enlisted personnel.
B. Individuals in preappointment programs, such as Reserve Officer
Training Corps (ROTC) and Health Professions Scholarship Program
participants, shall be disenrolled from the program. However, the Head
of the Military Service concerned, or the designated representative, may
delay disenrollment to the end of the academic term (i.e., semester,
quarter, or similar period) in which serologic evidence of HIV-1
infection is confirmed. Disenrolled participants shall be permitted to
retain any financial support through the end of the academic term in
which the disenrollment is effected. Financial assistance received in
these programs is not subject to recoupment, if the sole basis for
disenrollment is serologic evidence of HIV-1 infection.
C. Service academy cadets, midshipmen, and personnel attending the
Uniformed Services University of the Health Sciences (USUHS) shall be
separated from the respective Service academy or USUHS and discharged.
The Head of the Military Service concerned, or the designated
representative, may delay separation to the end of the current academic
year. A cadet or midshipman granted such a delay in the final academic
year, who is otherwise qualified, may be graduated without commission
and, thereafter, discharged. If the sole basis for discharge is
serologic evidence of HIV-1 infection, an honorable discharge shall be
issued.
D. Commissioned officers in DoD-sponsored professional education
programs leading to appointment in a professional military specialty
(including, but not limited to, medical, dental, chaplain, and legal
and/or judge advocate) shall be disenrolled from the program at the end
of the academic term in which serologic evidence of HIV-1 infection is
confirmed. Disenrolled officers shall be administered in accordance
with Service regulations. Except as specifically prohibited by statute,
any additional Service obligation incurred by participation in such
programs shall be waived, and financial assistance received in these
programs shall not be subject to recoupment. Periods spent by such
officers in these programs shall be applied fully toward satisfaction of
any preexisting Service obligation.
E. All personnel disenrolled from officer programs who are to be
separated shall be given appropriate counseling, to include preventive
medicine counseling and advice to seek treatment from a civilian
physician.
32 CFR 58.6 Pt. 58, App. B
32 CFR 58.6 Appendix B to Part 58 -- HIV-1 Testing of DoD Civilian
Employees
A. Requests for authority to screen DoD civilian employees for HIV-1
shall be directed to the ASD(FM&P). Only requests that are based on a
host-nation HIV-1 screening requirement shall be accepted. Requests
based on other concerns, such as sensitive foreign policy or medical
healthcare issues, shall not be considered under this part. Approvals
shall be provided in writing by the ASD(FM&P). Approvals shall apply to
all of the Heads of the DoD Components that may have activities located
in the host nation.
B. Specific HIV-1 screening requirements may apply to DoD civilian
employees currently assigned to positions in the host nation, and to
prospective employees. When applied to prospective employees, HIV-1
screening shall be considered as a requirement imposed by another nation
that must be met before the final decision to select the individual for
a position or before approving temporary duty or detail to the host
nation. The Secretary of Defense has made no official commitment, for
positions located in host nations with HIV-1 screening requirements, to
those individuals who refuse to cooperate with the screening requirement
or to those who cooperate and are diagnosed as HIV-1 seropositive.
C. DoD civilian employees who refuse to cooperate with the screening
requirement shall be treated, as follows:
1. Those who volunteered for the assignment, whether permanent or
temporary, shall be retained in their official position without further
action and without prejudice to employee benefits, career progression
opportunities, or other personnel actions to which those employees are
entitled under applicable law or regulation.
2. Those who are obligated to accept asssignment to the host nation
under the terms of an employment agreement, regularly scheduled tour of
duty, or similar and/or prior obligation may be subjected to an
appropriate adverse personnel action under the specific terms of the
employment agreement or other authorities that may apply.
3. Host-nation screening requirements, which apply to DoD civilian
employees currently located in that county, also must be observed.
Appropriate personnel actions may be taken, without prejudice to
employee rights and privileges, to comply with the requirements.
D. Individuals who are not employed in the host nation, who accept
the screening, and who are evaluated as HIV-1 seropositive shall be
denied the assignment on the basis that evidence of seronegativity is
required by the host nation. If denied the assignment, such DoD
employees shall be retained in their current positions without
prejudice. Appropriate personnel actions may be taken, without
prejudice to employee rights and privileges, on DoD civilian employees
currently located in the host nation. In all cases, employees shall be
given proper counseling and shall retain all the rights and benefits to
which they are entitled, including accommodations for the handicapped as
in the ASD(FM&P) Memorandum /1/ ''Information and Guidance on Human
Immunodeficiency Virus (HIV)'' January 22, 1988 and FPM Bulletin, 792-42
/2/ and for employees in the United States (29 U.S.C. 794). Non-DoD
employees should be referred to appropriate support service
organizations.
E. Some host nations may not bar entry to HIV-1-seropositive DoD
civilian employees, but may require reporting of such individuals to
host-nation authorities. In such cases, DoD civilian employees who are
evaluated as HIV-1 seropositive shall be informed of the reporting
requirements. They shall be counseled and given the option of declining
the assignment and retaining their official positions without prejudice
or notification to the host nation. If assignment is accepted, the
requesting authority shall release the HIV-1 seropositive result, as
required. Employees currently located in the host nation may also
decline to have seropositive results released. In such cases, they may
request and shall be granted early return at Government expense or other
appropriate personnel action without prejudice to employee rights and
privileges.
F. A positive confirmatory test by WB must be accomplished on an
individual if the screening test (ELISA) is positive. A civilian
employee may not be identified as HIV-1 antibody positive, unless the
confirmatory test (WB) is positive. The clinical standards in this
Directive shall be observed during initial and confirmatory testing.
G. Procedures shall be established by the Heads of the DoD Components
to protect the confidentiality of test results for all individuals,
consistent with the ASD(FM&P) Memorandum and DoD Directive 5400.11. /3/
H. Tests shall be provided by the Heads of the DoD Components at no
cost to the DoD civilian employees, including applicants.
I. DoD civilian employees infected with HIV-1 shall be counseled
appropriately.
/1/ See footnote 2 to 58.4(c).
/2/ See footnote 2 to 58.4(c).
/3/ See footnote 1 to 58.4(c).
32 CFR 58.6 Pt. 58, App. C
32 CFR 58.6 Appendix C to Part 58 -- Personnel Notification and
Epidemiological Investigation
1. On notification by a medical health authority of an individual
with serologic or other laboratory or clinical evidence of HIV-1
infection, the cognizant military health authority shall undertake
preventive medicine intervention, including counseling of the individual
and others at risk of infection, such as his or her sexual contacts (who
are military healthcare beneficiaries), on transmission of the virus.
The cognizant military health authority shall coordinate with the Heads
of the military and civilian blood bank organizations and preventive
medicine authorities to trace back possible exposure through blood
transfusion or donation of infected blood (ASD(HA)) Memorandum and refer
appropriate case-contact information to the appropriate military or
civilian health authority.
2. All individuals with serologic evidence of HIV-1 infection who are
military healthcare beneficiaries shall be counseled by a physician or a
designated healthcare provider on the significance of a positive
antibody test. They shall be advised as to the mode of transmission of
that virus, the appropriate precautions and personal hygiene measures
required to minimize transmission through sexual activities and/or
intimate contact with blood or blood products, and of the need to advise
any past sexual partners of their infection. Women shall be advised of
the risk of perinatal transmission during past, current, and future
pregnancies. The infected individuals shall be informed that they are
ineligible to donate blood and shall be placed on a permanent donor
deferral list.
3. Service members identified to be at risk shall be counseled and
tested for serologic evidence of HIV-1 infection. Other DoD
beneficiaries, such as retirees and family members, identified to be at
risk shall be informed of their risk and offered serologic testing,
clinical evaluation, and counseling. The names of individuals
identified to be at risk who are not eligible for military healthcare
shall be provided to civilian health authorities in the local area where
the index case is identified, unless prohibited by the appropriate State
or host-nation civilian health authority. Such notification shall
comply with the Privacy Act (5 U.S.C. 552a). Anonymity of the HIV-1
index case shall be maintained, unless reporting is required by civil
authorities.
4. Blood donors who demonstrate repeatedly reactive ELISA tests for
HIV-1, but for whom WB or other confirmatory test is negative or
indeterminate, and who cannot be reentered into the blood donor pool
shall be appropriately counseled.
1. Epidemiological investigation shall attempt to determine potential
contacts of patients who have serologic or other laboratory or clinical
evidence of HIV-1 infection. The patient shall be informed of the
importance of case-contact notification to interrupt disease
transmission and shall be informed that contacts shall be advised or
their potential exposure to HIV-1. Individuals at risk of infection
include sexual contacts (male and female); children born to infected
mothers; recipients of blood, blood products, organs, tissues, or
sperm; and users of contaminated intravenous drug paraphernalia. Those
individuals determined to be at risk who are identified and who are
eligible for healthcare in the military medical system shall be
notified. Additionally, the Secretaries of the Military Departments
shall provide for the notification, either through local public health
authorities or by DoD healthcare professionals, of the spouses of
Reserve component members found to be HIV-1-infected. Such
notifications shall comply with the Privacy Act (5 U.S.C. 552a). The
Secretaries of the Military Departments shall designate all spouses
(regardless of the Service affiliation of the HIV-1-infected Reservist)
who are notified under this provision to receive serologic testing and
counseling on a voluntary basis from MTFs under the Secretaries' of the
Military Departments jurisdiction.
2. Communicable disease reporting procedures of civil authorities
shall be followed to the extent consistent with this Directive through
liaison between the military public health authorities and the
appropriate local, State, territorial, Federal, or host-nation health
jurisdiction.
32 CFR 58.6 PART 59 -- VOLUNTARY MILITARY PAY ALLOTMENTS
Sec.
59.1 Purpose.
59.2 Applicability.
59.3 Policy.
59.4 Responsibilities.
Authority: 37 U.S.C. Chapter 13.
Source: 52 FR 34215, Sept. 10, 1987, unless otherwise noted.
32 CFR 59.1 Purpose.
This part updates the policies that implement title 37 U.S. Code,
Chapter 13 and govern voluntary allotments of pay and allowances for
active and retired members.
32 CFR 59.2 Applicability.
This part applies to the Office of the Secretary of Defense and the
Military Departments. The term ''Military Service,'' as used herein,
refers to the Army, Navy, Air Force, and Marine Corps.
32 CFR 59.3 Policy.
(a) General. (1) The voluntary allotment system is provided
primarily as a means to assist military members in accommodating their
personal and family financial responsibilities to the exigencies of
military service. It is a convenience and privilege not to be exploited
or abused. To avoid unjustifiable expense to the government, its use
shall be limited to the purposes outlined in the following paragraphs.
(2) All existing approved registered allotments of military pay and
allowances for active duty and retired members that were authorized
previously by this part at the time registered may be continued as
approved allotments. However, if any such allotments are discontinued,
they may not be reestablished except as a new allotment in accordance
with the requirements of this part. Any change in the allotment that is
initiated by the service member is considered a discontinuance, except
those that are beyond the control of the service member.
(3) Changes beyond the control of the service member are changes that
are of an administrative nature dictated by events incidental to the
purpose of the allotment. Examples of administrative changes that are
beyond the control of the service member are: name and address changes
by the payee or amount changes due to contractual obligation existing at
the time the allotment was executed, such as a mortgage payment change
because of a variable rate mortgage or changing escrow requirements.
Although the changes given above do not constitute a discontinuance,
such administrative changes that adjust the amount of the allotment
shall be accepted only when communicated by the service member on a new
allotment request. Discontinuance occurs with any mortgage refinancing
action.
(4) A change in allotment initiated by an organizational allottee may
be accepted when the change is documented properly, is of an
administrative nature, and does not increase the amount allotted.
(b) Active Military Service. Voluntary allotments of military pay
and allowances of service members in active military service shall be
limited to the following:
(1) The purchase of U.S. savings bonds.
(2) The payment of premiums for insurance on the life of the
allotter, including U.S. Government Life Insurance, National Service
Life Insurance, Veterans Group Life Insurance, Navy Mutual Aid
Insurance, Army Mutual Aid Insurance, and commercial life insurance.
(i) Allotments for insurance on the lives of a spouse or children.
(ii) Allotments for health, accident, or hospitalization insurance or
other contracts that, as a secondary or incidental feature, include
insurance on the life of the service member are not authorized.
(iii) Requests to initiate commercial life insurance allotments shall
be processed only after compliance with requirements of 32 CFR Part 276.
(3) The repayment of loans to the Navy Relief Society, Army Emergency
Relief, Air Force Aid Society, and American Red Cross.
(4) Allotments to a spouse, former spouses, other dependents, and
relatives who are not designated legally as dependents. The payment of
such an allotment to a financial institution or association shall not
deprive a service member of the use of the allotments authorized by
paragraph (b)(6) of this section.
(5) The voluntary liquidation of indebtedness to the United States.
(i) This includes indebtedness incurred by reason of defaulted notes
insured by the Federal Housing Administration or guaranteed by the
Veterans Administration (VA); payment of amounts due under the Retired
Serviceman's Family Protection Plan, in the case of retired service
members serving on active duty; payment of delinquent Federal income
taxes; and other indebtedness to any department or agency of the U.S.
Government, except to the department paying the service member.
(ii) This includes repayment of debts owed to an organization for
funds administered on behalf of the U.S. Government and any such debts
assigned to a collection agency.
(6) The payment to a financial organization for credit to an account
of the service member. A financial organization is any bank, savings
bank, savings and loan association or similar institution, or Federal or
state chartered credit union. Monies thus credited to the service
member's account may then be used for any purpose in accordance with the
desires and direction of the service member. No more than two such
allotments under this paragraph shall be allowed any service member at
any one time.
(7) Repayment of loans obtained for the purchase of a home, including
a mobile home or house trailer used as a residence by the service
member. This does not authorize repayment of loans for business
purposes or for additions or improvements to homes, mobile homes, or
house trailers. Allotments authorized herein are in addition to those
authorized under paragraph (b)(6) of this section. Only one such
allotment shall be allowed any service member at any one time.
(8) Charitable contributions to the following:
(i) A Combined Federal Campaign, in accordance with DOD Directive
5035.1, ''Fund-Raising Within the Department of Defense,'' April 7,
1978, and DOD Instruction 5035.5, ''DoD Combined Federal
Campaign-Overseas Areas (CFC-OA),'' August 23, 1978.
(ii) Army Emergency Relief, Navy Relief Society, or affiliates of the
Air Force Assistance Fund.
(9) Deposits to the account of a service member participating in the
Uniformed Services Savings Deposit Program under 10 U.S.C. 1035. This
program is limited to service members in a missing status as a result of
the Vietnam conflict.
(10) Allotments to the VA for deposit to the Post-Vietnam Era
Veterans Education Account within the periodic and cumulative depository
limitations specified in DOD Directive 1322.8, ''Voluntary Educational
Programs for Military Personnel,'' July 23, 1987. Once authorized by
the service member, the allotments must run a minimum of 12 consecutive
months, unless the service member suspends participation or disenrolls
from the program because of personal hardship
(11) Payment of delinquent state or local income or employment taxes.
(12) Dental and health insurance allotments for the benefit of the
families of service members.
(c) Retired military personnel. (1) Voluntary allotments be service
members receiving retired or retainer pay shall be limited to the
following:
(i) Purchase of U.S. savings bonds.
(ii) Payment of premiums for insurance on the life of the service
member including U.S. Government Life Insurance, National Service Life
Insurance, Veterans Group Life Insurance, Navy Mutual Aid Insurance,
Army Mutual Aid Insurance, and commercial life insurance, subject to the
limitations prescribed in paragraph (b)(2) (i) and (ii) of this section.
(iii) Voluntary liquidation of indebtedness to the United States,
subject to the limitations prescribed in paragraph (b)(5) of this
section --
(iv) Allotments to a spouse, former spouse, and/or children of the
retired service member having a permanent residence other than that of
the retired service member.
(v) Charitable contributions to the Army Emergency Relief, Navy
Relief Society, or affiliates of the Air Force Assistance Fund.
(vi) The repayment of loans to the Army Emergency Relief, Navy Relief
Society, Air Force Aid Society, or American Red Cross.
(2) To assist personnel in the transition from active duty to retired
status, all allotments authorized for active duty service members may be
continued, except those allotments in paragraph (b) (8)(i), (9) and (10)
of this section. However, if an allotment continued from active duty,
but not authorized by paragraph (c)(1) of this section is discontinued
by the retiree, such an allotment may not be reestablished.
(d) Exclusions and Restrictions. (1) The amount of pay and
allowances that may be allotted shall exclude amounts required to be
withheld for taxes, liquidations of indebtedness determined under
applicable provisions of law to be chargeable against the service
member's pay account, or required premiums on Servicemen's Group Life
Insurance.
(2) The total amount that may be allotted shall comply with the
restrictions in the DOD Military Pay and Allowances Entitlements Manual
and DOD 1340.12-M, ''DOD Military Retired Pay Manual.''
(e) Control and use of forms. (1) Allotment requests shall be
accepted only on authorized allotment forms, unless otherwise provided
in this part. Supplies of allotment forms shall not be made available
to non-Federal organizations, except that each Military Department may
authorize issuance of forms to the Army Emergency Relief, Navy Relief
Society, the Air Force Aid Society, and American Red Cross.
(2) Active duty enlisted service members shall sign the allotment
authorization form in the presence of the service member's commanding
officer, personnel or disbursing officer, or one of their representative
who shall witness the signature. The Military Departments may waive
this requirement for senior enlisted service members and loan repayment
allotments payable to the Army Emergency Relief, Navy Relief Society,
the Air Force Aid Society, and American Red Cross.
(3) Charitable contribution allotment requests by enlisted members
may be accepted without a witnessing official, when submitted on
contribution forms in accordance with DOD Directive 5035.1 and DOD
Instruction 5035.5.
(4) Retired military personnel need not submit allotment requests on
the prescribed forms. A signed personal letter may be used to support
an allotment request, change, or cancellation by retired military
members as long as all required information is provided.
32 CFR 59.4 Responsibilities.
(a) The Assistant Secretary of Defense (Comptroller) shall exercise
primary management responsibility for the voluntary military pay
allotment program and provide assistance to the Military Departments in
the form of instructions, requirements, reviews, and other guidance.
(b) The Secretaries of the Military Departments shall ensure that
this part is implemented by the Military Services concerned.
32 CFR 59.4 PART 60 -- DEPARTMENT OF DEFENSE DRUG ABUSE TESTING PROGRAM
Sec.
60.1 Purpose.
60.2 Applicability.
60.3 Policy and responsibilities.
60.4 Periodic review.
60.5 Testing criteria and geographic areas of responsibility.
Authority: Sec. 301, 80 Stat. 379; 5 U.S.C. 301.
Source: 37 FR 7791, Apr. 20, 1972, unless otherwise noted.
32 CFR 60.1 Purpose.
This part establishes requirements for a systematic drug abuse
testing program of military personnel on extended duty; to provide for
early identification of individuals who require treatment and
rehabilitation; to develop improved data on prevalence rates of drug
abuse by area; and to provide a degree of deterrence for certain
individuals.
32 CFR 60.2 Applicability.
The provisions of this part apply to the Departments of Army, Navy,
and Air Force.
32 CFR 60.3 Policy and responsibilities.
(a) General. All members of the United States Army, Navy, Marine
Corps, and Air Force on extended active duty will be screened annually
using a method of random testing. Biochemical testing of urine samples
is the acceptable screening method, with tests sufficiently sensitive to
identify to a high degree of certainty those individuals who, at the
time of testing, are excreting the drugs in question. Since biochemical
tests cannot differentiate drug abusers from legitimate users, medical
evaluation is essential to arrive at a diagnosis. Thus, for those
individuals who may be identified as positive through the biochemical
screen, medical evaluation provides the only means of differentiating
drug dependent individuals, casual drug abusers, legitimate drug users,
and false positives.
(b) Characteristics and establishment of the random testing program.
(1) The overall objectives of the random testing program are to provide
a deterrent effect on experimental and casual users, and enable earlier
detection of drug abusers thereby enhancing their recovery from the drug
abuse syndrome prior to serious physical or psychological deterioration.
(2) The detection rate is calculable in advance as a function of the
number of days per year an individual uses drugs and the proration of
tests performed on each man per year. This program will generate data
which may also be used to identify drug abuse trends, and geographic
risk areas. Also the frequency of testing may be increased to better
the odds of detecting an individual during his most vulnerable periods
of service.
(3) The concept of the random testing program establishes a procedure
to attain the maximum realistic detection capability within certain
prescribed criteria. Although the guidance contained in Optimized
Method of Random Testing. DASD(DAA) No. 1-721021 is of a detailed
nature, its provision is for information and assistance only. The
services are authorized to develop their own random testing program
utilizing the following criteria:
(i) Ensure a relatively constant workload on the urine testing labs.
(ii) Provide a completely random system of selecting those to be
tested so that an individual's chances for testing will remain
relatively constant throughout the year.
(iii) Be completely unannounced to the individuals tested.
(iv) Be invulnerable to prediction by the subjects based upon
historical analysis.
(v) Be capable of adjusting to changing requirements.
(vi) Use the testing frequencies prescribed in 60.5 for guidance.
(c) Laboratory methodology. The military departments will develop
standardized laboratory procedures for detection of users of drugs of
abuse consistent with the following:
(1) Determine the specific gravity on each sample. Individuals whose
samples are found to be less than 1.010 specific gravity will be
required to submit another specimen for testing.
(2) Collect urine specimens for testing under direct observation,
minimum volume 50 milliliters, properly label for positive
identification and forward to the laboratory under secure conditions
without preservation or refrigeration to arrive within 5 days of
specimen collection.
(3) For drug screening, apply a single set of drug detection
sensitivity levels, regardless of the screening method used, as follows:
(i) Total Morphine -- 0.5 microgram/milliliter
(ii) Methadone/Codeine -- 1.0 microgram/milliliter
(iii) Amphetamines -- 5.0 microgram/milliliter
(iv) Barbiturates -- 1.0 microgram/milliliter
(4) For laboratory confirmation use gas liquid chromatography.
(5) The laboratory will report electrically, within 48 hours of
receipt of the specimen, confirmed positive results to the originating
agency for medical evaluation. A written follow-up report of results
will be provided on all specimens received.
(d) Quality control. Pursuant to authority in 37 FR 3772, Secretary
of the Army is designated the Executive Agent for coordinating quality
control of the drug detection program of the military departments. The
objective is to establish a single quality control program applicable to
all in-service laboratories of the military departments and to civilian
contract laboratories, with the quality control activity performed by
the Armed Forces Institute of Pathology. Each of the services will
support as necessary the Army's function as quality control agent for
the triservice urine testing program. The provisions of the Armed
Services Procurement Regulations 32 CFR Parts 1-30 will be observed in
contractual arrangements with civilian agencies.
(e) Geographic area testing responsibilities. 2022 The assigned
geographic areas of responsibility for drug testing are shown in Section
II of 60.5(b) below. Since they vary in their drug prevalence and
military populations, a redistribution of testing assignments may be
made in the future. The designated drug risk areas and frequency of
testing shown in the Testing Criteria ( 60.5(a)) were determined in
accordance with drug abuse experience or predicted drug availability.
(f) Service personnel to be tested. (1) All members of the Army,
Navy, Marine Corps, and Air Force on extended active duty will be tested
in accordance with random methods to at least the minimum frequencies
prescribed herein. In addition, certain mandatory event testing is
required:
(i) Initial entry into active duty.
(ii) DEROS (Vietnam and Thailand).
(iii) First reenlistments.
(2) The following types of military personnel are classified as high
risk, for testing purposes, and shall be tested at a more frequent rate:
(i) Drug rehabilitants undergoing treatment at rehabilitation
centers.
(ii) Staff members supporting rehabilitation efforts.
(iii) Rehabilitatees on return to duty.
(3) Schedules of testing for the foregoing are included in testing
criteria ( 60.5(a)).
0211Filed as part of original. Extra copies available from each
military service.
0222Illustrative map -- filed as part of original.
32 CFR 60.4 Periodic review.
Review of the testing program will be conducted on a semiannual basis
with notice provided by ASD(H&E) or his designee. For planning purposes
the first review will be a triservice conference scheduled for July
1972.
32 CFR 60.5 Testing criteria and geographic areas of responsibility. 2
(a) Testing criteria -- (1) Random testing frequency. (i) High Risk
Areas -- Average 3.0 Tests Per Person/Year:
(a) Vietnam
(b) Thailand
(c) Philippines
(d) Okinawa;
(ii) Moderate Risk Areas -- Average 1.6 Tests Per Person/Year:
(a) Korea
(b) West Coast CONUS3024
(c) Northeast Coast CONUS4025
(d) Taiwan;
(iii) Minimum Risk Areas-Average 1.2 Tests Per Person/Year. All
other geographical areas not listed above.
(2) Mandatory event testing. (i) Initial entry into Service and
first reenlistment.
(ii) DEROS -- Vietnam and Thailand.
(iii) Drug rehabilitation patients -- a minimum of two tests per
week.
(iv) Drug rehabilitation staff -- one test per week, date selected
randomly.
(v) Rehabilitatees on return to duty -- twice a month for the first
year after return to duty.
(vi) Commanders are allowed the flexibility of implementing tests
peculiar to local areas or for local determined needs providing the
military service responsible for the geographic area testing agrees that
laboratories supporting such tests are capable of handling the extra
load.
(b) Geographical areas of responsibility.
2Illustrative map -- filed as part of original.
0243California, Oregon, Washington.
0254Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode
Island.
32 CFR 60.5 PART 61 -- MEDICAL MALPRACTICE CLAIMS AGAINST MILITARY AND
CIVILIAN PERSONNEL OF THE ARMED FORCES
Sec.
61.1 Purpose.
61.2 Applicability.
61.3 Delegation of authority.
61.4 Procedures.
Authority: Pub. L. 94-464, sec. 1(a), 90 Stat. 1985, 10 U.S.C.
1089(f), 2733 and 5 U.S.C. 301.
Source: 43 FR 15148, Apr. 11, 1978, unless otherwise noted.
32 CFR 61.1 Purpose.
This Directive: (a) Delegates authority, with the power to
redelegate, to the Secretaries of the Military Departments to provide
relief to health care personnel of the Department of Defense from
personal tort liability in connection with their authorized activities,
and (b) establishes procedures to be followed in providing such relief.
32 CFR 61.2 Applicability.
The provisions of this Directive apply to the Office of the Secretary
of Defense, the Military Departments, and all other Department of
Defense Components.
32 CFR 61.3 Delegation of authority.
(a) The authority vested in the Secretary of Defense by title 10
U.S.C. section 1089(f) hold harmless or provide liability insurance for
Department of Defense health care personnel is hereby delegated to:
(1) The Secretary of each Military Department for military members
and civilian employees of his Department, and
(2) The Secretary of the Army for civilian employees of the Office of
the Secretary of Defense and Department of Defense Components other than
the Military Departments (see DoD Directive 5515.9).1
(b) The authority delegated above may be redelegated as appropriate
and necessary to carry out the provisions of Title 10, U.S.C., section
1089(f).
1Filed as part of original. Copies may be obtained, if needed, from
the U.S. Naval Publications and Forms Center, 5801 Tabor Avenue,
Philadelphia, Pa. 19120 Attention: Code 301.
32 CFR 61.4 Procedures.
(a) In all cases under title 10 U.S.C. section 1089, medical
personnel shall be required to:
(1) Promptly forward all process served upon them or attested true
copies thereof to the appropriate official designated by the Secretary
of the Military Department concerned;
(2) Furnish such other information and documents as the Attorney
General may request; and
(3) Comply with the directions of the Attorney General relative to
the final disposition of a claim for damages.
(b) The procedures set forth in title 10 U.S.C. section 2733 and
regulations issued pursuant thereto shall be utilized in determining
costs, settlements, or judgments under title 10 U.S.C. section 1089(f).
32 CFR 61.4 PART 62 -- ALCOHOL AND DRUG ABUSE BY DoD PERSONNEL
Sec.
62.1 Purpose.
62.2 Applicability.
62.3 Definitions.
62.4 Policy.
62.5 Responsibilities.
Authority: 5 U.S.C. 301, Pub. L. 92-255, 91-616, 92-129, and
91-513.
Source: 45 FR 61615, Sept. 17, 1980, unless otherwise noted.
32 CFR 62.1 Purpose.
(a) This part states the DoD alcohol and drug abuse prevention
policy, and implements the standards contained in Pub. L. 92-255 (86
Stat 65), as amended, 91-616 (84 Stat 1848), as amended, and 92-129 (85
Stat 361), as amended, and the Federal Personnel Manual (FPM) Supplement
792-2, February 1980.
(b) In addition, this part establishes policy concerning drug abuse
paraphernalia.
32 CFR 62.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense, the Military Departments, the Organization of the Joint Chiefs
of Staff, the Unified and Specified Commands, and the Defense Agencies.
The term ''Military Services'' includes the Army, Navy, Air Force, and
Marine Corps.
32 CFR 62.3 Definitions.
The following definitions are for operational use within the
Department of Defense. They do not change definitions in statutory
provisions and those regulations and directives that are concerned with
determination of misconduct and criminal or civil responsibilities for
persons' acts or omissions.
(a) Alcohol and drug abuse. The use of alcohol and/or other drugs to
an extent that it has an adverse effect on the user's health or
behavior, family, community, or the Department of Defense and/or the
illegal use of such substances.
(b) Drug trafficking. The illegal or wrongful introduction of drugs
into a military installation, with the intent of selling or transferring
the drugs; or the illegal or wrongful sale, transfer, or distribution
of drugs as they are listed in current schedules of the Controlled
Substances Act, Title II, Comprehensive Drug Abuse and Control Act of
1970 (Pub. L. 91-513) (21 CFR Parts 1300-1316).
(c) Alcohol and drug dependence. The reliance on alcohol and/or
other drugs following administration on a periodic or continuing basis.
Dependence may be psychological or physical, or both.
(1) Psychological dependence. The craving for the mental or
emotional effects of a drug that manifests itself in repeated use and
leads to a state of impaired capability to perform normal functions.
(2) Physical dependence. An alteration or state of adaptation to a
drug after repeated use that results in withdrawal symptoms when the
drug is discontinued abruptly and/or the development of tolerance.
(d) Drug abuse paraphernalia. All equipment, products, and materials
of any kind that are used, intended for use, or designed for use, in
planting, propagating, cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing, preparing, testing,
analyzing, packaging, repackaging, storing, containing, concealing,
injecting, ingesting, inhaling, or otherwise introducing into the human
body a controlled substance in violation of the Controlled Substances
Act.
32 CFR 62.4 Policy.
(a) It is the goal of the Department of Defense to be free of the
effects of alcohol and drug abuse; of the possession of and trafficking
in illicit drugs by military and civilian members of the Department of
Defense; and of the possession, use, sale, or promotion of drug abuse
paraphernalia. Alcohol and drug abuse is incompatible with the
maintenance of high standards of performance, military discipline, and
readiness. Therefore, it is the policy of the Department of Defense to:
(1) Assess the alcohol and drug abuse and drug trafficking situation
in or influencing the Department of Defense.
(2) Not induct persons into the Military Services who are alcohol or
drug dependent and not hire persons who are alcohol or drug dependent if
that dependency impairs job performance.
(3) Deter and detect alcohol and drug abuse within the Armed Forces
and defense community and drug trafficking on installations and
facilities under the control of the Department of Defense.
(4) Provide continuing education and training to commanders,
supervisors, program personnel, and other military members and civilian
employees and their families concerning this policy and effective
measures to alleviate problems associated with alcohol and drug abuse.
(5) Treat or counsel alcohol and drug abusers and rehabilitate the
maximum feasible number of them.
(6) Discipline and/or discharge drug traffickers and those alcohol
and drug abusers who cannot or will not be rehabilitated, in accordance
with appropriate laws, regulations, and instructions.
(7) Work in concert with national alcohol and drug abuse prevention
programs, maintaining appropriate relationships with governmental and
nongovernmental agencies.
(8) Prohibit members of the Armed Forces, and DoD civilians while on
the job, to possess, sell, or use drug abuse paraphernalia.
(9) Prohibit the possession or sale of drug abuse paraphernalia by
DoD resale outlets to include military exchanges, open messes, and
commissaries, and by private organizations and concessions located on
DoD installations.
(b) The Department of Defense encourages DoD Components to use, as
guidance and as a legal background in addressing paraphernalia issues,
the Model Drug Paraphernalia Act prepared by the Drug Enforcement
Administration, at the request of the President (Model Drug
Paraphernalia Act, Drug Enforcement, March 1980, Volume 7, No. 1).
(c) Programs and standards of care promulgated in execution of this
policy for military personnel shall be in compliance with Pub. L.
92-129.
(d) Programs and standards of care promulgated in execution of this
policy for civilian employees shall be in compliance with Pub. L.
92-255, Pub. L. 91-616, and FPM Supplement 792-2.
32 CFR 62.5 Responsibilities.
(a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA)), or
designated representative, is responsible for the development,
coordination, and supervision of the DoD alcohol and drug abuse
prevention program, in accordance with this part and shall:
(1) In coordination with the Assistant Secretary of Defense
(Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)), develop and
promulgate policies designed to ensure that the DoD alcohol and drug
abuse prevention programs reach military members, their families, DoD
civilian employees and, to the extent feasible, their families.
Programs and standards of care for family members shall be consistent
with those for the military and civilian components, with accepted
practice in the alcohol and drug abuse area, and with applicable laws
and jurisdictional limitations.
(2) In coordination with the ASD(MRA&L), issue DoD instructions to
implement the DoD alcohol and drug abuse prevention program, with
specific attention to the functional areas of assessment, deterrence and
detection, treatment and rehabilitation, and education and training.
(3) Act as focal point for the Department of Defense for interagency
and nongovernmental coordination of national alcohol and drug abuse
prevention programs.
(4) Evaluate and report upon the effectiveness and efficiency of the
DoD alcohol and drug abuse prevention program.
(5) Establish a DoD Alcohol and Drug Abuse Advisory Committee to
advise on policy and program matters. The Committee shall include
representatives of each Military Service, designated by the Military
Department concerned, and such other advisors as the ASD(HA), or
designated representative, considers appropriate. The Committee charter
shall be approved by the ASD(HA).
(b) The Secretaries of the Military Departments and Directors of
Defense Agencies shall establish and operate programs prescribed by this
part and supporting DoD instructions. They may make exceptions to the
policy contained in this part only for legitimate medical, educational,
and operational purposes. This authority shall not be delegated.
(c) In addition, the Secretaries of the Military Departments shall
require appropriate commanders to assess the availability of drug abuse
paraphernalia in the vicinity of DoD installations through their Armed
Forces Disciplinary Control Boards and in conformity with the Armed
Forces Disciplinary Control Boards and Off-Installation Military
Enforcement Guidance, and take appropriate action, when the availability
of drug abuse paraphernalia reveals a threat to the discipline, health,
welfare, or morals of the Armed Forces.
32 CFR 62.5 PART 62a -- EDUCATION AND TRAINING IN ALCOHOL AND DRUG
ABUSE PREVENTION
Sec.
62a.1 Purpose.
62a.2 Applicability.
62a.3 Definitions.
62a.4 Policy.
62a.5 Responsibilities.
Authority: 10 U.S.C. 133.
Source: 45 FR 84995, Dec. 24, 1980, unless otherwise noted.
32 CFR 62a.1 Purpose.
This Instruction states the DoD education and training policy in
execution of Part 62, ''Alcohol and Drug Abuse by DoD Personnel,''
August 25, 1980.
32 CFR 62a.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense, the Military Departments, the Organization of the Joint Chiefs
of Staff, the Unified and Specified Commands, and the Defense Agencies.
The term ''Military Service'' refers to the Army, Navy, Air Force, and
Marine Corps.
32 CFR 62a.3 Definitions.
(a) Training. Those teaching and learning functions that develop or
improve the competence of health care professionals and
paraprofessionals and those DoD personnel responsible for supervision or
execution of alcohol and drug abuse prevention programs.
(b) Education. Those teaching and learning functions that
indoctrinate, orient, or inform personnel about the DoD alcohol and drug
abuse prevention programs and resources.
(c) DoD civilian employee. A permanent employee of the Department of
Defense who is a U.S. citizen and who is paid from appropriated or
nonappropriated funds.
32 CFR 62a.4 Policy.
(a) The Department of Defense shall educate and/or train all military
commanders, military and civilian supervisors, and program personnel
concerning DoD alcohol and drug abuse prevention policy and effective
measures to alleviate problems associated with alcohol and drug abuse.
Other military and civilian members shall also be provided appropriate
alcohol and drug abuse education. To the extent feasible, education
shall be offered to family members on a voluntary basis.
(b) Specific education or training shall be developed for each of the
following groups and shall include references to both the military and
civilian aspects of the program.
(1) Military personnel -- (i) At initial entry -- (A) Enlisted
personnel. The emphasis of initial entry alcohol and drug abuse
education shall be on prevention. Desired behavior, credible role
models, and healthy alternatives shall be presented as well as the
disciplinary, career, and health consequences of abuse. Recruits shall
also be made aware of counseling and treatment resources and procedures
and their responsibilities, not only to themselves but to their peers.
Alcohol and drug abuse instruction shall be compatible with the
indoctrination of recruits in the standards of discipline, performance,
and behavior required by their particular Military Service. This
education shall be completed before the recruit reports to the first
permanent duty station.
(B) Officer and warrant officer candidates. Education for cadets,
midshipmen, and other officer and warrant officer candidates shall, in
addition to paragraph (b)(1)(i)(A) of this section, emphasize the duties
and responsibilities of junior leaders in the alcohol and drug abuse
prevention effort, to include their responsiblities in creating and
maintaining military discipline and enforcement of the law. The causes,
symptoms and prevalence of abuse, intervention and referral techniques,
and post-treatment responsibilities of junior leaders shall also be
addressed. Education shall be completed before commissioning or within
90 days after entry on active duty.
(C) Health care professionals. During initial orientation classes,
training shall be conducted in the diagnosis, counseling, treatment, and
referral of alcohol and drug abusers, as appropriate, and in the DoD
policy regarding abuse.
(D) Program staff. Training shall normally be conducted and
completed not more than 60 days after assignment for professionals and
paraprofessionals assigned to alcohol and drug abuse program staffs in
those areas relevant to their specific duties.
(ii) At permanent change of station (PCS) -- (A) Service members (E-1
through E-4). Education shall be conducted within 60 days after each
PCS and shall emphasize the legal consequences of abuse under both the
Uniform Code of Military Justice and the local laws, and the
alternatives to abuse available at the local installation and
neighboring community.
(B) Leaders (E-5 through E-9 and Officers). Education shall be
conducted within 60 days after each PCS and shall emphasize the
command-unique elements of the alcohol and drug abuse program, the scope
of the local alcohol and drug abuse problem, local military and civilian
resources, opportunities for continuing education and training, and
their responsibilities for the maintenance of military discipline and
the enforcement of the Uniform Code of Military Justice.
(iii) During Professional or Military Education -- (A) Junior
Officers (0-1 through 0-3) and Noncommissioned Officers (E-5 through
E-7). Education shall emphasize the responsibilities of junior leaders
in the alcohol and drug abuse prevention program, with particular
emphasis on deterrence and detection methods, enforcement, counseling,
motivation skills, intervention and referral techniques, and methods for
monitoring the progress of identified abusers in the unit.
(B) Middle Grade Officers (0-4 and 0-5) and Senior Noncommissioned
Officers (E-8 ad E-9). Education shall emphasize the role and
responsibilities of senior leaders in the function of their installation
or major command's alcohol and drug abuse prevention program. Areas of
particular focus shall be the influence of the senior leader's attitude
about alcohol and drug abuse on subordinates, the reasons for and
benefits derived from the DoD alcohol and drug abuse program, and the
problem of stigma and strategies for diminishing it.
(C) Senior Grade Officers (0-6 and above.) Education shall emphasize
the need for vigorous command support for the alcohol and drug abuse
program, the law enforcement, prevention, and performance aspects of the
problem, the federal response, and the intervention techniques for
senior and executive-level personnel.
(D) Health care personnel. Continuing education and training shall
be provided for health care professionals in those areas of alcohol and
drug abuse relevant to their duties. Areas of particular focus shall be
intervention, diagnosis, counseling, treatment, and referral.
(E) Program staff. Continuing education and training shall be made
available for the program staff, especially for those involved in the
rehabilitation process. Areas of particular focus shall be
intervention, counseling, and educational techniques.
(iv) After an alcohol or drug-related incident. Motivational
education shall be provided for identified abusers who are not
physically or psychologically dependent. Normally, education shall be
conducted after duty hours and shall focus on the influence of the peer
group on behavior, the identification and clarification of the
attendee's attitudes and values, the impact and consequences of
continued abuse, and the application of decisionmaking skills to
resolution of the attendee's alcohol and/or drug abuse problem.
(2) DoD civilian employees -- (i) Nonsupervisors. Orientation shall
be conducted on DoD policy and Military Service or DoD Component
programs regarding alcohol and drug abuse within the first 6 months of
initial employment by the Department of Defense. Orientation shall
emphasize the legal, career, and health consequences of abuse and the
counseling, treatment, and rehabilitation opportunities available.
(ii) Supervisors. Orientation shall be conducted within the first 6
months after designation of supervisory responsibilities. Orientation
shall emphasize the role of the supervisor in the alcohol and drug abuse
prevention program, the symptoms of abuse, especially as they relate to
job performance, intervention and referral techniques, and the
post-treatment responsibilities of the supervisor. Continuing education
shall also be made available on a regular basis by local commands, with
the focus on the command-unique elements of the program and local
prevention and treatment resources.
(iii) Program staff. Training shall be conducted for professionals
and paraprofessionals assigned to alcohol and drug abuse program staffs
in those areas relevant to their specific duties. Training shall be
completed not more than 60 days after assignment. Continuing education
and training shall also be made available for the program staff,
especially for those involved in the rehabilitation process. Areas of
particular focus shall be intervention, counseling, and educational
techniques.
(3) Family members, military and civilian -- (i) DoD dependents
school students. Education shall be conducted annually as part of the
overall health curriculum for those in grades 1 through 12.
(ii) Family members (outside the United States). Education shall be
provided on a voluntary basis and shall emphasize the local alcohol and
drug abuse situation, local alcohol and drug abuse laws, counseling,
treatment, and rehabilitation opportunities and procedures, and
alternatives to abuse available at the local installation and
neighboring community.
(iii) Family members in U.S. locations. Education shall be offered on
a voluntary basis to the extent feasible.
32 CFR 62a.5 Responsibilities.
The Secretaries of the Military Departments and other Heads of DoD
Components shall implement the policy in this part.
32 CFR 62a.5 PART 62b -- DRUNK AND DRUGGED DRIVING BY DoD PERSONNEL
Sec.
62b.1 Purpose.
62b.2 Applicability.
62b.3 Policy.
62b.4 Procedures.
62b.5 Responsibilities.
62b.6 DoD Intoxicated Driving Prevention Task Force.
62b.7 Definitions.
Appendix 1 to Part 62b -- Driver's License Information
Appendix 2 to Part 62b -- State Driver's License Agencies
Authority: 10 U.S.C. 131.
Source: 48 FR 41581, Sept. 16, 1983, unless otherwise noted.
32 CFR 62b.1 Purpose.
This part:
(a) Establishes DoD policy regarding drunk and drugged driving by DoD
personnel (hereafter referred to as ''intoxicated driving'').
(b) Assigns responsibility for and explains DoD policy and procedures
on the establishment and operation of the DoD Intoxicated Driving
Prevention Program, which is designed to address the problem of and
increase the awareness and attention given to intoxicated driving by DoD
personnel.
(c) Establishes the DoD Intoxicated Driving Prevention Task Force
(DIDPTF).
32 CFR 62b.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Organization of the Joint Chiefs of Staff, the
Unified and Specified Commands, and the Defense Agencies (hereafter
referred to collectively as ''DoD Components''). The term ''Military
Services,'' as used herein, refers to the Army, Navy, Air Force, and
Marine Corps.
32 CFR 62b.3 Policy.
(a) Intoxicated driving is incompatible with the maintenance of high
standards of performance, military discipline, DoD personnel
reliability, and readiness of military units and supporting activities.
It is DoD policy to reduce significantly the incidence of intoxicated
driving within the Department of Defense through a coordinated program
of education, indentification, law enforcement, and treatment.
Specifically, the goal of the DoD Intoxicated Driving Prevention Program
is to reduce the number of fatalities and injuries suffered by DoD
personnel and the amount of property damage that result from intoxicated
driving. Persons who engage in intoxicated driving, regardless of the
geographic location of the incident, have demonstrated a serious
disregard for the safety of themselves and others. It is appropriate
for military commanders, in the exercise of their inherent authority, to
protect the mission of an installation and the safety of persons and
property therein to restrict driving privileges of persons who engage in
such actions.
(b) The Department of Defense shall participate in the national
effort to prevent intoxicated driving by maintaining appropriate
relationships with other governmental agencies and private organizations
and shall cooperate with responsible civil authorities consistent with
statutory and regulatory constraints in detecting, identifying,
apprehending, prosecuting, educating, and counseling intoxicated drivers
and in reporting cases as required by state laws and applicable Status
of Forces Agreements.
32 CFR 62b.4 Procedures.
(a) Education and training. (1) The Military Services shall provide
drug and alcohol education that focuses on intoxicated driving for each
of the following: law enforcement, public information, emergency room,
and safety personnel. Club managers, bartenders, and waitresses serving
alcoholic beverages and Class VI or package sales personnel shall
receive annual refresher training. In addition, leadership curricula at
all levels (PCO/PXO indoctrination, training for judge advocates and
military judges, and officer and noncommissioned officer schools) shall
include specific information and a review of current Military Service
policy on intoxicated driving.
(2) Other DoD Components shall provide similar instruction in
conjunction with the training and education requirements of Part 62a of
this title.
(3) DoD Components shall cooperate, to the extent feasible and
permitted by law and regulation, with community leaders and existing
grassroots organizations that are working to combat intoxicated driving,
in planning and implementing local education efforts.
(b) Suspension of driving privileges. Each DoD Component of its
supporting agency that regulates driving privileges shall establish
procedures for mandatory suspension of driving privileges on military
installations and in areas subject to military traffic supervision.
They shall establish procedures for acquiring arrest reports and other
official documentation of intoxicated driving incidents consistent with
applicable laws and regulations. Such procedures shall be sufficiently
flexible to meet local needs.
(1) Military personnel and their family members, retired members of
the Military Services, DoD civilian personnel, and others with
installation driving privileges may have those driving privileges
suspended, regardless of the geographic location of an intoxicated
driving incident.
(i) Suspension is authorized for non-DoD civilians only with respect
to incidents occurring on the military installation or in areas subject
to military traffic supervision.
(ii) With respect to DoD civilian personnel covered by a negotiated
agreement, a suspension under this paragraph may be reviewed only to the
extent required by the negotiated agreement applicable to the affected
employee. Such matters mandatorily are excluded from DoD Component
administrative grievance procedures. A grievance under such a procedure
will not delay imposition of a preliminary or 1-year suspension of
driving privileges.
(iii) A notice of suspension will not become effective until 24 hours
after the incident for which a suspension is imposed. However, this
provision does not preclude appropriate action to prevent an intoxicated
person from operating a motor vehicle, nor does it affect the validity
of an earlier suspension imposed on the same individual.
(iv) A hearing authorized under paragraph (b) (2), (3), or (5) of
this section, shall be conducted by the installation commander. The
power to conduct a hearing and make a decision may be delegated only to
an official whose primary duties are not in the field of law
enforcement. At a hearing under this paragraph, the individual shall
have the right to present evidence and witnesses at his or her own
expense. The individual may be represented by counsel at his or her own
expense. DoD civilian personnel may have a personal representative
present in accordance with applicable laws and regulations.
(2) Suspension based upon lawful apprehension. (i) Preliminary
suspension of driving privileges is mandatory based upon an arrest
report or other official documentation of the circumstances of an
apprehension for intoxicated driving.
(ii) The individual shall be notified in writing of the preliminary
suspension. The notice shall include the arrest report or other
documentation and shall inform the individual that a 1-year suspension
can be imposed upon conviction, imposition of nonjudicial punishment, or
action by civilian authorities leading to suspension or revocation of
the individual's driver's license. The notice shall inform the
individual that he or she has the right to submit a request within 5
working days to vacate the preliminary suspension and that failure to
request such a hearing will result in continuation of the preliminary
suspension.
(iii) If a hearing has not been requested within 5 working days, the
preliminary suspension shall be continued until there has been a
criminal, nonjudicial, or administrative disposition.
(iv) If the individual requests a hearing to vacate the preliminary
suspension, it shall be held within 10 working days of the request. If
the official conducting the hearing determines that the apprehension was
based upon probable cause, the preliminary suspension shall be
continued; if not, it shall be vacated. Such determinations are solely
for purposes of acting on the preliminary suspension and are without
prejudice to the rights of any party in a subsequent criminal or
administrative proceeding involving the same or a related incident.
(v) If the individual is acquitted, the charges are dismissed, or
there is an equivalent determination in a nonjudicial punishment
proceeding or civilian administrative action, the preliminary suspension
shall be vacated.
(vi) If there is a conviction, nonjudicial punishment, or civil
suspension or revocation of driving privileges, the suspension shall be
continued for 1 year from the date of the original preliminary
suspension. Such action shall be taken only on the basis of an official
report.
(3) Suspension for refusal to take a blood alcohol content (BAC) test
(i) Preliminary suspension of driving privileges is mandatory based upon
an official report that an individual refused to submit to a lawfully
requested BAC test.
(ii) The individual shall be notified of the preliminary suspension
in writing. The notice shall include the arrest report or other
documentation and shall inform the individual that a 1-year suspension
can be imposed after a hearing under paragraph (b)(3)(iv) of this
section. The notice also shall inform the individual that he or she has
the right within 5 working days to submit a request for a hearing to
validate the preliminary suspension and that the suspension will be for
1 year if a hearing is not requested.
(iii) If a hearing is not requested within 5 working days, the
suspension shall be for 1 year.
(iv) If the individual requests a hearing to vacate the preliminary
suspension, it shall be held within 10 working days of the request. The
hearing shall consider the arrest report or other official
documentation, information presented by the individual, and such other
information as the hearing officer may deem appropriate. The official
conducting the hearing shall consider the following issues: (A) Did the
official have reasonable grounds to believe that the person had been
operating or was in actual physical control of, a motor vehicle while
intoxicated? (B) Was the person lawfully cited or apprehended for an
intoxicated driving offense? (C) Was the individual lawfully requested
to submit to a BAC test? (D) Did the person refuse to submit to or fail
to complete a BAC test required by the law of the jurisdiction in which
the test was requested? If, in view of these issues, the test was
lawfully requested, the suspension shall be for 1 year, irrespective of
the ultimate disposition of the underlying intoxicated driving offense.
If not, the preliminary suspension shall be vacated. Such
determinations are solely for purposes of acting on the preliminary
suspension and are without prejudice to the rights of any party in a
subsequent criminal or administrative proceeding involving the same or a
related incident.
(4) Suspension upon conviction, nonjudicial punishment, or civilian
administrative action. (i) Suspension of driving privileges for 1 year
is mandatory when there has been a conviction, nonjudicial punishment,
or civilian revocation or suspension of driving privileges for
intoxicated driving, regardless of any prior administrative
determination under 62b.4 (b)(2), (b)(3), or (b)(5).
(ii) Such action shall be taken only on the basis of an official
report.
(iii) The individual shall be notified in writing of the suspension
and shall be notified that an exception may be granted only under
paragraph (b)(6) of this section.
(iv) The suspension shall be issued by the installation commander.
This authority may be delegated only to an official whose primary
responsibilities are not in the field of law enforcement.
(5) Repeat offenders. (i) Preliminary increase in suspension of
driving privileges is mandatory based upon an arrest report or other
official documentation of an individual's driving in violation of a
suspension imposed under this part or under similar rules previously
issued by a DoD Component.
(A) The individual shall be notified in writing of the preliminary
increase in suspension. The notice shall include the arrest report or
other documentation of the violation as well as documentation of the
original suspension and shall inform the individual that his or her
original suspension can be increased by 2 years after a hearing under
paragraph (b)(5)(i)(C) of this section. The notice shall inform the
individual that he or she has the right within 5 working days to submit
a request for a hearing to vacate the preliminary increase in suspension
and that the original suspension will be increased by 2 years if such a
request is not submitted.
(B) If a hearing has not been requested within 5 working days, the
original suspension shall be increased by 2 years.
(C) If the individual requests a hearing to vacate the preliminary
suspension, it shall be held within 10 working days of the request. The
hearing shall consider the arrest report or other official
documentation, information presented by the individual, documentation of
the original suspension, and such other information as the hearing
officer may deem appropriate. If the official conducting the hearing
determines that the allegation of driving in violation of a suspension
is supported by a preponderance of the evidence, the original suspension
shall be increased by 2 years. If not, the preliminary increase in
suspension shall be vacated. Such determinations are without prejudice
to the rights of any party in a subsequent criminal or administrative
proceeding involving the same or a related incident.
(D) If in a subsequent judicial, nonjudicial, or administrative
proceeding, it is determined that the individual did not violate a
suspension, the preliminary increase in suspensions shall be vacated.
(ii) For each subsequent determination within a 5-year period that a
1-year suspension is authorized under paragraph (b) (2) through (4) of
this section, driving privileges shall be suspended for 2-years. Such
period shall be in addition to any suspension perviously imposed.
Military personnel shall be prohibited from obtaining or using a U.S.
Government Motor Vehicle Operator's Indentification Card, Standard Form
(SF) 46, for 6 months for each such incident. A determination whether
DoD civilian personnel should be prohibited from obtaining or using an
SE 46 shall be made under Federal Personnel Manual Chapter 930 and other
laws and regulations applicable to civilian personnel. Nothing in this
paragraph precludes an installation commander from imposing a
prohibition upon obtaining or using an SF 46 for a first offense or for
such other reasons as may be authorized under applicable laws and
regulations.
(6) Exceptions. (i) Exceptions to the mandatory suspension
provisions in this Part may be granted under regulations by the DoD
Component concerned on a case-by-case basis. Requests for exceptions
shall be in writing. Such exceptions may be granted only on the basis
of:
(A) Mission requirements;
(B) Unusual personal or family hardship; or
(C) In the case of a preliminary suspension following lawful
apprehension, delays exceeding 90 days in the formal disposition of the
allegations insofar as such delays are not attributable to the
individual.
(ii) With respect to a person who has no reasonably available
alternate means of transportation to officially assigned duties, a
limited exception shall be granted for the sole purpose of driving
directly to and from such duties. This does not authorize a person to
drive on a military installation if the person's driver's license is
under suspension or revocation by a state, federal, or host country
civil court or administrative agency. Maximum reliance shall be placed
on carpools, public transportation, and reasonably available parking
facilities adjacent to the installation before such a limited exception
is granted. Nothing in this provision precludes appropriate or other
administrative action on the basis of an intoxicated driving incident or
driving in violation of a previously imposed suspension.
(iii) Exceptions granted under this paragraph shall be reported in
writing to the next official in the chain of command.
(7) Overseas commanders with authority to issue driver's licenses
shall establish procedures for suspension of such licenses for
intoxicated driving. Such procedures, insofar as the commanders deem
practicable, shall be similar to the procedures for suspension of
installation driving privileges prescribed in paragraph (b) (1) through
(6) of this section.
(8) Persons whose installation driving privileges are suspended for 1
year or more under 62b.4(b) (2), (3), or (4), above, shall complete an
alcohol or drug safety action program or equivalent alcohol education
course (minimum of 8 hours) before their installation driving privileges
may be reinstated.
(c) Screening. Each DoD Component or its supporting agency shall
establish procedures for screening military personnel charged with
intoxicated driving offenses within 7 working days of issuance of notice
of the preliminary suspension to determine whether a member is dependent
on alcohol or other drugs. The results of this screening shall be made
available to the command having jurisdiction over the case before
adjudication. Information concerning personal alcohol and drug abuse
provided by a member in response to screening questions may not be used
against the member in a court-martial or on the issue of
characterization in an administrative separation proceeding. Nothing in
this provision precludes introduction of such evidence for other
administrative purposes or for impeachment or rebuttal purposes in any
proceeding in which evidence of alcohol or drug abuse (or lack thereof)
first has been introduced by the member, nor does it preclude
disciplinary or other action based on independently derived evidence.
DoD civilian personnel charged with intoxicated driving shall be advised
of the Civilian Employee Assistance Program or Installation Drug and
Alcohol Program and the availability of evaluation in accordance with
Federal Personnel Manual Supplement 792-2. Retired members of the
Military Services shall be advised of the availability of evaluation and
treatment programs.
(d) Notification of State Driver's License Agencies. Each DoD
Component or its supporting agency shall establish a systematic
procedure in accordance with Part 286a of this title to notify state
driver's license agencies of DoD personnel whose installation driving
privileges are suspended for 1 year or more following final adjudication
of the intoxicated driving offense or upon suspension for refusal to
submit to a lawful BAC test under paragraph (b) of this section. This
notification shall include the basis for the suspension and the BAC
level, if known. Exceptions shall be made only when such a suspension
was increased for an additional 2 years for driving on an installation
while installation driving privileges were suspended solely on the basis
of driving in violation of suspension (see paragraph (b)(5) of this
section). This notification shall be sent to the state in which the
driver's license was issued and the state in which the installation is
located. Sample letter format is provided in Appendix 1, and state
driver's license agencies are listed in Appendix 2. DoD Components
shall establish a system to exchange intoxicated driving and driving
privilege suspension data when DoD personnel transfer from one location
to another to ensure that the receiving installation continues any
remaining portion of the suspension. This information requirement is
exempt from formal approval and licensing.
(e) The Military Services shall include the intoxicated driving
prevention program as an inspection item of special interest for
Inspector General or administrative inspections.
(f) The Military Services shall direct installation commanders to
assess the availability of drug and alcohol in the vicinity of military
installations through their Armed Forces Disciplinary Control Boards or
Control Boards of other appropriate federal agencies. Whenever the
availability of alcohol or drugs, or both, at an establishment off-base
presents a threat to the discipline, health, and welfare of DoD
personnel, such establishments shall be dealt with as prescribed in the
''Armed Forces Disciplinary Control Board and Off-Installation Military
Enforcement Guidance'' (Army Regulation No. 190-24, Marine Corps Order
No. 162.2A, BUPERS Inst. 1620.4A, Air Force Regulation No. 125.11,
Commandant Instruction No. 1620.13).
(g) Cases Involving Death or Serious Injury. (1) To the extent
permitted by law and consistent with the Uniform Code of Military
Justice (UCMJ) and the ''Manual for Courts-Martial'' and in accordance
with trial counsel's judgement of appropriate tactical and ethical
concerns, consideration shall be given to presenting a victim's impact
statement (oral or written statement by victims or survivors) before
sentencing in cases involving intoxicated driving.
(2) Trial counsel are encouraged to make reasonable efforts to ensure
that the victim or the victim's family is provided information about the
progress and disposition of cases processed under the UCMJ.
(h) DoD Components with field installations shall establish an awards
and recognition program to recognize successful local installation
intoxicated driving prevention programs.
(i) Each DoD Component or its supporting agency is encouraged to use,
as guidance, ''Report on a National Study of Preliminary Breath Test
(PBT) and Illegal Per Se Laws'' and ''Interim Report to the Nation by
the Presidential Commission on Drunk Driving.''
32 CFR 62b.5 Responsibilities.
(a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA))
shall:
(1) Develop a coordinated approach to the reduction of intoxicated
driving, consistent with this part, recognizing that intoxicated driving
prevention programs shall be designed to meet local needs.
(2) Appoint the chair of the DIDPTF.
(3) Monitor Military Service and DoD Component regulations that
implement the DoD Intoxicated Driving Prevention Program.
(4) Act as focal point for the Department of Defense for interagency
and nongovernmental coordination of national intoxicated driving
prevention programs.
(5) Evaluate and report biennially to the Secretary of Defense on the
effectiveness and efficiency of the DoD Intoxicated Driving Prevention
Program.
(b) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) (ASD(MRA&L)) shall:
(1) Ensure the DoD Department Schools system and Section VI schools
include specific material in the curriculum (grades 7 through 12) on the
effects that alcohol and drugs have on the impairment of driving skills.
(2) Ensure that intoxicated driving, accident, mishap, and injury
data include:
(i) BAC of drivers in three categories -- .01-.04, .05-.09, and .10
and above.
(ii) Time of day and day of the week the mishap or injury occurred.
(iii) Type of vehicle (include MOPEDs with motorcycle data).
(iv) Death and injury data on DoD personnel killed or injured as a
result of intoxicated driving, include those who were not intoxicated
themselves but were involved in a mishap as a result of intoxicated
driving by another party.
(v) Government property damage cost.
(vi) Cost of treatment of injured DoD personnel.
(vii) Pertinent data on military personnel separated or retired as a
result of injury or other action taken because of:
(A) Intoxicated driving by the person being separated or retired; or
(B) Intoxicated driving by another person.
(viii) Other chemical substances causing intoxicated driving that
contributed to an accident.
(3) Provide an annual report to the Secretary of Defense that
assesses the impact of intoxicated driving on the Department of Defense.
The report shall include intoxicated driving arrest, apprehension, and
conviction data as well as the number of exceptions granted to the
mandatory suspension of driving privileges under paragraph (b)(6) of
this section.
(4) Establish procedures (when feasible) under which DoD personnel
convicted for driving while intoxicated will pay administrative
restitution to the government for property damage or medical expenses to
the extent permitted by applicable law.
(5) Amend appropriate DoD issuances to include the use of a
preliminary or prearrest breath test (PBT) to be used by law enforcement
personnel to indicate impairment when the arresting officer has reason
to believe the operator of a motor vehicle may be intoxicated. (See
''Report on a National Study of Preliminary Breath Test (PBT) and
Illegal Per Se Laws'').
(c) The Head of each DoD Component or its Supporting Agency shall
establish and operate intoxicated driving prevention programs prescribed
by this part.
32 CFR 62b.6 DoD intoxicated driving prevention task force.
(a) Organization and management. (1) The DIDPTF shall be chaired by
a representative of the Deputy Assistant Secretary of Defense (Health
Promotion), Office of the ASD(HA).
(2) The DIDPTF shall consist of representatives of the Military
Services' drug and alcohol programs and law enforcement communities and
a representative of the Deputy Assistant Secretary of Defense (Equal
Opportunity and Safety Policy), Office of the ASD(MRA&L).
(3) Meetings generally shall be held bimonthly; however, special
sessions may be required by the chair.
(b) Functions. The DIDPTF shall:
(1) Monitor Military Service and DoD Component policy as it applies
to the prevention of intoxicated driving.
(2) Review programs and policy developed by other federal and state
agencies and make recommendations of suitable adaptation within the
Department of Defense.
(3) Make recommendations to the ASD(HA) and the ASD(MRA&L) on matters
pertaining to intoxicated driving.
32 CFR 62b.7 Definitions.
(a) Blood Alcohol Content (BAC). The percentage, by weight, of
alcohol in a person's blood as determined by blood, urine, or breath
analysis. Percent of weight by volume of alcohol in the blood is based
on grams of alcohol per 100 milliliters of blood.
(b) Conviction. An official determination or finding as authorized
by state or federal law or regulation, including a final conviction by a
court or court-martial (whether based on a plea of guilty or a finding
of guilty and regardless of whether the penalty is rebated, deferred,
suspended, or probated), an unvacated forfeiture of bail or other
collateral deposited to secure a defendant's appearance in court, a plea
of nolo contendere accepted by a court, or a payment of a fine.
(c) DoD issuances. DoD Directives, Instructions, publications and
changes thereto.
(d) DoD personnel -- (1) Civilian personnel. Employees of the
Department of Defense whose salary or wages are paid from appropriated
or nonappropriated funds.
(2) Military personnel. All U.S. military personnel on active duty,
U.S. military reserve or National Guard personnel on active duty, and
Military Service academy cadets.
(e) Driving privileges. Operation of a privately owned motor vehicle
on an installation or in areas where traffic operations are under
military supervision.
(f) Intoxicated driving. Includes one or more of the following:
(1) Operating a motor vehicle under any intoxication caused by
alcohol or drugs in violation of Article 111 of the UCMJ (see paragraphs
190 and 191 of the ''Manual for Courts-Martial'' or a similar law of the
jurisdiction in which the vehicle is being operated.
(2) Operating a motor vehicle with a BAC of .10 or higher on a
military installation or in an area where traffic operations are under
military supervision.
(3) Operating a motor vehicle with a BAC of .10 or higher in
violation of the law of the jurisdiction in which the vehicle is being
operated.
(4) Operating a motor vehicle with a BAC of .05 but less than .10 in
violation of the law of the jurisdiction in which the vehicle is being
operated if the jurisdiction imposes a suspension or revocation solely
on the basis of the BAC level.
(g) Supporting agency. The agency that accepts the responsibility
and performs the actions necessary to accomplish any of the requirements
of this Part (for example, one of the Military Services supporting a
Defense Agency through installation vehicle registration, screening of
intoxicated drivers, or supervisor education).
32 CFR 62b.7 Pt. 62b, App. 1
32 CFR 62b.7 Appendix 1 to Part 62b -- Driver's License Information
(Sample Letter)
FROM:
-- -- --
TO: Department of Vehicle Registration Licenses
-- -- --
SUBJECT: Notification of Person Convicted of an Intoxicated Driving
Offense.
This letter is your notification that on
-------------- ,
(date)
--
(last name, first name, middle initial
--
and social security number of person)
a member of
--
(branch of Military Service or DoD Component)
--
(and unit)
--
(installation location)
was found guilty of (intoxicated driving or refusal to take a blood
alcohol content (BAC) test in a court-martial, non-judicial proceeding
under Article 15 of the UCMJ, or civil court). (If civil court, give
court name and case number.) (He or she ) holds a ------------ (state)
driver's license, number ------------ , issued ------------ , expiring
on ------------ . (He or she) was arrested
--
(date and base location)
by ------------ (state) (or military) police while driving vehicle
license number ------------ . A BAC test (was or was not) taken (with a
reading of ------------ ). Based on the above information, this
individual's installation driving privileges have been suspended for
---- (insert number of years). The individual's current address is:
-- -- --
32 CFR 62b.7 Pt. 62b, App. 2
32 CFR 62b.7 Appendix 2 to Part 62b -- State Driver's License Agencies
Data Processing Unit, Driver's Licensing Division, Department of
Public Safety, Montgomery, Alabama 36192, (205) 832-5100
MVR Desk, Motor Vehicles, Pouch N, Juneau, Alaska 99811, (907)
465-4361
Phoenix City Magistrates Court (No street number required), Phoenix,
Arizona 85001, (602) 262-4001
Driver's Control, P.O. Box 1272, Little Rock, Arkansas 72203, (501)
371-1631
Information Services, Department of Motor Vehicles, P.O. Box 11231,
Sacramento, California 95813
Motor Vehicle Division, Master File Section 44-489, 140 W. 6th
Avenue, Denver, Colorado 80204, (303) 866-3751
Assistant Division Chief, 60 State Street, Wethersfield, Connecticut
06109, (203) 566-3230
Senior Clerk, Revocation Section, P.O. Box 698, Dover, Delaware
19901, (302) 736-4427
Division of Drivers Licenses & Motor Vehicles, Department of Highway
Safety, Kirkman Building, Tallahassee, Florida 32301, (904) 488-2117
Drivers Support Division, Department of Public Safety, P.O. Box 1456,
Atlanta, Georgia 30371-2303, (404) 656-5704
Administrator, District Court, 1111 Alakea Street, Honolulu, Hawaii
96813, (808) 548-2467
Idaho Transportation Department, Driver Services, P.O. Box 34, Boise,
Idaho 83731, (208) 334-2534
Abstract Informational Unit, Motor Vehicle Services, 2701 S. Dirksen
Parkway, Springfield, Illinois 62703, (217) 782-2720
Bureau of Motor Vehicles, Paid Mail Division, State Office Building,
Room 416, Indianapolis, Indiana 46204, (317) 232-2894
Chief Teletype Operator, Lucas State Office Building, Des Moines,
Iowa 50319, (515) 281-5559
Chief, Driver Control Bureau, State Office Building, Topeka, Kansas
66626, (913) 296-3671
Division of Driver Licensing, Justice Cabinet, Room 220, State Office
Building, Frankfort, Kentucky 40601, (502) 564-6800
Department of Public Safety, Office of Motor Vehicles, P.O. Box
64886, Baton Rouge, Louisiana 70896
Driver Record Section, Motor Vehicle Division, Statehouse Station
29, Augusta, Maine 04333, (207) 289-2733
Director, Driver Records, 6601 Ritchie Highway, NE, Glen Burnie,
Maryland 21062, (301) 768-7225
Registry Motor Vehicles, 100 Nashua Street, Boston, Massachusetts
02114
Commercial Lookup Unit, Michigan Department of State, Bureau of
Driver & Vehicle Services, Lansing, Michigan 48918
Driver License Division, 108 Transportation Building, St. Paul,
Minnesota 55155, (612) 296-2023
Mississippi Highway Patrol, MVR Section, P.O. Box 958, Jackson,
Mississippi 39205, (601) 982-1212, Ext. 268
Division of Motor Vehicles & Driver Licensing, P.O. Box 629,
Jefferson City, Missouri 65105, (No telephone inquiries)
Office Manager, Driver Services, 303 North Roberts, Helena, Montana
59620, (406) 449-3000
Administrator, P.O. Box 94789, Lincoln, Nebraska 68509, (402)
471-3888
Driver Record Section, 555 Wright Way, Carson City, Nevada 89701,
(702) 885-5505
Department of Public Safety, Division of Motor Vehicles, Hazen Drive,
Concord, New Hampshire 03105, (603) 271-2486
Supervisor, Abstract Section, Dept. of Motor Vehicles, 137 E. State
Street, Trenton, New Jersey 08625, (609) 292-4558
Chief, Motor Transportation Department, Manuel Lujan Building, Santa
Fe, New Mexico 87503, (505) 827-2362
New York State Dept. of Motor Vehicles, Public Service Bureau,
Empire State Plaza, Albany, New York 12228, (518) 474-0705
Director, Driver License Section, Division of Motor Vehicles, 1100
New Bern Avenue, Raleigh, North Carolina 27697, (919) 733-9906
Driving Records, Drivers License Division, 600 E. Boulevard,
Bismarck, North Dakota 58505, (701) 224-2603
Bureau of Motor Vehicles, Attn.: MVOSPA, P.O. Box 16520, Columbus,
Ohio 43216
Oklahoma Department of Public Safety, Driver Improvement Division,
Box 11415, Oklahoma City, Oklahoma 73136, (405) 427-6541
Supervisor, Files and Correspondence DMV, 1905 Lana Avenue, NE,
Salem, Oregon 97314, (503) 371-2225
Division Manager, Citation Processing Division, Room 302, Bureau of
Traffic Safety Operations, Department of Transportation, Harrisburg,
Pennsylvania 17120
Department of Motor Vehicles, State Office Building, Providence,
Rhode Island 02903, (401) 277-2994
Motor Vehicle Administrator, P.O. Box 1498, Columbia, South Carolina
29216, (803) 758-8428
Driver Improvement Program, 118 W. Capitol, Pierre, South Dakota
57501-2080, (605) 773-4128
Financial Responsibility Section, P.O. Box 945, Nashville, Tennessee
37202, (615) 741-3954
Director, Motor Vehicle Division, 40th and Jackson Avenue, Austin,
Texas 78779, (512) 465-7611
Chief, Drivers License Bureau, 317 State Office Building, Salt Lake
City, Utah 84114, (801) 965-4411
Director of Law Administration, Department of Motor Vehicles, 120
State Street, Montpelier, Vermont 05603, (Mail inquiries only)
Division of Motor Vehicles, Attn: Driver's Licensing and Information
Department, 2300 W. Broad Street, Richmond, Virginia 23269, (804)
257-0410
Department of Licensing, Driver Services Division, Highway Licensing
Building, Olympia, Washington 98504, (206) 753-6976
Department of Motor Vehicles, 1800 Washington Street, East,
Charleston, West Virginia 25317, (304) 348-0238
Driver Record File, Department of Transportation, P.O. Box 7918,
Madison, Wisconsin 53707-7918, (608) 266-2360
Criminal Identification Division, Boyd Building, Cheyenne, Wyoming
82002
National Driver Register, Room 5117, NHTSA, 400 7th Street SW,
Washington, DC 20509
District of Columbia Department of Transportation, Bureau of Motor
Vehicles Services, 301 C Street NW, Washington, DC 20001
Mr. Patrick Wolfe, Deputy Director, Revenue and Taxation, Government
of Guam, Agana, Guam 96910
Mr. Jose A. Zayas-Berdecia, Director, Bureau of Motor Vehicles, P.O.
Box 41243, Santurce, Puerto Rico 00940
(Does not participate in the National Driver Register)
32 CFR 62b.7 PART 63 -- FORMER SPOUSE PAYMENTS FROM RETIRED PAY
Sec.
63.1 Purpose.
63.2 Applicability and scope.
63.3 Definitions.
63.4 Policy.
63.5 Responsibilities.
63.6 Procedures.
Authority: 10 U.S.C. 1408.
Source: 50 FR 2667, Jan. 18, 1985, unless otherwise noted.
32 CFR 63.1 Purpose.
Under 10 U.S.C. 1408, this part establishes policy and authorizes
direct payments to a former spouse of a member from retired pay in
response to court-ordered alimony, child support, or division of
property.
32 CFR 63.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the
Military Departments, the Coast Guard (under agreement with the
Department of Transportation), the Public Health Service (PHS) (under
agreement with the Department of Health and Human Services); and the
National Oceanic and Atmospheric Administration (NOAA) (under agreement
with the Department of Commerce). The term ''Uniformed Services,'' as
used herein, refers to the Army, Navy, Air Force, Marine Corps, Coast
Guard, commissioned corps of the PHS, and the commissioned corps of the
NOAA.
(b) This part covers members retired from the active and reserve
components of the Uniformed Services who are subject to court orders
awarding alimony, child support, or division of property.
32 CFR 63.3 Definitions.
(a) Alimony. Periodic payments for the support and maintenance of a
spouse or former spouse in accordance with State law under 42 U.S.C.
662(c). It includes, but is not limited to, spousal support, separate
maintenance, and maintenance. Alimony does not include any payment for
the division of property.
(b) Annuitant. A person receiving a monthly payment under a survivor
benefit plan related to retired pay.
(c) Child support. Periodic payments for the support and maintenance
of a child or children, subject to and in accordance with State law
under 42 U.S.C. 662(b). It includes, but is not limited to, payments to
provide for health care, education, recreation, and clothing or to meet
other specific needs of such a child or children.
(d) Court. Any court of competent jurisdiction of any State, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust
Territory of the Pacific Islands and any court of the United States as
defined in 28 U.S.C. 451 having competent jurisdiction; or any court of
competent jurisdiction of a foreign country with which the United States
has an agreement requiring the United States to honor any court order of
such country.
(e) Court Order. As defined under 10 U.S.C. 1408(a)(2), a final
decree of divorce, dissolution, annulment, or legal separation issued by
a court, or a court ordered, ratified, or approved property settlement
incident to such a decree. It includes a final decree modifying the
terms of a previously issued decree of divorce, dissolution, annulment,
or legal separation, or a court ordered, ratified, or approved property
settlement incident to such previously issued decree. The court order
must provide for the payment to a member's former spouse of alimony,
child support, or a division of property. In the case of a division of
property, the court order must specify that the payment is to be made
from the member's disposable retired pay.
(f) Creditable service. Service counted towards the establishment of
any entitlement for retired pay. See paragraphs 10102 through 10108 of
DoD 1340.12-M, 42 U.S.C. 212 for the PHS, and 33 U.S.C. 864 and 10
U.S.C. 6323 for NOAA.
(g) Designated agent. A representative of a Uniformed Service who
will receive and process court orders under this part.
(h) Division of property. Any transfer of property or its value by
an individual to his or her former spouse in compliance with any
community property settlement, equitable distribution of property, or
other distribution of property between spouses or former spouses.
(i) Entitlement. The legal right of a member to receive retired pay.
(j) Final decree. As defined under 10 U.S.C. 1408(a)(3), a decree
from which no appeal may be taken or from which no appeal has been taken
within the time allowed for taking such appeals under the laws
applicable to such appeals or a decree from which timely appeal has been
taken and such appeal has been finally decided under the laws applicable
to such appeals.
(k) Former spouse. The former husband or former wife, or the husband
or wife, of a member.
(l) Garnishment. The legal procedure through which payment is made
from an individual's pay that is due or payable to another party in
order to satisfy a legal obligation to provide child support, to make
alimony payments, or both, under 5 CFR Part 581 and 42 U.S.C. 659 or to
enforce a division of property other than a division of retired pay as
property under 10 U.S.C. 1408(d)(5).
(m) Member. A person originally appointed or enlisted in, or
conscripted into, a Uniformed Service who has retired from the regular
or reserve component of the Uniformed Service concerned.
(n) Renounced pay. Retired pay to which a member has an entitlement,
but for which receipt of payment has been waived by the member.
(o) Retired pay. The gross entitlement due a member based on
conditions of the retirement law, pay grade, years of service for basic
pay, years of service for percentage multiplier, if applicable, and date
of retirement (transfer to the Fleet Reserve or Fleet Marine Corps
Reserve); also known as retainer pay.
(50 FR 2667, Jan. 18, 1985, as amended at 52 FR 25215, July 6, 1987)
32 CFR 63.4 Policy.
It is the policy of the Uniformed Services to honor a former spouse's
request for direct payment from a given member's retired pay in
enforcement of a court order that provides for a alimony, child support,
or division of property, when the terms, conditions, and requirements in
this part are satisfied.
32 CFR 63.5 Responsibilities.
(a) The Assistant Secretary of Defense (Comptroller) shall establish
policy and procedures, provide guidance, coordinate changes with the
Uniformed Services, and monitor the implementation of this part within
the Department of Defense.
(b) The Secretaries of the Military Departments and Heads of the
other Uniformed Services shall implement this part.
32 CFR 63.6 Procedures.
(a) Eligibility of former spouse. (1) A former spouse of a member is
eligible to receive direct payment from the retired pay of that member
only pursuant to a court order that satisfies the requirements and
conditions specified in this part. In the case of a division of
property, the court order must specifically provide that payment is to
be made from disposable retired pay.
(2) For establishing eligibility for direct payment under a court
order that provides for a division of retired pay as property, a former
spouse must have been married to the member for 10 years or more, during
which the member performed 10 years or more of creditable service.
There is no 10-year marriage requirement for payment of child support,
alimony, or both.
(b) Application by former spouse. (1) A former spouse shall deliver
to the designated agent of the member's Uniformed Service a signed DD
Form 2293, Request for Former Spouse Payments from Retired Pay, or a
signed statement that includes:
(i) Notice to make direct payment to the former spouse from the
member's retired pay.
(ii) A copy of the court order and other accompanying documents
certified by an official of the issuing court that provides for payment
of child support, alimony, or division of property.
(iii) A statement that the court order has not been amended,
superseded, or set aside.
(iv) Sufficient identifying information about the member to enable
processing of the application. The identification should give the
member's full name, social security number, and Uniformed Service.
(v) The full name, address, and social security number of the former
spouse.
(vi) Before payment, the former spouse shall agree personally that
any future overpayments are recoverable and subject to involuntary
collection from the former spouse or his or her estate.
(vii) As a condition precedent to payment, the former spouse shall
agree personally to notify the designated agent promptly if the
operative court order upon which payment is based is vacated, modified,
or set aside. This shall include notice of the former spouse's
remarriage if all or a part of the payment is for alimony or notice of a
change in eligibility for child support payments under circumstances of
the death, emancipation, adoption, or attainment of majority of a child
whose support is provided through direct payment to a former spouse from
retired pay.
(2) If the court order is for a division of retired pay as property
and it does not state that the former spouse satisfied the eligibility
criteria found in paragraph (a)(2) of this section, the former spouse
shall furnish sufficient evidence for the designated agent to verify
that the requirement was met.
(3) The notification of the designated agent shall be accomplished by
certified or registered mail, return receipt requested, or by personal
service. Effective service is not accomplished until a complete
application providing all information required by this part is received
in the office of the designated agent, who shall note the date and time
of receipt on the notification document.
(4) Not later than 90 days after effective service, the designated
agent shall respond to the former spouse as follows: (i) If the court
order will be honored, the former spouse shall be informed of the date
that payments tentatively begin; the amount of each payment; the
amount of gross retired pay, total deductions, and disposable retired
pay (except in cases where full payment of a court-ordered fixed amount
will be made); and other relevant information if applicable: or (ii)
If the court order will not be honored, the designated agent shall
explain in writing to the former spouse why the court order was not
honored.
(5) The designated agent for each Uniformed Service is:
(i) Army: Commander, Army Finance and Accounting Center, Attn:
FINCL-G, Indianapolis, IN 46249-0160, (317) 542-2155.
(ii) Navy: Director, Navy Family Allowance Activity, Anthony J.
Celebrezze Federal Building, Cleveland, OH 44199-2087, (216) 522-5301.
(iii) Air Force: Commander, Air Force Accounting and Finance Center,
ATTN: JAL, Denver, CO 80279-5000, (303) 370-7524.
(iv) Marine Corps: Commanding Officer, Marine Corps Finance Center
(Code AA), Kansas City, MO 64197-0001, (816) 926-7103.
(v) U.S. Coast Guard, Commanding Officer (L), Pay and Personnel
Center, 444 Quincy Street, Topeka, Kansas 66683-3591; (913) 295-2516.
(vi) Office of General Counsel, Department of Health and Human
Services, Room 5362, 330 Independence Avenue SW., Washington, DC 20201,
(202) 475-0153.
(vii) U.S. Coast Guard, Commanding Officer (L), Pay and Personnel
Center, 444 Quincy Street, Topeka, Kansas 66683-3591; (913) 295-2516.
(6) U.S. Attorneys are not designated agents authorized to receive
court orders or garnishments under this part.
(c) Review of Court Orders. (1) The court order must be regular on
its face, meaning that it is issued by a court of competent jurisdiction
in accordance with the laws of the jurisdiction.
(2) The court order must be legal in form and must include nothing on
its face that provides reasonable notice that it is issued without
authority of law. It is required that the court order be authenticated
or certified within 90 days immediately preceding its service on the
designated agent.
(3) The court order must be a final decree.
(4) If the court order was issued while the member was on active duty
and the member was not represented in court, the court order or other
court documents must certify that the rights of the member under the
''Soldiers' and Sailors' Civil Relief Act of 1940'' (50 U.S.C. Appendix
501-591) were complied with.
(5) Sufficient information must be contained in the court order to
identify the member.
(6) For court orders that provide for the division of retired pay as
property, the following conditions apply:
(i) The court must have jurisdiction over the member by reason of (A)
the member's residence, other than because of military assignment in the
territorial jurisdiction of the court; (B) the member's domicle in the
territorial jurisdiction of the court; or (C) the member's consent to
the jurisdiction of the court.
(ii) The treatment of retired pay as property solely of the member or
as property of the member and the former spouse of that member must be
in accordance with the law of the jurisdiction of such court.
(iii) The court order or other accompanying documents served with the
court order must show the former spouse was married to the member 10
years or more, during which the member performed at least 10 years of
creditable service.
(7) Court orders awarding a division of retired pay as property that
were issued before June 26, 1981, shall be honored if they otherwise
satisfy the requirements and conditions specified in this part. A
modification on or after June 26, 1981, of a court order that originally
awarded a division of retired pay as property before June 26, 1981, may
be honored for subsequent court-ordered changes made for clarification,
such as the interpretation of a computation formula in the original
court order. For court orders issued before June 26, 1981, subsequent
amendments after that date to provide for a division of retired pay as
property are unenforceable under this part. If the court order awarding
a division of retired pay as property is issued on or after June 26,
1981, subsequent modifications of that court order shall be honored if
they otherwise satisfy the requirements and conditions specified in this
part.
(8) In the case of a division of property, the court order must
provide specifically for payment of a fixed amount expressed in U.S.
dollars or payment as a percentage or fraction of disposable retired
pay. Court orders specifying a percentage or fraction of retired pay
shall be construed as a percentage or fraction of disposable retired
pay. A court order that provides for a division of retired pay by means
of a formula wherein the elements of the formula are not specifically
set forth or readily apparent on the face of the court order will not be
honored unless clarified by the court.
(d) Garnishment Orders. (1) If a court order provides for the
division of property other than retired pay in addition to an amount of
disposable retired pay to be paid to the member's former spouse, the
former spouse may garnish that member's retired pay in order to enforce
the division of property. The limitations of 15 U.S.C. 1673(a) and the
limitations of 63.6(e) of this part apply in determining the amount
payable to a former spouse.
(2) The designated agents authorized to receive service of process of
garnishment orders under this part shall be those listed in 63.6(b)(5)
of this part.
(3) Garnishment orders under this part for enforcement of a division
of property other than retired pay shall be processed in accordance with
5 CFR Part 581 to the extent that the procedures are consistent with
this part.
(e) Limitations. (1) Upon proper service, a member's retired pay may
be paid directly to a former spouse in the amount necessary to comply
with the court order, provided the total amount paid does not exceed:
(i) 50 percent of the disposable retired pay for all court orders and
garnishment actions paid under this part.
(ii) 65 percent of the disposable retired pay for all court orders
and garnishments paid under this part and garnishments under 42 U.S.C.
659.
(2) Disposable retired pay is the gross pay entitlement, including
renounced pay, less authorized deductions. Disposable retired pay does
not include annuitant payments under 10 U.S.C. Chapter 73. For court
orders issued on or before November 14, 1986 (or amendments thereto),
disposable retired does not include retired pay of a member retired for
disability under 10 U.S.C. Chapter 61. The authorized deductions are:
(i) Amounts owed to the United States.
(ii) Fines and forfeitures ordered by a court-martial.
(iii) Amounts waived in order to receive compensation under title 5
or 38 of the U.S. Code.
(iv) Federal employment taxes and income taxes withheld to the extent
that the amount deducted is consistent with the member's tax liability,
including amounts for supplemental withholding under 26 U.S.C. 3402(i),
when the member presents evidence to the satisfaction of the designated
agent that supports such withholding. State employment taxes and income
taxes when the member makes a voluntary request for such withholding
from retired pay and the Uniformed Services have entered into an
agreement with the State concerned for withholding from retired pay.
(v) Premiums paid as a result of a election under 10 U.S.C. Chapter
73 to provide an annuity to a spouse or former spouse to whom payment of
a portion of such member's retired pay is being made pursuant to a court
order under this part.
(vi) The amount of retired pay of the member under 10 U.S.C. Chapter
61 computed using the percentage of the member's disability on the date,
when the member was retired (or the date on which the member's name was
placed on the temporary disability retirement list), for court orders
issued after November 14, 1986.
(vii) Other amounts required by law to be deducted.
(f) Notification of Member. (1) As soon as possible, but not later
than 30 calendar days after effective service of a court order or
garnishment action under this part, the designated agent shall send
written notice to the affected member at his or her last known address.
(2) This notice shall include:
(i) A copy of the court order and accompanying documentation.
(ii) An explanation of the limitations placed on the direct payment
to a former spouse from a member's retired pay.
(iii) A request that the member submit notification to the designated
agent if the court order has been amended, superseded, or set aside.
The member is obligated to provide an authenticated or certified copy of
the operative court documents when there are conflicting court orders.
(iv) The amount or percentage that will be deducted if the member
fails to respond to the notification as prescribed by this part.
(v) The effective date that direct payments to the former spouse
tentatively will begin.
(vi) Notice that the member's failure to respond within 30 days from
the date that the notice is mailed may result in the payment of retired
pay as provided in the notification.
(vii) That if the member submits information in response to this
notification, the member thereby consents to the disclosure of such
information to the former spouse or the former spouse's agent.
(3) If the member responds to the notification, the designated agent
shall consider the response and will not honor the court order whenever
it is shown that the court order is defective, or the court order is
modified, superseded, or set aside.
(g) Designated agent liability. (1) The United States and any
officer or employee of the United States will not be liable with respect
to any payment made from retired pay to any member or former spouse
pursuant to a court order that is regular on its face if such payment is
made in accordance with this Part.
(2) An officer or employee of the United States, who under this part
has the duty to respond to interrogatories, will not be subject under
any law to any disciplinary action or civil or criminal liability or
penalty for, or because of, any disclosure of information made by him or
her in carrying out any of the duties that directly or indirectly
pertain to answering such interrogatories.
(3) If a court order on its face appears to conform to the laws of
the jurisdiction from which it was issued, the designated agent will not
be required to ascertain whether the court has obtained personal
jurisdiction over the member.
(4) Whenever a designated agent is effectively served with
interrogatories concerning implementation of this part, the designated
agent shall respond to such interrogatories within 30 calendar days of
receipt or within such longer period as may be prescribed by applicable
State law.
(h) Payments. (1) Subject to a member's eligibility for retired pay,
effective service of a court order, and the limitations and requirements
of this part, the Uniformed Service concerned shall begin payments to
the former spouse not later than 90 days after the date of effective
service.
(2) Payments shall conform with the normal pay and disbursement cycle
for retired pay. Payments may be expressed as fixed in amount or as a
percentage or fraction of disposable retired pay. With regard to
payments based on a percentage or fraction of disposable retired pay,
the amount will change in direct proportion and at the effective date of
future cost-of-living adjustments that are authorized, unless the court
order directs otherwise.
(3) Payments terminate on the date of the death of the member, death
of the former spouse, or as stated in the applicable court order,
whichever occurs first. Payments shall be terminated or shall be
reduced upon the occurrence of a condition that requires termination or
reduction under applicable State law.
(4) When several court orders are served with regard to a member's
retired pay, payment shall be satisfied on a first-come, first-served
basis within the amount limitations prescribed in paragraph (e) of this
section.
(5) If conflicting court orders are served on the designated agent
that direct that different amounts be paid during a month to the same
former spouse from a given member's retired pay, the designated agent
shall authorize payment on the court order directing payment of the
least amount. The difference in amounts on conflicting court orders
shall be retained by the designated agent pending resolution by the
court that has jurisdiction or by agreement of the parties. The amount
retained shall be paid as provided in a subsequent court order or
agreement. The total of all payments plus all moneys retained under
this paragraph shall be within the limitation prescribed in paragraph
(e) of this section.
(6) The designated agent shall comply with a stay of execution issued
by a court of competent jurisdiction and shall suspend payment of
disputed amounts pending resolution of the issue.
(7) When service is made and the identified member is found not to be
currently entitled to payments the designated agent shall advise the
former spouse that no payments are due from or payable by the Uniformed
Service to the named individual. If the member is on active duty when
service is accomplished, the designated agent shall retain the
application until the member's retirement. In such case, payments to
the former spouse, if otherwise proper, shall begin not later than 90
days from the date the member first becomes entitled to receive retired
pay. If the member becomes entitled to receive retired pay more than 90
days after first being notified under paragraph (f) of this section, the
notification procedures prescribed by that section shall be repeated by
the designated agent.
(8) In moneys are only temporarily exhausted or otherwise
unavailable, the former spouse shall be fully advised of the reason or
reasons why and for how long the moneys will be unavailable. Service
shall be retained by the designated agent and payments to the former
spouse, if otherwise proper, shall begin not later than 90 days from the
date the member becomes entitled to receive retired pay. If the member
becomes entitled to receive retired pay more than 90 days after first
being notified under paragraph (f) of this section, the notification
procedures prescribed by that section shall be repeated by the
designated agent.
(9) The order of precedence for disbursement of retired pay when the
gross amount is not sufficient to permit all authorized deductions and
collections shall follow Volume I, Part 3, Section 7040, ''Order of
Payment,'' in the Treasury Fiscal Requirements Manual for Guidance of
Departments and Agencies. Court-ordered payments to a former spouse
from retired pay shall be enforced over voluntary deductions and
allotments.
(10) Payments made shall be prospective in terms of the amount stated
in the court order. Arrearages will not be considered in determining
the amount payable from retired pay.
(11) No right, title, or interest that can be sold, assigned,
transferred, or otherwise disposed of, including by inheritance, is
created under this part.
(12) At the request of the designated agent, the former spouse may be
required to provide a certification of eligibility that attests in
writing to the former spouse's continued eligibility and that includes a
notice of change in status or circumstances that affect eligibility.
After notice to the former spouse, payments to the former spouse may be
suspended, or terminated, when the former spouse fails to comply, or
refuses to comply, with the certification requirement.
(i) Reconsideration. A former spouse or member may request that the
designated agent reconsider the designated agent's determination in
response to service of an application for payments under this part or
the member's answer to the designated agent with respect to notice of
such service. For reconsideration, the request must express the issues
the former spouse or the member believes were incorrectly resolved by
the designated agent. The designated agent shall respond to the request
for reconsideration, giving an explanation of the determination reached.
(Approved by the Office of Management and Budget under control
numbers 0704-0160 and 0704-0182)
(50 FR 2667, Jan. 18, 1985, as amended at 52 FR 25215, July 6, 1987)
32 CFR 63.6 PART 64 -- MANAGEMENT AND MOBILIZATION OF REGULAR AND
RESERVE RETIRED MILITARY MEMBERS
Sec.
64.1 Purpose.
64.2 Applicability and scope.
64.3 Definitions.
64.4 Policy.
64.5 Responsibilities.
64.6 Procedures.
Appendix A to Part 64 -- Letter Format to Cognizant Service Personnel
Center Requesting Employee be Screened from Retiree-Recall Program
Appendix B to Part 64 -- List of Reserve Personnel Centers to which
Retiree-Recall Screening Determination Shall be Forwarded
Authority: 10 U.S.C. 672(a), 675, 688, and 973.
Source: 55 FR 9319, Mar. 13, 1990, unless otherwise noted.
32 CFR 64.1 Purpose.
This part implements sections 672(a), 675, 688, and 973 of title 10,
United States Code, by prescribing uniform policy and procedures
governing the peacetime management of retired military personnel, both
Regular and Reserve, in preparation for their use during a mobilization.
32 CFR 64.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD); the
Military Departments (including their National Guard and Reserve
components); the Chairman, Joint Chiefs of Staff (Joint Staff); the
Coast Guard and its Reserve component (by agreement with the Department
of Transportation (DoT)); and the Defense Agencies (hereafter referred
to collectively as ''DoD Components''). The term ''Military Services,''
as used herein, refers to the Army, Navy, Air Force, Marine Corps, and
Coast Guard (by agreement with the DoT).
(b) By agreement with non-DoD organizations that have DoD-related
missions, includes organizations with Defense-related missions, such as
the Federal Emergency Management Agency (FEMA), the Selective Service
System (SSS), and the organizations with North Atlantic Treaty
Organization (NATO)-related missions.
32 CFR 64.3 Definitions.
(a) Key employee. Any Reservist, or any military retiree (Regular or
Reserve) identified by his or her employer, private or public, as
filling a key position.
(b) Key position. A civilian position, public or private (designated
by the employers and approved by the Secretary concerned), that cannot
be vacated during war or national emergency.
(c) Military retiree categories -- (1) Category I. Nondisability
military retirees under age 60 who have been retired less than 5 years.
(2) Category II. Nondisability military retirees under age 60 who
have retired 5 years or more.
(3) Category III. Military retirees, including those retired for
disability, other than categories I or II retirees (includes warrant
officers and health-care professionals who retire from active duty after
age 60).
(d) Military retirees or retired military members. (1) Regular and
Reserve officers and enlisted members who retire from the Military
Services under 10 U.S.C. chapters 61, 63, 65, 67, 367, 571, 573, or 867
and 14 U.S.C. chapters 11 and 21.
(2) Reserve officers and enlisted members eligible for retirement
under one of the provisions of law in definition (d)(1) who have not
reached age 60 and who have not elected discharge or are not members of
the Ready Reserve or Standby Reserve (including members of the Inactive
Standby Reserve).
(3) Members of the Fleet Reserve and Fleet Marine Corps Reserve under
10 U.S.C. 6330.
32 CFR 64.4 Policy.
It is DoD policy that military retirees shall be ordered to active
duty (as needed) to fill personnel shortfalls due to mobilization or
other emergencies, as described in 10 U.S.C. 672 and 688. DoD
Components and the Coast Guard shall plan to use as many retirees, as
necessary, to meet national security needs. Military retirees may be
used as follows:
(a) To fill shortages in, or to augment, deployed or deploying units.
(b) To fill shortages in, or to augment, supporting units and
activities in the Continental United States (CONUS), Alaska, and Hawaii.
(c) To release other military members for deployment overseas.
(d) Subject to the limitations of 10 U.S.C. 973, to fill Federal
civilian workforce shortages within the Department of Defense, the Coast
Guard, or other Government entities.
(e) To meet national security needs in organizations outside the
Department of Defense with Defense-related missions.
32 CFR 64.5 Responsibilities.
(a) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA))
and the Assistant Secretary of Defense (Force Management and Personnel)
(ASD(FM&P)) shall provide overall policy guidance for the management and
mobilization of DoD military retirees. In addition, the Assistant
Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall:
(1) Validate positions identified by Defense and non-Defense Agencies
as suitable for fill by military retirees.
(2) Establish priorities for fill once all requirements are
identified.
(3) Provide redistribution guidance.
(b) The Secretaries of the Military Departments and the Commandant of
the Coast Guard shall ensure that plans for the management and
mobilization of military retirees are consistent with this part.
(c) The Directors of the Defense Agencies, the Director of the
Federal Emergency Management Agency (FEMA) and the Director of the
Selective Service System (SSS) and other Federal Organizations, as
appropriate, shall, by agreement, assist in identifying military and
Federal civilian wartime positions that are suitable for fill by
military retirees, and provide a list of requirements to the Office of
the Assistant Secretary of Defense (Force Management and Personnel)
(OASD(FM&P)) for validation and prioritization before fill by the
Military Services. The Services retain the right to disapprove the
request if no military retiree is available. At least annually, the
requesting Agency shall verify to the OASD(FM&P) the accuracy of their
validated requirements and identify any new requirements.
(d) The Secretaries of the Military Departments, or designees, shall:
(1) Prepare plans and establish procedures for mobilization of
military retirees in conformance with this part.
(2) Determine the extent of military retiree mobilization
requirements based on existing inventories and inventory projections for
mobilization of qualified Reservists in an active status in the Ready
Reserve, the Inactive National Guard, or the Standby Reserve.
(3) Develop procedures for identifying categories I and II retirees
and conduct screening of retirees using this part for guidance.
(4) Maintain personnel records and other necessary records for
military retirees, including date of birth, date of retirement, current
address, and documentation of military qualifications. Maintain records
for categories I and II military retirees, including retirees who are
key employees and their availability for mobilization, civilian
employment, and physical condition. Data shall be maintained on retired
Reserve members in accordance with 32 CFR part 114.
(5) Advise military retirees of their duty to provide the Military
Services with accurate mailing addresses and any changes in civilian
employment, military qualifications, availability for service, and
physical condition.
(6) Preassign retired members, when determined appropriate and as
necessary.
(7) Determine refresher training requirements in accordance with the
criteria established in 64.6(a)(8).
32 CFR 64.6 Procedures.
(a) Premobilization -- (1) Management of military retirees. Military
retiree management systems should provide for rapid identification of
retiree location and military skills to expedite reporting of retirees
to a wide range of assignments and geographic locations in mobilization
or crisis. As part of the criteria for assignment of individuals to
specific mobilization billets, the Military Services should consider the
criticality of the mobilization billet, the skills of the individual,
and his or her geographic proximity to the place of assignment. To the
extent possible, military retirees should be given the opportunity to
volunteer for specific assignments. The Military Departments shall
develop plans and procedures to identify military retirees excess to
their needs. The Military Departments, other DoD Components, FEMA, SSS,
and other Federal Agencies, as appropriate, shall provide a list of
requirements to the Department of Defense. The Department of Defense
shall establish priorities for fill once all requirements and excess
personnel are identified and provide redistribution guidance.
(2) Requirement validation. The OASD(FM&P) shall review and validate
each mobilization requirement for a military retiree. The criteria
considered shall be the structure of the organization, the expanded
workload requirements in a mobilization environment, current manpower
authorizations, and existing manpower infrastructures supporting the
organizations.
(3) Assignment priority. The priority for use of military retirees
shall be:
(i) Use by their own Service.
(ii) Use by another Service or a Defense Agency.
(iii) Use by a civilian Federal Department or Agency.
(iv) Any other approved use.
(4) Preassignment of categories I and II military retirees. When
determined appropriate by the Military Service concerned, military
retirees who physically are qualified maximally should be preassigned in
peacetime, either voluntarily or involuntarily, to installations or to
mobilization positions that must be filled within 30 days after
mobilization. Key employees and category III retirees shall not be
preassigned involuntarily. Severe hostilities may prevent the
transmittal of mobilization orders to military retirees. All military
retirees preassigned to mobilization positions or installations, either
voluntarily or involuntarily, shall be issued preassignment or
contingent preassignment orders.
(5) Category III military retirees. The nature and extent of the
mobilization of category III retirees shall be determined by each
Military Service, based on the retiree's military skill and, if
applicable, the nature and degree of the retiree's disability. Category
III retirees generally should be assigned to civilian jobs, unless they
have critical skills or volunteer for specific military jobs. Age or
disability alone may not be the sole basis for excluding a retiree from
active Military Service during mobilization.
(6) Military retirees living overseas. Military retirees who live
overseas maximally shall be preassigned in peacetime, as determined by
the Military Service concerned, to meet mobilization augmentation
requirements at overseas, U.S., or allied military installations or
activities that are near their places of residence.
(7) Military retiree information. The development and maintenance of
current information on the mobilization availability of military
retirees shall be the responsibility of the Military Services. Such
information shall include, but not be limited to, date of retirement,
date of birth, current address, and military qualifications.
Additionally, the Military Services shall maintain information on the
availability for mobilization and the physical condition of categories I
and II military retirees. Indication of physical condition may be from
certification by the individual military retiree.
(8) Refresher training. Each Military Service shall determine the
necessity for, and the frequency of, refresher training of military
retirees, based on the needs of the Military Service and the specific
military skill of the military retiree. Emphasis should be on voluntary
refresher training. Civilian-acquired skills may eliminate the need for
refresher training.
(9) Screening of military retirees -- (i) Each Military Service shall
develop procedures for identifying categories I and II retirees, and
shall conduct screening of retirees using this part and 32 CFR part 44
as guidance in formulating screening criteria.
(ii) All military retirees shall be advised to inform their employers
concerning their liability for recall to active duty in a mobilization
or national emergency, and, when applicable, the procedures for
designating their position as a key position.
(iii) Federal employers annually shall review their employment rolls
to determine if they employ any military retirees who are filling key
positions, as defined in 64.3.
(iv) Non-Federal employers also are encouraged to use the key
position guidelines for making their own key position designations and,
when applicable, for recommending certain military retirees for key
employees status.
(v) Key position designation guidelines. In determining whether or
not a position should be designated as a key position, employers should
consider the following criteria:
(A) Can the position be filled in a reasonable time after
mobilization?
(B) Does the position require technical or managerial skills that are
possessed uniquely by the incumbent employee?
(C) Is the position associated directly with Defense mobilization?
(D) Does the position include a mobilization or relocation assignment
in an Agency having emergency functions, as designated by E.O. 12656?
(E) Is the position directly associated with industrial or manpower
mobilization, as designated in E.O. 10480?
(F) Are there other factors related to national defense, health, or
safety that would make the incumbent of the position unavailable for
mobilization?
(vi) Employers who determine that a military retiree is filling a key
position and should not be recalled to active duty in an emergency
should report that determination to the cognizant military personnel
center, using the letter format shown in Appendix A to this part. The
list of Reserve personnel centers to which retiree-recall
screening-determination recommendations shall be forwarded is at
Appendix B to this part.
(b) Mobilization -- (1) General. The Military Services shall
establish plans and procedures to use those military retirees who meet
specific skill and experience requirements to fill mobilization billets,
when there is not enough active or qualified Reserve manpower available.
(2) Involuntary order to active duty -- (i) Twenty-year active
military service retirees. The Secretary of a Military Department may
order any retired Regular member, retired Reserve member who has
completed at least 20 years of Active Service, or a member of the Fleet
Reserve or Fleet Marine Corps Reserve to active duty at any time to
perform duties deemed necessary in the interests of national defense in
accordance with 10 U.S.C. 675 and 688. Retired Regular members of the
Coast Guard may be ordered to active duty by the Secretary concerned
only in time of war or national emergency in accordance with 14 U.S.C.
331 and 359.
(ii) Reserve. The Secretary of a Military Department may order any
other retired member of a Reserve component of a Military Service to
active duty for the duration of a war or emergency and for 6 months
thereafter on the basis of required skills, provided:
(A) War or national emergency has been declared by Congress.
(B) The Secretary of the Military Department concerned, with the
approval of the Secretary of Defense, determines there are not enough
qualified Reserves in an Active status or in the Inactive National
Guard, under 10 U.S.C. 672(a).
(3) Graduated Mobilization Response. The Military Services shall
develop plans and procedures for ordering military retirees to active
duty in accordance with a schedule that includes pre-, partial, and full
mobilization requirements.
(c) Peacetime -- (1) General. The Military Departments shall
establish procedures to order military retirees to active duty during
peacetime.
(2) Voluntary order to active duty -- (i) Twenty-year active military
service retirees. The Secretary of a Military Department may order
retired Regular members, retired Reserve members who have completed at
least 20 years of active Military Service, or members of the Fleet
Reserve or Fleet Marine Corps Reserve to active duty with their consent
at any time in accordance with 10 U.S.C. 688.
(ii) Other Reserve retirees. The Secretary of a Military Department
may order other retired members of a Reserve component to active duty
with their consent in accordance with 10 U.S.C. 672(d).
(3) Involuntary order to active duty. The Secretary of a Military
Department may order any retired Regular member, retired Reserve member
who has completed at least 20 years of active Military Service, or a
member of the Fleet Reserve or Fleet Marine Corps Reserve to active duty
without the member's consent at any time to perform duties deemed
necessary in the interests of national defense in accordance with 10
U.S.C. 688. This includes the authority to order a retired member who is
subject to the Uniform Code of Military Justice (UCMJ) to active duty to
facilitate the exercise of court-martial jurisdiction under 10 U.S.C.
802(a). A retired member may not be involuntarily ordered to active duty
solely for obtaining court-martial jurisdiction over the member.
32 CFR 64.6 Appendix A to Part 64 -- Letter Format to Cognizant Service
Personnel Center Requesting Employee Be Screened From Retiree-Recall
Program
From: (employer-Agency or company)
To: (appropriate Military Service personnel center)
Subject: Request for Employee to Be Removed from Retiree-Recall
Program
This is to certify that the employee identified below is essential to
the nation's defense efforts in (his or her) civilian job and cannot be
mobilized with the Military Services in an emergency for the following
reasons:
Therefore, I request that (he or she) be exempted from recall to
active duty in a mobilization or national emergency and that you advise
me accordingly when that action has been completed.
The employee is:
Name of employee (last, first, M.I.)
Military grade and Military Service component
Social security number
Current home address (street, city, state, and ZIP code)
Title of employee's civilian position
Grade or salary level of civilian position
Date (YYMMDD) hired or assigned to position
--
Signature and Title of Agency
Company Official
32 CFR 64.6 Appendix B to Part 64 -- List of Reserve Personnel Centers
to Which Retiree-Recall Screening Determination Shall Be Forwarded
Commander
U.S. Army Reserve Personnel Center
ATTN: DARP-PAR-M
9700 Page Boulevard
St. Louis, MO 63132-5200
Commanding Officer
Naval Reserve Personnel Center
ATTN: NRPC Code 10
New Orleans, LA 70149
Commandant (Code RES)
Headquarters, U.S. Marine Corps
Washington, DC 20380
Air Reserve Personnel Center
7300 East First Avenue
Denver, CO 80280
Commandant (G-RSM-1)
U.S. Coast Guard
2100 Second St. SW
Washington, DC 20593
32 CFR 64.6 PART 65 -- ACCESSION OF CHAPLAINS FOR THE MILITARY SERVICES
Sec.
65.1 Purpose.
65.2 Applicability.
65.3 Policy.
65.4 Responsibilities.
65.5 Procedures.
Appendix to Part 65 -- Ecclestiastical Endorsing Agent Certification
Authority: 10 U.S.C. 532, 591, and EO 9397, 3 CFR, 1943-1948 Comp.,
p. 283.
Source: 53 FR 48898, Dec. 5, 1988, unless otherwise noted.
32 CFR 65.1 Purpose.
This part: (a) Revises 32 CFR Part 65 to update policy, procedures,
and responsibilities.
(b) Establishes the educational and ecclesiastical requirements for
appointment of military chaplains.
(c) Establishes criteria and procedures under which faith groups may
become ecclesiastical endorsing agents.
32 CFR 65.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments (including their National Guard and Reserve
components), and the Joint Staff (hereafter referred to collectively as
''DOD Components''). The term''Military Services,'' as used herein,
refers to the Army, Navy, Air Force, and Marine Corps.
32 CFR 65.3 Policy.
It is DOD policy that professionally qualified chaplains shall be
appointed to provide for the free exercise of religion for all members
of the Military Services, their dependents, and other authorized
persons. Persons appointed to the chaplaincy shall be able to perform a
ministry for their own specific faith groups, and provide for ministries
appropriate to the rights and needs of persons of other faith groups.
Persons appointed to the chaplaincy shall be capable of providing
professional staff support to the Military Department concerned.
32 CFR 65.4 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) may issue additions implementing guidance
consistent with DOD 5025.1-M, as appropriate.
(b) The Secretaries of the Military Departments shall follow the
policy and procedures in this Part to ensure that persons appointed to
the chaplaincy shall meet the minimum professional and educational
qualifications prescribed herein and any additional requirements
established by law and regulation for appointment as an officer and a
chaplain.
32 CFR 65.5 Procedures.
(a) Ecclesiastical Certification of Clergy
(1) To be considered for appointment and to serve as a chaplain,
clergy shall be certified by a DOD-recognized ecclesiastical endorsing
agent. The ecclesiastical certification shall attest that the
applicant:
(i) Is a fully qualified member of the clergy of a religious faith
group represented by the certifying Agency.
(ii) Is qualified to provide directly or indirectly for the free
exercise of religion by all members of the Military Services, their
dependents, and other authorized persons.
(2) The required ecclesiastical certification shall be made on DD
Form 2088, ''Ecclesiastical Endorsing Agent Certification.'' If the
applicant has completed a number of years of active professional
experience after the completion of educational requirements for the
chaplaincy, the certifying agent shall so state on DD Form 2088.
(3) Chaplains who fail to maintain their ecclesiastical certification
shall be processed in accordance with DOD Directive 1332.31. /1/
(b) Criteria for Ecclesiastical Endorsing Agencies. (1) Religious
faith groups that seek to become ecclesiastical endorsing agents for the
purpose of certifying the professional qualifications of clergy for
appointment as chaplains in the Military Services shall obtain DOD
recognition through the action of the Armed Forces Chaplains Board
(AFCB). To be considered for DOD recognition, each religious faith
group shall:
(i) Be organized exclusively or substantially to provide religious
services to a lay constituency.
(ii) Be able to exercise ecclesiastical authority to grant or
withdraw ecclesiastical certification.
(iii) Be able to provide continuing validation of ecclesiastical
certification.
(iv) Be able to certify clergy who are qualified to provide directly
or indirectly for the free exercise of religion by all members of the
Military Services, their dependents, and other authorized persons.
(v) Abide by the applicable DOD regulations and policies.
(2) Through the action of the AFCB, the Department of Defense may
revoke its recognition of an ecclesiastical endorsing agent that fails
to continue to meet the criteria of paragraphs (b)(1) (i) through (v) of
this section. The AFCB, before revoking the recognition of an
ecclesiastical endorsing agent, shall provide written notice to the
Agency concerned stating the reasons for the proposed revocation and
providing a reasonable opportunity for the Agency to reply in writing to
the AFCB.
(3) Religious faith groups recognized by the Department of Defense as
ecclesiastical endorsing agents may authorize third parties to act on
their behalf for accomplishing the administrative procedures in
accession of chaplains for the Military Services, and of maintaining
liaison with chaplains of the recognized faith group. Each such
authorization shall be made in writing by an official authorized by the
faith group to grant such authorization, and a copy of the authorization
shall be filed with the AFCB.
(c) Educational Requirements. (1) To be considered for appointment
as a chaplain in the Military Services, an applicant shall:
(i) Possess a baccalaureate degree of not less than 120 semester
hours from a college that is listed in the ''Education Directory,
Colleges and Universities'' /2/ or from a school whose credits are
accepted by a college listed in the Directory Education.
(ii) Have completed 3 resident years of graduate professional study
in theology or related subjects (normally validated by the possession of
a Master of Divinity degree, an equivalent degree, or 90 semester hours)
that lead to ecclesiastical certification as a member of the clergy
fully qualified to perform the ministering functions of a chaplain.
(2) The applicant shall complete the graduate professional study
referred to in 65.5(c)(1)(ii), at a graduate school listed in the
Education Directory, Colleges and Universities; an accredited school
listed in the ''Directory, ATS Bulletin, Part 4''; /3/ or from a school
whose credits are accepted by a school listed in the Directory or listed
as accredited in the ''Directory, ATS Bulletin, part 4.''
(d) Other Requirements. Applicants for the chaplaincy also shall
meet the requirements established by the Military Departments for
appointment as an officer and a chaplain.
/1/ Copies may be obtained if needed, from the U.S. Naval Publication
and Forms Center, 5801 Tabor Avenue, Attn: Code 301, Philadelphia, PA
19120.
/2/ Current edition published by U.S. Department of Education,
National Center for Education Statistics, Washington, DC 20202.
/3/ Current edition published by the Association of Theological
Schools, Vandalia, Ohio 45377.
32 CFR 65.5 Appendix to Part 65 -- Ecclestiastical Endorsing Agent
Certification
(54 FR 974, Jan. 11, 1989)
32 CFR 65.5 Pt. 65, App.
Insert illustration 0710
32 CFR 65.5 PART 66 -- RELEASE OF INFORMATION FROM MEDICAL RECORDS
Sec.
66.1 Purpose.
66.2 Applicability.
66.3 Policy.
Authority: 5 U.S.C. 301, 552.
Source: 32 FR 15111, Nov. 1, 1967, unless otherwise noted.
32 CFR 66.1 Purpose.
This part establishes Department of Defense policy governing the
release of information from medical records by the Secretaries of the
Military Departments and Directors of Defense Agencies, or their
designees for this purpose. These include the medical records of
present and former members of the Armed Forces, other individuals
treated in military medical facilities, and such other medical records
as may have been deposited with the DoD by other Federal and State
agencies. Release of information from medical records which are
properly included in official personnel folders of civilian employees is
governed by the provisions of subchapter 1, chapter 339, Federal
Personnel Manual.
32 CFR 66.2 Applicability.
The provisions of this part apply to the Military Departments and
Defense Agencies (hereinafter referred to collectively as ''DoD
components'').
32 CFR 66.3 Policy.
(a) Release to the public. Information contained in medical records
of individuals who have undergone medical examination or treatment is
personal to the individual and is therefore considered confidential.
Consequently, information from such medical records, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy, should not be made available to the public (see 5 U.S.C. 552,
and DoD Directive 5400.7 (32 FR 9666)).
(b) Release to the individual concerned. If an individual requests
information from his medical record, it shall be released to him unless,
in the opinion of the releasing authority, it might prove injurious to
his physical or mental health. In such an event, and where the
circumstances indicate it to be in his best interests, the individual
shall be requested to authorize the release of the information to his
next of kin, legal representative, or personal physician, as
appropriate.
(c) Release to representatives of the individual concerned. Medical
information shall be released to authorized representatives of the
individual concerned, upon the written request of the individual or his
legal representative. If the individual concerned is mentally
incompetent, insane, or deceased, the next of kin or legal
representative must authorize, in writing, the release of the
individual's medical records.
(d) Release to other government departments and agencies. Medical
information shall be released, upon request, to other departments and
agencies which have a proper and legitimate need for the information.
(1) Should the releasing authority have doubts as to whether the
requesting department has a proper and legitimate need for the
information, the latter will be requested to specify the purpose for
which the medical information will be used. In appropriate cases, the
requesting department will be advised that the information will be
withheld until it obtains the written consent of the individual
concerned.
(2) In honoring proper requests, the releasing authority shall
disclose only that information which is germane to the request. The
following are representative instances where other departments and
agencies, both Federal and State, may have a proper and legitimate need
for the information.
(i) Medical information is required in order to process a
governmental action involving the individual whose medical record is
sought. (The Veterans' Administration and the Bureau of Employee's
Compensation process claims in which the claimant's medical history is
relevant.)
(ii) Medical information is required in furtherance of the treatment
to an individual in the department's custody. (Federal and State
hospitals and prisons may need the medical history of their patients and
inmates.)
(e) Release to medical research or scientific organizations. Medical
information shall be released, upon the request of medical research or
scientific organizations or other qualified researchers when, in the
opinion of the releasing authority, release of the requested information
is in the public interest. Where possible, names of parties should be
deleted. The requesting organization or individual shall be advised
that the information must be held in confidence and that any published
reports resulting from such study shall not identify in any way the
individuals whose medical records were examined.
(f) Release to Federal or State courts or other administrative
bodies. (1) The foregoing limitations are not intended to preclude
compliance with lawful court orders calling for the production of
medical records in connection with civil litigation or criminal
proceedings, nor to preclude release of information from medical records
when required by law.
(2) Whenever the releasing authority has doubts as to whether the
supoena or other compulsory process has been issued by a court of
competent jurisdiction or by a responsible officer of any agency or body
having power to compel production, the Judge Advocate General (or other
cognizant legal officer) shall be consulted.
(g) Copies of medical records. Upon request, an individual or his
authorized representative entitled to have access to medical records,
will be furnished copies of the individual's medical records.
32 CFR 66.3 PART 67 -- PLACEMENT OF RESERVE COMPONENT UNITS IN LOCAL
COMMUNITIES
Sec.
67.1 Purpose.
67.2 Applicability and scope.
67.3 Policy.
67.4 Responsibilities.
67.5 Procedures.
Authority: 5 U.S.C. 301.
Source: 54 FR 11945, Mar. 23, 1989, unless otherwise noted.
32 CFR 67.1 Purpose.
This part provides standard procedures for placement of Reserve
Component (RC) units of the Military Departments to local communities.
32 CFR 67.2 Applicability and scope.
This part: (a) Applies to the Office of the Secretary of Defense
(OSD); the Military Departments and their Reserve Components (RCs);
the Organization of the Joint Chiefs of Staff (OJCS); the U.S. Coast
Guard and its Reserve Component (RC), with the concurrence of the
Department of Transportation (DoT); and the Defense Agencies.
(b) Does not apply to actions involving RC units of the same Military
Service being relocated within a local area dependent on the same source
of qualified manpower.
(c) Does not limit the rights of Governors of States to fix the
location of units of the National Guard within their respective borders,
as authorized by 32 U.S.C. 104(a), Chapter 1.
32 CFR 67.3 Policy.
(a) RC units located or to be located in a local community shall not
be larger than the number that reasonably can be expected to be
maintained at authorized or required strength in accordance with 10
U.S.C. 2234(1).
(b) The manpower potential of the area will be reviewed to determine
adequacy for meeting and maintaining authorized strengths. Considered
in the review shall be the number of persons living in the area who are
qualified for membership in those Reserve units in accordance with 10
U.S.C. 2234(1).
(c) The provisions of paragraphs (a) and (b) of this section, shall
be met before making expenditures for construction of a RC facility in
accordance with sections 2233 and 2234 of Title 10.
(d) Any plan for placement of RC units in a local community and the
provision of a facility for RC use shall ensure the greatest practicable
use of the facility jointly by units for two or more RCs in accordance
with section 2234(2) of Title 10.
(e) When a Military Department formulates a plan for the allocation
of a RC unit to a local community where a unit of that Military
Department formerly did not exist, or considers increasing the structure
or number of existing units, the Secretary of the Military Department
concerned shall consider the factors in 67.5(a) and shall coordinate
such a tentative location with the Secretaries of the other Military
Departments.
(f) The Military Department, through command channels, also may
utilize the advice of all military and civilian Agencies concerned with
RC facilities, including the Joint Service Reserve Component Facility
Boards (DoD Instruction 1225.7).
32 CFR 67.4 Responsibilities.
(a) The Secretary of the Military Departments shall:
(1) Coordinate with other Military Departments to ensure that
placement of RC units adversely shall not affect the ability of other
Military Department RC units to obtain or maintain the manpower
necessary for them to achieve satisfactory personnel readiness levels
and to ensure greatest practical use of any facility constructed or
improved in accordance with 10 U.S.C. 2234.
(2) Ensure maximum use of existing facilities and coordination with
other Military Services to determine availability and use of existing
facilities and/or joint use of planned facilities.
(b) The Assistant Secretary of Defense (Reserve Affairs) ASD(RA)
shall resolve cases when complete coordination may not be effected under
67.3 and 67.5.
32 CFR 67.5 Procedures.
(a) When approval is sought for the placement of a new RC unit in a
local community or the construction of a RC facility, the Military
Service concerned shall review the RC manpower potential of the area to
determine whether it is adequate to meet and maintain the authorized
strengths (approved manning levels) of its RC units considering the
factors outlined in paragraphs (a)(1) through (4) of this section. This
review shall address, but not be limited to, the following:
(1) The manpower market potential of the area to include the
following:
(i) Age, education, and/or skill distribution of the population.
(ii) Determine if a potential recruiting conflict will exist among
Services in specialized skills of prior Service personnel. Requests for
this information may be submitted to the following: Director, Defense
Manpower Data Center, 1600 N. Wilson Boulevard, Suite 400, Arlington,
VA 22209.
(iii) Industrial and professional community composition, as related
to skill requirements of the units.
(iv) Any manpower factors that might affect RC participation in the
area.
(2) The history of authorized and actual strengths of RC units in the
area, the authorized strength of units allocated to the area but not yet
activated of all RCs, and other items relating to the following:
(i) Community attitude toward RC units.
(ii) Projected growth and composition of the population.
(iii) Enlisted and reenlistment trends of other RC units in the
geographic area.
(3) Environmental impact of unit location on the community.
(4) The geographical site selection of the unit must consider the
proposed unit's relationship to other units and headquarters in its
wartime commmand.
(b) If a determination is made to proceed with locating the unit in
the local community following the procedures in 67.4(a), the Military
Service concerned shall coordinate with other Military Services having
or desiring to establish RC units in the area. Based on this
coordination, the following statement shall be included in project
justification documents:
The Reserve manpower potential to meet and maintain authorized
strengths of all Reserve units in the areas where units are to be
located has been reviewed in accordance with the procedures described in
DoD Directive 1200.1. It has been determined, in coordination with the
other Military Departments having Reserve units in the area, that the
number of Reserve components presently located in the area, and those
units having been allocated to this area for future activation, is not
and shall not be larger than the number that reasonably may be
maintained at authorized strength. (32 CFR Part 67)
(1) The statement in 67.5(b) shall be certified by the RC chief, or
designee, and retained in the project file by the RC concerned.
(2) Individual manpower determination statements shall be
consolidated by the RCs and included as a program statement when the
military construction program is submitted to the Secretary of Defense
for congressional review in accordance with DoD 7110.1-M.
(3) Resource decisions shall comply with DoD Instruction 7041.3.
(c) The procedure for establishing or expanding a unit a local
communities first shall consider joint use of existing facilities by
units of two or more RCs. Acquisition, by purchase, lease, transfer,
construction expansion, rehabilitation, or conversion of facilities for
the RCs shall be in accordance with 10 U.S.C. 133 and DoD Instruction
1225.7.
32 CFR 67.5 PART 68 -- PROVISION OF FREE PUBLIC EDUCATION FOR ELIGIBLE
CHILDREN PURSUANT TO SECTION 6, PUBLIC LAW 81-874
Sec.
68.1 References.
68.2 Purpose.
68.3 Applicability and scope.
68.4 Policy.
68.5 Definitions.
68.6 Responsibilities.
68.7 Effective date and implementation.
Authority: 20 U.S.C. 241.
Source: 52 FR 44389, Nov. 19, 1987, unless otherwise noted.
32 CFR 68.1 References.
(a) Public Law 97-35, ''Omnibus Budget Reconciliation Act of 1981,''
section 505(c), August 13, 1981 (20 U.S.C. 241 note).
(b) Public Law 81-874 dated September 30, 1950, section 6, as amended
(20 U.S.C. 241).
(c) Public Law 95-561, ''Defense Dependents' Education Act of 1978,''
sections 1009 and 1031(a), November 1, 1978 (20 U.S.C. 241).
(d) Memorandum of Understanding Between The Department of Defense and
The Department of Education, August 16, 1982.
(e) Federal Register Document 84-11282, ''Process for Section 6
Schools Operated by the Department of Defense,'' Federal Register,
Volume 49, Number 82, page 18028, April 26, 1984.
(f) Assistant Secretary of Defense (Force Management & Personnel)
Memorandum, ''Education of Handicapped Students in Section 6 Schools
Operated by the Department of Defense,'' December 10, 1986.
(g) Public Law 94-142, ''Education for All Handicapped Children Act
of 1975,'' as amended (20 U.S.C. 1401 et seq.).
(h) DoD Directive 1020.1, ''Nondiscrimination on the Basis of
Handicap in Programs and Activities Assisted or Conducted by the
Department of Defense,'' March 31, 1982.
(i) DoD 7220.9-M, ''Department of Defense Accounting Manual,''
October 1983, authorized by DoD Instruction 7220.9, October 22, 1981.
(j) DoD Directive 7600.6, ''Audit of Nonappropriated Funds and
Related Activities,'' January 4, 1974.
(k) DoD Directive 5500.7, ''Standards of Conduct,'' January 15, 1977.
32 CFR 68.2 Purpose.
This part:
(a) Establishes policies and prescribes procedures for the Department
of Defense (DoD) to make arrangements (as defined in 68.5) for the
provision of free public education to eligible dependent children as
authorized by 68.1 (a), (b), and (c).
(b) Implements 68.1 (a), (b), (d), and (e).
32 CFR 68.3 Applicability and scope.
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Military
Departments, and the Defense Agencies.
(b) The schools operated by DoD within the Continental United States
(CONUS), Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa,
the Northern Mariana lslands, and the Virgin Islands.
32 CFR 68.4 Policy.
(a) In conformity with 68.1 (a), (b), and (c), it is DoD policy that
dependent children of U.S. military personnel and federally employed
civilian personnel residing on Federal property be educated, whenever
suitable, in schools operated and controlled by local public school
systems.
(b) When it is not suitable for the children of U.S. military
personnel and federally employed civilian personnel to0attend a locally
operated public school, the Secretary of Defense, or designee, shall
make arrangements for the free public education of such children. These
arrangements may include the establishment of schools within the United
States and specified possessions.
(c) The arrangements for such free public education shall be made by
the Secretary of Defense, or designee, either with a local educational
agency, or with the Head of a Federal Department or Agency, whichever in
the judgment of the Secretary, or designee, appears to be more
applicable. If such an arrangement is made with the Head of a Federal
Department or Agency, either it must administer the property on which
the children to be educated reside or, if the local schools are
unavailable to the children of members of the Armed Forces on active
duty because of official State or local action and no suitable free
public education may be provided by a local educational agency, the
Department or Agency must have jurisdiction over the parents of some or
all of such children.
(d) Section 6 School Arrangements are required, to the maximum extent
practicable, to provide educational programs comparable to those being
provided by local public educational agencies in comparable communities
in the State where the Section 6 School Arrangement is located. If the
Section 6 School Arrangement is outside of CONUS, Alaska, or Hawaii, it
shall provide, to the maximum extent practicable, educational programs
that are comparable to the free public education provided by the
District of Columbia.
(e) Section 6 School Arrangements operated by DoD under 68.1 (a)l
(b), and (d) shall comply, except as provided in this paragraph, with
68.1(g). lf the State or other jurisdiction on which a Section 6 School
Arrangement's educational comparability is based has adopted a ''State
plan'' for the implementation of 68.1(g) that Section 6 School
Arrangement shall provide its handicapped students a free appropriate
public education, as defined in 68.1(g). That education, except as
follows in this paragraph, is consistent with such State plan. To
satisfy this responsibility, Section 6 School Arrangements shall conform
to the substantive and procedural provisions of 68.1(g), except for
those relating to impartial due process hearings in section 1415 of
68.1(g). The procedures of such Section 6 School Arrangements for the
identification, assessment, and programming of handicapped students in
special education and related services must conform to the comparable
State's regulatory guidelines. Complaints with respect to the
identification, evaluation or educational placement of, or the free
appropriate public education provided to, students in such a Section 6
School Arrangement who are or may be handicapped shall be investigated
under enclosure 5 to DoD Directive 1020.1 /1/ ( 68.1(h)). lf the State
on which a Section 6 School Arrangement's comparability is based has not
adopted a State plan, the State plan of an adjacent State must be
followed. If no adjacent State has adopted a State plan, the State plan
of another State that is similar to the State in which the Section 6
School Arrangement is located shall be selected.
(f) After consultation with the Military Departments, funds shall be
made available for the operation and maintenance of Section 6 School
Arrangements, on either a direct or reimbursable basis, to the
comptroller at the respective military installation. These funds shall
remain separate and distinct from the funds of the individual Military
Services.
(g) Attendance in Section 6 School and Special Arrangements within
CONUS, Alaska, and Hawaii is limited to eligible dependent children
under 68.1(b). Guidance, consistent with 68.1 (b) and (c) for student
eligibility for Section 6 School Arrangements located outside of CONUS,
Alaska, and Hawaii shall be established by the Military Department
concerned after coordination and approval by the General Counsel of the
Department of Defense, or designee, and the Assistant Secretary of
Defense (Force Management and Personnel), or designee.
(h) Where a member of the Armed Forces is transferred or retires and
the member's family moves after the start of the school year from
on-base (post) housing, the member's children shall be permitted to
continue in attendance at the Section 6 School Arrangement for the
remainder of the school year during which the transfer or retirement
occurred, if the child is residing with a parent or legal guardian or
another person acting in loco parentis.
(i) Where a member of the Armed Forces is assigned to an installation
on which there is a Section 6 School Arrangement and is assigned on-base
(post) family housing that is expected to be available for occupancy and
to be occupied within 90 school days from the reporting date, the
member's children may be permitted to attend the school while residing
in an area adjacent to such Federal property. Transportation for
children attending a Section 6 School Arrangement under these conditions
is the responsibility of the parent.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, ATTN: Code 1052, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 68.5 Definitions.
Adjacent area. A geographic location that is next to or near Federal
property. This normally should include a student commuting area within
45 minutes of the Federal property, unless another area identified as
adjacent is designated specifically by an administrator of the Federal
property; i.e., the installation commander.
Arrangements. Actions taken by the Secretary of Defense to provide a
free public education to dependent children under Pub. L. 81-874
through, first, Section 6 School Arrangements or, second, Section 6
Special Arrangements:'
(a) Section 6 School Arrangement. When a DoD-operated scxool is
established on Federal property to provide a free public education for
eligible children or, if not established on such property, the eligible
child resides on such property.
(b) Section 6 Special Arrangement. An agreement, under 68.1(b),
between the Secretary of Defense, or designee, the ASD(FM&P), or
designee, or the Secretary of a Military Department, or designee, and a
local public education agency whereby a school or a school system
operated by the local public education agency provides educational
services to eligible dependent children of U.S. military personnel and
federally employed civilian personnel. Arrangements result in partial
or total Federal funding to the local public education agency for the
educational services provided.
Comparability. Comparability is the act of demonstrating that the
educational services and programs, school plant and facilities, budget
and per-pupil expenditures, and all associated activities and services
provided in Section 6 School Arrangements for the free public education
of eligible dependent children are, to the maximum extent practicable,
equivalent in quality and availability to those provided by school
districts in the State where the Section 6 School Arrangement is located
or the district(s) to which it is compared. Each Section 6 School
Arrangement, in coordination with the Military Department concerned,
shall provide an annual statement, with supporting documentation, which
demonstrates its comparability.
Dependent children. Children who reside on Federal property, or are
minor dependents who are the children, stepchildren, adopted children,
or wards of U.S. military sponsors or federally employed sponsors, or
who are residents in the households of bona fide sponsors who stand in
loco parentis to such individuals and who receive one-half or more of
their support from such sponsors, and are within the age limits for
which the applicable State provides free public education.
Federal property. Real property that is owned or leased by the
United States.
Free public education. Education that is provided at public expense
under public supervision and direction without charge to the sponsor of
a child, and that is provided at the elementary or secondary school
level of the applicable State. The term shall not include any education
provided beyond grade 12, except in the case of State policy regarding
the education of handicapped students, nor does it preclude the
collecting of tuition from an Agency responsible for the assignment of a
child's sponsor resulting in the attendance of the child of a Section 6
School Arrangement.
Local educational agency. A board of education or other legally
constituted local school authority having administrative control and
direction of free public education in a county, township, independent,
or other school district in a State. The term includes any State Agency
operating and maintaining facilities for providing free public
education.
Parent. Includes a legal guardian or another person standing in loco
parentis.
State. A State, Puerto Rico, Wake Island, Guam, the District of
Columbia, American Samoa, the Northern Mariana lslands, or the Virgin
Islands.
State educational agency. The officer or Agency primarily
responsible for State supervision of public elementary and secondary
schools.
32 CFR 68.6 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)), or designee, shall:
(1) Ensure the development of policies and procedures for the
operation, management, budgeting (in accordance with guidance provided
by the Assistant Secretary of Defense (Comptroller) (ASD(C)),
construction, and financing of Section 6 Schools and for Section 6
Special Arrangements.
(2) Ensure that arrangements shall be made for the free public
education of eligible dependent children in CONUS, Alaska, Hawaii,
Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana
Islands, and the Virgin Islands, under 68.1 (a), (b), and (c).
(3) Ensure the establishment of elected school boards in Section 6
School Arrangements operating under 68.1 (a) and (b).
(4) Ensure that the free public education being provided is, to the
maximum extent practicable, of the kind and quality as that being
provided by comparable public school districts in the State in which the
Section 6 School Arrangement or Section 6 Special Arrangement is located
or, if outside of CONUS, Alaska, and Hawaii, as that being provided by
the District of Columbia public schools.
(5) Ensure the establishment of audit procedures for reviewing
funding of Section 6 School Arrangements and Section 6 Special
Arrangements under 68.1 (a), (b), and (c).
(6) Ensure timely and accurate preparation of budget execution
reports and full compliance with accounting requirements in accordance
with DoD 7220.9-M /2/ ( 68.1(i)).
(7) Approve guidance for student eligibility established by a
Military Department for Section 6 School Arrangements located outside of
CONUS, Alaska, and Hawaii.
(b) The General Counsel of the Department of Defense (GC, DoD), or
designee, shall:
(1) Approve guidance established by a Military Department for student
eligibility for Section 6 School Arrangements located outside of CONUS,
Alaska, and Hawaii.
(2) Provide legal advice for the implementation of this part.
(c) The Secretaries of the Military Departments, or designees, shall:
(1) Comply with this Directive, including policies and procedures
promulgated under 68.6(a)(1), and ensure that Section 6 School
Arrangements on their respective installations or under their
jurisdiction are maintained and operated under this part.
(2) Submit budgets to the ASD(FM&P) for operation and maintenance,
procurement, and military construction for each Section 6 School
Arrangement and each Section 6 Special Arrangement under OSD guidelines.
(3) Ensure that there is an elected school board at each Section 6
School Arrangement.
(4) Ensure the establishment of a means for employing personnel and,
as required, for programming manpower spaces for such employees, all
subject to applicable laws and regulations.
(5) Ensure that each Section 6 School Arrangement has current
operating guidelines.
(6) Ensure that nonappropriated funds and related activities of
Section 6 School Arrangements are reviewed under DoD Directive 7600.6
/3/ ( 68.1(j)).
(7) Establish guidance, consistent with 68.1 (b) and (c), for
student eligibility to attend Section 6 School Arrangements located
outside of CONUS, Alaska, and Hawaii and operated by the Military
Department concerned. Gain the approval of the ASD(FM&P), or designee,
and the GC, DoD, or designee, before implementation.
(d) The Installation Commanders, or for Puerto Rico, the Area
Coordinator, shall:
(1) Provide resource and logistics support at each Section 6 School
Arrangement located on the installation.
(2) Ensure the establishment and operation of an elected school board
at the Section 6 School Arrangement.
(3) Ensure the implementation of DoD Directive 5500.7 /4/ ( 68.1(k))
and that all Section 6 School Arrangement personnel are counseled and
familiarized with its contents.
(4) Provide installation staff personnel to advise the school board
in budget, civil engineering, law, personnel, procurement, and
transportation matters, when applicable.
(5) Disapprove actions of the school board that conflict with
applicable statutes or regulations. Disapprovals must be in writing to
the school board and shall note the specific reasons for the
disapprovals. A copy of this action shall be forwarded through channels
of the Military Department concerned to the ASD(FM&P), or designee.
(6) Ensure the safety of students traveling to and from the on-base
(post) school(s).
(7) Ensure that comptrollers and other support elements comply with
the authorized execution of funds for Section 6 School Arrangements in
accordance with the budget approved by the ASD(FM&P), or designee.
(e) The Section 6 Dependents' School Board shall:
(1) Review and monitor school expenditures and operations, subject to
audit procedures established under this part and consistent with 68.1
(a) and (b).
(2) Conduct meetings, approve agendas, prepare minutes, and conduct
other activities incident to and associated with Section 6 School
Arrangements.
(3) Recruit and select a Superintendent for the Section 6 School
Arrangement under the school board's jurisdiction.
(4) Provide the Superintendent with regular constructive written and
oral evaluations of his or her performance. Evaluations should be
linked to goals established by the school board with the assistance of
the Superintendent.
(5) Provide the Superintendent the benefit of the school board's
counsel in matters on individual school board member's expertise.
(6) Ensure the attendance of the Superintendent, or designee, at all
school board meetings.
(7) Review and approve school budgets prior to submission to the
ASD(FM&P), or designee, through channels of the Military Department
concerned.
(8) Establish policies and procedures for the operation and
administration of the Section 6 School Arrangement(s).
(9) Provide guidance and assistance to the Superintendent in the
execution and implementation of school board policies, rules, and
regulations.
(10) Consult with the Superintendent on pertinent school matters, as
they arise, which concern the school and on which the school board may
take action.
(11) Channel communications with school employees that require action
through the Superintendent, and refer all applications, complaints, and
other communications, oral or written, to the Superintendent in order to
ensure the proper processing of such communications.
(12) Establish policies and procedures for the effective processing
of, and response to, complaints.
(f) The Section 6 School Arrangement Superintendent shall:
(1) Serve as the chief executive officer to the school board to
ensure the implementation of the school board's policies, rules, and
regulations.
(2) Attend all school board meetings, or send a designee when unable
to attend, sitting with the school board as a non-voting member.
(3) Provide advice and recommendations to the school board and the
Installation Commander or Area Coordinator on all matters and policies
for the operation and administration of the school system.
(4) Recruit, select, and assign all professional and support
personnel required for the school system. Teachers and school
administrators shall hold, at a minimum, a current and applicable
teaching or supervisory certificate, respectively, from any of the 50
States, Puerto Rico, the District of Columbia, or the DoD Dependents'
Schools system. Additional certification may be necessary to comply
with respective State or U.S. national accreditation association
standards and requirements.
(5) Determine retention or termination of employment of all school
personnel under applicable Federal regulations.
(6) Organize, administer, and supervise all school personnel to
ensure that the curriculum standards, specialized programs, and level of
instruction are comparable to accepted educational practices of the
State or the District of Columbia, as applicable.
(7) Be responsible for the fiscal management and operation of the
school system to include execution of the budget as approved by
ASD(FM&P), or designee, and in accordance with school board guidance.
(8) Ensure the evaluation of all school employees on a regular basis.
(9) Ensure the maintenance of all school buildings, grounds, and
property accounting records.
(10) Ensure the procurement of necessary school supplies, equipment,
and services.
(11) Ensure the preparation of the annual Section 6 School
Arrangement budget as approved by the school board, and as required by
the ASD(FM&P), or designee, and the Military Department concerned, in
accordance with guidance provided by the ASD(C), or designee, under DoD
7220.9-M.
(12) Ensure the maintenance of a professional relationship with local
and State school officials.
(13) Ensure, wherever practicable, the maintenance of accreditation
of the Section 6 School Arrangement by the State and/or applicable
regional accreditation agencies.
(14) Operate the school consistent with applicable Federal statutes
and regulations, and with State statutes and regulations that are made
applicable to the Section 6 School Arrangement by this part.
(15) Ensure the submission of an annual statement to the Military
Department concerned demonstrating comparability of the free public
education provided in the Section 6 School Arrangement(s).
(16) Ensure the implementation of the local State plan or regulatory
guidelines for compliance with 68.1(g). If the State on which a Section
6 School Arrangement's comparability is based has not adopted a State
plan, the responsible Section 6 School System Superintendent shall
choose the State plan of an adjacent State to follow. If no adjacent
State has adopted a State plan, the Superintendent shall select the
State plan of another State that is similar to the State in which the
Section 6 School Arrangement is located.
(g) Section 6 School Board Elections. A school board for a Section 6
School Arrangement, as authorized by section 1009(d) of 68.1(c), shall
be empowered to oversee school expenditures and operations, subject to
audit procedures established by the Secretary of Defense and under
68.1(b). The Secretary of the respective Military Department shall:
(1) Ensure that the school board is composed of a minimum of three
members elected only by parents or legal guardians (military or
civilian) of students attending the school at the time of the election.
The terms for school board members are to be established as between one
and three years.
(2) Ensure the following procedures for a school board election are
observed:
(i) Parents shall have adequate notice of the time and place of the
election.
(ii) Election shall be conducted by secret ballot. The candidate(s)
receiving the greatest number of votes shall be elected as school board
member(s).
(iii) Personnel employed in the school system shall not be school
board members, except for the Superintendent, who serves as a non-voting
member.
(iv) Nominations shall be by petition of parents of students
attending the school at the time of the election. Votes may be cast at
the time of election for write-in candidates who have not filed a
nomination petition if the write-in candidates otherwise are qualified
to serve in the positions sought.
(v) The election process shall provide for the continuity of school
board operations.
(vi) Vacancies that occur among members of the elected school board
may be filled to complete unexpired terms by either election of members
by a special election process or by a school board election process if
at least three school board members serving were elected by parents.
Members elected to fill unexpired terms shall not serve more than one
year, unless elected by parents of the students.
(vii) The responsibility for developing the plans for and conducting
the school board election rests with the Superintendent and the school
board.
(52 FR 44389, Nov. 19, 1987, as amended at 53 FR 49981, Dec. 13,
1988)
/2/ Copies may be obtained, at cost, from the U.S. Department of
Commerce, National Technical Information Service, 5285 Port Royal Road,
Springfield, Va 22161.
/3/ See footnote 1 to 68.4(e).
/4/ See footnote 1 to 68.4(e).